R v Boselalu [2020] SBHC 82; HCSI-CRC 346 of 2019 (31 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Boselalu
Citation:
Date of decision:	31 August 2020
Parties:	Regina v Phochus Boselalu
Date of hearing:	30 August 2020
Court file number(s):	346 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	Total sentence is an imprisonment of 10 years and 3 months; Time spent in pre-trial custody to be deducted from the total sentence.
Representation:	Mr. Andrew Kelesi for the Prosecution Mr. Chris Rarumae for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) Sexual Offences) Act 2016, S. 139 (1) (b), penal Code , S. 244 [cap 26]
Cases cited:	Mulele v Director of Public Prosecution, Poini v Director of Public Prosecution [1985-1986] SILR 145

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 346 of 2019

REGINA

V

PHOCHUS BOSELALU

Date of Hearing: 30 August 2020
Date of Sentence: 31 August

Mr. Andrew Kelesi for the Prosecution
Mr. Chris Rarumae for the Accused

SENTENCE

Bird PJ:

1. Mr. Phochus Boselalu, the defendant in this case had been found guilty by this court on 3 counts of sexual intercourse with a child under 15 years contrary to section 139 (1)(b) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of common assault contrary to section 244 of the Penal Code (cap 26).
2. The offence for which you are charged is very serious and carries a maximum penalty of 15 years imprisonment. This penalty shows that this type of offending is not condoned by the courts. The courts view this type of offending very seriously because offenders like yourself have intruded into the privacy of a child and have corrupted their minds at a very young age.
3. The brief facts of your case are as follows:

In 2017, the complainant was about 13 years old. She had been living with your family since she was little. She is the daughter of your sister and you brought her up as your own daughter. Sometime in December 2017, whilst your wife Joana and the younger children left for Honiara, you were at Pangobiru with your son Darren and the complainant. At that date, you arrived home drunk from Taro and was using a speaker for music. That speaker belonged to Poloso and you instructed the complainant to return that speaker. You further instructed the complainant to wait for you at your office because you will follow on later.
The complainant did as instructed, and waited for you at the ladder of your office. You arrived and told her to go into your office. She waited in the office. You then went into the office and closed the door. You grabbed the complainant and caused her to fall down. You undressed her and you had sexual intercourse with her.
The second incident was at night time in September 2018. Your wife Joana was admitted at Ogho clinic. You went into her room and turn her up. She woke up and you told her to remain quiet. You undressed her and you had sex with her.
The third incident occurred on the 21^st September 2018 in your house at Pangobiru. Whilst in your room, you instructed the complainant to get oil and massaged you. While she was massaging you, you grabbed her and she fell onto the bed. You then pushed your figure into her vagina. She struggled with you, freed herself and ran out from the room. She went and sat on the ladder. You followed her outside and kicked her back. You then called her back to the house and whipped her with a cable. The complainant ran away into the bush and hid. She then went and stayed with her cousin. Her biological mother went to Pangobiru on the 23^rd September 2017 and took the complainant to Ogho Village and that is where the complainant is currently staying.

4. I have received and have perused submissions from Mr. Kelesi of Counsel for the prosecution. He told me that there are a number of aggravating features in your offending. He had referred to cases like Mulele v Director of Public Prosecutions and Poini v Director of Public Prosecutions [1985-1986] SILR 145, to guide the court in sentencing of similar offences. In those cases, the court stated that there are 4 factors that must be considered when sentencing offenders like you. They include the age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, there is a very huge age disparity. The complainant was only 13 years old and you were 36 years old. Your age disparity was 23 years. That is an extremely huge gap of age between you. At that age, you should have been a very mature man, capable of providing care, love and security for your daughters, including the complainant. You instead acted as a young silly teenager and took advantage of the complainant’s vulnerability to satisfy your own sexual desires.
6. I am also told that there is a breach of trust in your offending. The complainant is your niece. You brought her up as part of your family. In fact, she is like a daughter to you. You were a person that she could trust. A person that would provide love, care and security for her. You have breached that trust placed upon you.
7. Not only that, but the communities also have much trust on you. At the material time, you were a teacher at Pangobiru Community High School. In that position, you are placed with a high responsibility to teach, care for, discipline and have regard and respect for all students including the complainant. You have breached the trust placed upon you. Your home should have been a place where your children including the complainant were to find peace, love, safety and security. You have turned your office and your home into a crime scene.
8. In relation to the character of the complainant, it is noted that she was just 13 years old at the time of the first incident. There is no evidence that the complainant had other boy friends at that time. In fact she was just a child in December 2017 when you sexually molested her. At that age, the complainant could not have fully comprehended your sexual lust on her.
9. The court has also noted that you sexually molested the complainant over a period of time. There were three separate incidents of sexual assault on the complainant. The fact that you carried out the offending over a period of time is taken as an aggravating factor against you. Your continuous sexual molestation on the complainant had eventually caused her to run away from home and hid in the bush. You had no regard for her welfare and safety.
10. Another aggravating feature in your case is that your offending had caused emotional and psychological pressure on the complainant. You are the complainant’s maternal uncle. Your offending is not only against the law but also bring shame on the family, community and the tribe as a whole. The stigma attached to it is enormous in a village circle.
11. I have also received submissions from your lawyer Mr. Rarumae. On your behalf, it was submitted that you are a first offender and should be treated with leniency. This is the first time that you have been charged with a criminal offence. The court has taken note of that fact
12. You are the only breadwinner for your family of five children and other adopted children. On that note, I must remind you that these family responsibilities have always been there. You should have thought of your children and your wife before you chose to commit the offences. I do not think that this will weigh much in your favour. A child that you should have provided for and cared for was sexually molested by you. I do not think for one second that you could be trusted with your young daughters. If you could do this to the complainant who is just like your daughter, are your own daughters safe when you are around them. In effect, the court is very concerned about your sexual behaviour towards children.
13. I have noted that you have spent about two months in pre-trial custody and I am inclined to take that time into account in this sentence.
14. Taking into account all of the above discussion, the court views your offending as very serious. You are a person that could not be trusted around young children you have sexual lust for your very young niece.
15. Being guided by the case authorities referred to by both Counsel for the prosecution and the defence, the starting point in your case is one of eight years imprisonment. From the aggravating features discussed above, I will add an additional period of two years.
16. For the offence of common assault, I sentence you to three months imprisonment. The offences of having sexual intercourse with a child under 15 years are distinct and separate from each other. Notwithstanding, I will order that the sentences are served concurrently with each other.

Orders of the Court

1. Count 1: 10 years imprisonment;
2. Count 2: 10 years imprisonment;
3. Count 4: 10 years imprisonment;
4. Count 5: 3 months imprisonment;
5. Sentences on count 1, 2 and 4 are to be served concurrently;
6. Sentence on count 5 to be served consecutively to counts 1, 2 and 4;
7. Total sentence is an imprisonment of 10 years and 3 months;
8. Time spent in pre-trial custody to be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge