R v Kohai [2021] SBHC 100; HCSI-CRC 13 of 2021 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kohai
Citation:
Date of decision:	10 September 2021
Parties:	Regina v Andrew Kohai
Date of hearing:
Court file number(s):	13 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1 Count 1 - indecent act is sentence one (1) year imprisonment , 2 Count 2 - incest is sentence 5 years imprisonment, 3 Count 1 to be served concurrent to Count 2 4 Time spent on remand to be deducted from this sentence, 5 No further order
Representation:	Kelesi A E for Crown Brook R for Defense
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 138 (1) (a) (b) and (d) (Amendment), S 163 (2) (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 13 of 2021

REGINA

V

ANDREW KOHAI

Circuit: Kira Kira, Makira Province

Date of Sentence: 10 September 2021

Counsel
Kelesi A E for Crown
Brook R Defense

Sentence

Defendant Andrew Kohai had pleaded guilty on one (1) count of indecent act without consent contrary to section 138 (1) (a) (b) & (d) of the Penal Code as amended by Penal Code (Amendment) (Sexual Offence) Act 2016 and one (1) count of incest contrary to sections 163 (2) (b) of the Penal Code, Upon your own plea you were accordingly convicted the two charges.

1. Summary of Agreed Facts

The Parties agreed on the following facts:

The defendant in this matter is Andrew Kohai, 35 years of age at the time of the offending and from Manihuki village, Central Bauro, Makira Province.

The complainant is Ileen Jane Pengoa, 22 years of age from the same village as of the defendant and related to the defendant and her biological brother.

On 2 December 2019, sometime between 4am to 5am in the morning at Manihuki village, Central Bauro, the Complainant was sleeping inside her home when she felt someone touching her vagina.

She woke up and shouted and her mother told her to turn on the light. As soon as she turned on the light, she saw the defendant crawling out of the door and identified him as the person who touched her vagina. Her mother shouted at him and told him that what he did was not right and they were biological siblings.

Again, on another occasion on 9 December 2019, at the same location as above, the complainant was at her home with her son inside the room sleeping. Whilst she was inside with her son, the defendant was drunk, entered the room and removed her sister’s skirt.

The complainant refused but the defendant went further and continued to remove her trouser after. After he remove her skirt and trouser, he then proceed to widen her legs with his two hands. The defendant then used his two fingers, insert inside her vagina and then took his penis and pushed it inside her vagina and had sexual intercourse with her until he ejaculated. The defendant then left.

The defendant was reported to the Police and was arrested and remanded till this date. The defendant has been in custody for about 1 year 9 months to this date.

2. The Penalty

Section 163 (2) (b) of Penal Code (Amendment) (Sexual Offences) Act 2016 states:

“A person commits an offence if the person has sexual intercourse with another person who is a close family member of the person.
Maximum penalty:
................
(b) in any other case – 10 years imprisonment”.

And section 138 (1) (a) (d) of the Penal Code as amended by Penal Code (Amendment) (Sexual Offence) Act 2016

“(1) A person commits an offence if the person commits an indecent act on or in the presence of another person:
(a) without the other person's consent; and
(b) knowing about or being reckless as to the lack of consent
Maximum penalty:
.................
...............
(d) in any other case – 5 years imprisonment”.

3. Aggravating features

The aggravating features as stated in the sentence submission of the counsel are obvious:

(i) The complainant and Defendant are siblings,
(ii) Abuse of trust as both should look after each other in the time of problems,
(iii) The physical and psychological emotional impacts on the complainant,
(iv) It happen at home, a place that should be respected by the family but was abused by the defendant,
(v) The offence was premediated and repeated by the defendant,

4. Mitigation

Upon the submission of your counsel, I give you credit for guilty plea on the charge at the first instance or the first available opportunity and serves court’s time.

5. The Sentence

In this country, the sexual offences’ prevalence or common in our communities is a concern now.

People must know that these practice of sexual acts or behaviours is against our religious believe and custom practices. In custom if it was at the olden days it may result to death or big compensation. Thanks, we have the law now to deal with these unaccepted acts or behaviours.

I noted the law case in this jurisdiction referred in by the counsels in their submissions and for this case the starting point in the sentence is 5 years.

Taking into account the facts, aggravating features and mitigating factors the appropriate sentence for the accused is 4 years imprisonment.

Order of the Court

The accused Andrew Kohai is sentence as follows:

1. Count 1 - indecent act is sentence one (1) year imprisonment ,
2. Count 2 - incest is sentence 5 years imprisonment,
3. Count 1 to be served concurrent to Count 2
4. Time spent on remand to be deducted from this sentence,
5. No further order

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge