R v Pitagai [2020] SBHC 104; HCSI-CRC 427 of 2020 (7 November 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Pitagai
Citation:
Date of decision:	7 November 2020
Parties:	Regina v Hickson Pitagai
Date of hearing:	6 November 2020
Court file number(s):	427 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. Defendant is convicted on one count of having sexual intercourse with a child under 15 years of age contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offence) Act 2016. 2. The defendant is hereby sentence to 4 years imprisonment. 3. I direct that the time spent in pre-trail custody is deducted from total sentence.
Representation:	Rachel S Olutimayin for the Prosecution Frank Kama & Paul None for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S.139 (1)
Cases cited:	Mulele v DPP and Poini v DPP [1986] SBCA6, R v Topo [2018] SBHC 99, Bosaruete v Regina [2013] SBCA 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 427 of 2020

REGINA

V

HICKSON PITAGAI

Date of Hearing: 6 November 2020
Date of Sentence: 7 November 2020

Sitting in Gizo: High Court Circuit

Rachel S Olutimayin for the Prosecution
Frank Kama & Paul None for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 21^st August 2020, the defendant Mr Hickson Pitagai is charged with one count of having sexual intercourse with a girl under 15 years contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offence) Act 2016. Upon being arraigned on the 4^th November 2020, he had entered a guilty plea. Agreed facts were tendered in court on the 6^th November 2020 and followed by sentencing submissions from both the prosecution and the defence.
2. The offence for which you are charged is very serious and carries a maximum term of life imprisonment.
3. The facts of your case are that the complainant was born on the 19^th June 2006. She was a grade 5 student at Tagibangara Primary School and was 12 years old in 2018.
4. On an unknown date in December 2018, the complainant and one of her friends, Goriti had gone to climb a berry tree, located beside the community church at Ghaghara village.
5. On their way, the complainant and Goriti saw you standing at the veranda of the community rest house. You called out and told them to go and climb betel-nut for you.
6. After getting a string bag from their house, the complainant went back to the rest house. Her friend Goriti used the string bag and climbed the betel-nut.
7. Whilst her friend was climbing, the complainant stood underneath the betel-nut. You then called the complainant to help you put a keyboard into its case.
8. The complainant climbed into the house. She helped you to put the keyboard into its case. After that, you held the complainant’s hand and you both went into a room inside the house and he had sex with her by pushing his erected penis into her vagina. You then wore your clothes and left the house. The complainant also left thereafter.
9. The matter was reported to the police and you were arrested on the 24^th August 2019. On the 25^th August 2019, you participated in a record of interview at Taro Police Station. You were formally remanded in custody on the 26^th August 2019.
10. I have heard submissions form both counsel for the prosecution and your lawyer and I am grateful for the well prepared submissions and case authorities cited.
11. Mr Andrew Meioko for the prosecution had submitted that there are number of aggravating features in your offending. In the cases of Mulele v DPP and Poini v DPP [1986] SBCA6, the court of Appeal had stated that in sexual offences cases, four factors should be considered. They include age disparity abuse of position of trust, subsequent pregnancy and character of the girl herself.
12. In your case, the consideration that this court has to take into account is your age disparity. You were 20 years old in 2018. The complainant was 12 years old. Your age disparity was 8 years. I must also take into account that the complainant was below the consenting age. She was just a child. You have corrupted the child’s mind.
13. From the agreed facts as presented to the court, your action was premeditated. You lurked the child into the house and had sex with her. You were a young adult and you have allowed your sexual lust to take control of you.
14. On your behalf, your lawyer had submitted that you have pleaded guilty to your offending. I give you credit for your early guilty plea. Your guilty plea can be seen as a sign of remorse on your part. It also shows that you have own up to your offending and I sincerely hope you have learnt from your mistake.
15. You have no previous convictions. You are a first offender. I have also take into account your youthfulness and I can see a high possibility of rehabilitation in your life.
16. I have heard that you were a Form 5 student in 2018. The fact that your education was shattered as a result of your offending is a punishment in itself and I take that fact into account.
17. I have taken into account the fact that your parents have paid compensation of $200.00 to the complainant’s family. There was a reconciliation held and the relationship between the two families have been restored.
18. I am assisted by the case authorities cited by both counsel for the crown and the defence. The sentencing ranges in the cases cited is an imprisonment term of between 4 years to 11 years. I refer to the cases of R v Topo [2018] SBHC 99 and the case of Bosaruete v Regina [2013] SBCA 16 in this sentence.
19. After having said the above. I am very concerned that this type of offending is becoming very prevalent in our communities. The sentence that I am going to impose will not only reflect the seriousness of such offending but also to show the offender and would-be offenders that the courts will not tolerate and will not condone such offendings.
20. For the offence of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offences) Act 2016, I hereby sentence you to 4 years imprisonment.

Orders of the Court

1. Defendant is convicted on one count of having sexual intercourse with a child under 15 years of age contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offence) Act 2016.
2. The defendant is hereby sentence to 4 years imprisonment.
3. I direct that the time spent in pre-trail custody is deducted from total sentence.

THE COURT
Hon. Justice Maelyn Bird
Puisne Judge