R v Pitabelama [2018] SBHC 98; HCSI-CRC 439 of 2018 (28 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Pitabelama
Citation:
Date of decision:	28 November 2018
Parties:	Regina v Collin Minja Pitabelama
Date of hearing:	21 and 23 November 2018
Court file number(s):	CRC 439 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	The Sentence is 4 years imprisonment The time or period spent in custody by the accused to be deducted from the sentence.
Representation:	Ms. F. Fakarii and I. Kekou for the Prosecution Mr B. Ifuto’o for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code ( Sexual Offences) (Amendment) Act 2016
Cases cited:	R v Ligiau and Dori, R v Soni, Regina v Maewanusi, Regina v Manisonia

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 439 of 2018

REGINA

v

COLLIN MINJA PITABELAMA

Date of Hearing: 21 & 23 November 2018
Date of Judgment: 28 November 2018

Ms. F. Fakarii and I. Kekou for the Prosecution
Mr B. Ifuto’o for the Accused

SNTENCE

Introduction

The accused Collin Minja Pitabelama from Sasamunga village Choisuel Province is charged with one count of rape contrary to section 136 (f) (1) (a) &(b) of the Penal Code (Cap 26) as amended (Sexual Offences) (Amendment) Act 2016. Accused pleaded guilty and accordingly I convicted him on the charge of rape.

Brief summary of the case

Briefly the summary of the case is the complainant was requested to go with Lika and Mivan to collect firewood. But Lika and Mivan were not at home so the complainant decided to go by herself. She took a bush and a rope set out by foot.

On her way at Kekehe she saw at the seaside, the accused, Fred and Eluida playing music. She walked quietly and the boys did not say anything to her.

As she continued her walk complainant met Thressy Qilalasi and asked where she was going and complainant told her that she going to collect firewood.

Complainant continued walking and a while she looked back and saw the accused was followed her behind and riding on a bicycle. Complainant suspected the accused would do something to her, afraid and started to cry. The accused shouted for her to wait and it was about 3 pm.

Accused caught with complainant and asked her for sex but the complainant refused and she cried. The accused threatened the complainant that if she refused to have sex with him he will report to her teacher for her past sexual encounters if she refused to have sex with him. As a result of that threat she had sexual intercourse with the accused.

Accused then parted the complainant’s leg and lifted to his shoulder, held his erected penis and penetrated to her vagina and moved his bottom up and down. He asked the complainant to move her ash up and down but she refused and cried. He moved his bottom up and down a while but could not ejaculate. Accused pulled out his penis and asked the complainant to suck it so that he could ejaculate but she refused. After the sexual intercourse the accused left her.

The complainant cried from her trauma and went back home. She could not stop crying and her guardian took her to Taro Hospital and she was admitted for a night for depression.

The Law

Section 136 (f) (1) (a) &(b) of the Penal Code (Cap 26) as amended (Sexual Offences) (Amendment) Act 2016 carries a maximum sentence of life imprisonment. The maximum sentence is reserved only for the worst kind of cases. This case is not of such but if the aggravating features are present in the case it will be taken into account when determining the appropriate sentence to impose on the accused.

In this jurisdiction the starting point for sentencing on charge of rape appears to be settled by the case famous case of R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986) with the approval by the Court of Appeal in the case Soni v Regina [2013 SBCA 6, Criminal Case 27, 28, 35 of 2012 when the Court of Appeal ruled that in the absence of any aggravating or mitigating factors in a contested case the starting point for rape is 5 years.

In the case Regina v Maewanusi [2010] SBHC 53; HCSI-CRC 384 of 2009 (17 August 2010) Judge Foukona when sentencing the accused in this non-contested said that the level of starting point should be lower than the starting point ascribed in Ligiau and Dori's case on the fact the case is not contested.

His Lordship Palmer CJ in the Regina v Manisonia [2017] SBHC 107; HCSI-CRC 241 of 2017 (23 November 2017) stated that in a non-contested case, with an early guilty plea after receiving instructions from a lawyer, the starting point is less than 5 year.

The above cases settle or resolve the starting point for sentencing on charge of rape with the non-contested case in this jurisdiction.

With this case, there are no aggravating features, though the Prosecution submitted it is so it was the isolated place and the act was unprovoked. But I am not convinced they are so in this case.

I give credit to you for plea of guilty and no previous conviction. You have entered an early guilty plea and so you should deserve a sentence of non-contested on the charge of rape.

Before pronouncing a sentence for you, I wish to say that sexual offences are now the becoming the regular cases before the courts and are also continually reported by the media. With this court circuit to Gizo, the majority of cases that came before me for arraignments or pleas and mentions are sexual offences as rape, incest and defilement or sexual intercourses with a child under 15 years of age.

And I wish to warn those who are practicing these illegal means or intend to involve in this type of sexual behaviours that the court will not tolerate this sexual offence and anyone found guilty of such offences will expect considerable years in prison.

For this case, the accused Collin Minja Pitabelama is sentenced to 4 years imprisonment.

ORDERS

1. The sentence is 4 years imprisonment,
2. The time or period spent in custody by the accused to be deducted from the sentence.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge