R v Sape [2020] SBHC 118; HCSI-CRC 539 of 2019 (27 November 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sape
Citation:
Date of decision:	27 November 2020
Parties:	Regina v Wilson Sape
Date of hearing:	25 November 2020
Court file number(s):	539 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. Ct 1 4 years imprisonment Ct 24 years imprisonment 2. Sentences to be served concurrently, 3. Time spent in remand for the charges to be deducted from the sentences, 4. No further orders
Representation:	Meioko A for the Prosecution Gray G and Kama F for Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S. 139 (1) (a) [Cap 26]
Cases cited:	R v Pana [2013] SBHC 88, R v Manele [2020] SBHC 37, R v Faenle [2019] SBHC 76, Mulele v Director of Public Prosecution and Poini v Director of Pubic Prosecution [1985] SBCA 6

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 539 of 2019

REGINA

V

WILSON SAPE

Court Circuit: Gizo

Date of Hearing: 25 November 2020
Date of Sentence: 30 November 2020

Counsel
Meioko for the Prosecution
Gray G and Kama for Accused

SENTENCE

Maina PJ:

1. You, Wilson Sape had pleaded guilty and convicted on 2 counts of sexual intercourse with a child under 15 years of age contrary to section 139 (1) (a) of the Penal Code [Cap 26] as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

The complainant AH was born on 3^rd December 2006 and was 12 years and or being under 13 years when you, the accused had sexual intercourse with her at Kena village Kolombangara, Western Province.

2.0Facts

The complainant was residing with her aunty Reima Asa at Kena village at that time and the house the complainant was residing in was close to the defendant’s house. Consequently the complainant and the defendant knew each other well as neighbors. Complainant usually look after her auntie’s child and they usually go to the defendant’s house. As a result, both had built and a relationship between them.

3. The first incident occurred on 28^th May 2019. The complainant was sleeping inside a room with Reima Asa and her child. Defendant came into the room and pulled the complainant’s hand and woke her up. He said to complainant “aria umi go lo house”. Complainant got up from where she was sleeping and followed the defendant to his house.

When they reached the defendant’s house he told the complainant to go inside his room. He followed her into the room and the complainant laid down on a mattress in the room. Defendant told the complainant to remove her clothes and she removed her clothes and she was laying on the bed naked. The defendant then started to suck the complainant’s breast and kissed on the mouth. He took out his penis and rubbed it to the complainant’s vagina several times and he put his erected penis into her vagina. It was very to the painful victim to the complainant as his penis was too big. The defendant had sexual intercourse with her until he ejaculated. After they had sexual intercourse the complainant wore her clothes and went back to their house.

4. The second incident occurred on the evening of 29^th May 2019 as the defendant and complainant agreed to meet later the evening. At about midnight, the defendant came to the complainant’s house and she followed the defendant to his house. At the house the defendant and the complainant had sexual intercourse. The defendant took his erected penis and pushed it the complainant’s vagina. He had sexual intercourse with her until he ejaculated. After the sexual intercourse the complainant wore her clothes and walked back to their house. It was at that night the family of the girl were looking when they saw her coming out from the defendant’s house.
5. On 30^th May 2019 complainant told her aunty Reima Asa about what the defendant had done to the complainant and it was on 5^th June that they reported to Ringi Police Station.
6. The medical examination at Gizo Hospital revealed that the complainant vaginal vault is stretchable which suggested that she had sexual intercourse twice on previous occasions before the incidents giving raise to these charges.
7. The maximum penalty for any person found guilty of the offence of sexual intercourse with a child under 13 years of age is liable to life imprisonment. I wish stress here that in the many occasions the courts had stated that the purpose of the law is to protect the children from being abused by males.
8. There are many cases of this nature in this jurisdiction as the cases Regina v Pana^[1], R v Manele^[2], R v Faenle^[3] and many others which the courts had dealt with nearly all with sentences of imprisonments up to 10 years or so.

9. Aggravating features

The aggravating factors are the age differences with the accused 34 years and complainant is 12 years and the position of trust. The case of Mulele v Director of Public Prosecution, Poini v Director of Public Prosecution^[4] is noted on the four requirements or what to be taken into account in the sentences for this type of offence.

10. Credit for plea of guilty at the first instance by the accused on the 2 counts of sexual offences. It saves the court’s time and expenses of the Government to conduct the trail of the case and in particular at this time of Covid 19 time.
11. And I take into account in the sentence antecedent of the accused that he was 34 years, married with four children and no previous conviction.
12. For the charges of sexual intercourse with a person under 13 years I sentence the accused to imprisonment as follows:
    1. Ct 1 4 years imprisonment

Ct 2 4 years imprisonment

2. Sentences to be served concurrently,
3. Time spent in remand for the charges to be deducted from the sentences,
4. No further orders

THE COURT
Justice Leonard R Maina
Puisne Judge

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^[1] [2013] SBHC 88
^[2] [2020] SBHC 37
^[3] [2019] SBHC 76
^[4] [1985-1986] SILR 145