R v Hiti [2021] SBHC 115; HCSI-CRC 396 of 2020 (2 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hiti
Citation:
Date of decision:	2 October 2021
Parties:	Regina v Jonah Hiti
Date of hearing:	30 September 2021
Court file number(s):	396 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is hereby convicted of three counts of having sexual intercourse with a child under 15 contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 2. The defendant is hereby sentenced to 2 years imprisonment on count 1 3. The defendant is hereby sentenced to 2 years imprisonment on count 2 4. The defendant is hereby sentenced to 2 years imprisonment on count 3 5. I direct that I year of the sentences in orders 2, 3 and 4 are to be served concurrently. 6. I further direct that one year of the sentences in orders 2, 3 and 4 is suspended on good behaviour bond. 7. The defendant will serve a period of one year in prison. 8. Time spent in pre-trial custody to be deducted from the total sentence.
Representation:	Mr. Andrew Meioko for the Prosecution Mr. Andrew Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offenses) Act 2016 [cap 26] S 139 (1) (a), Penal Code [cap 26] S 24 (2), Constitution S 10 (2)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, Regina v Phoboro [2013] SBHC 8, R v Topo [2018] SBHC 99, R v Konairamo [2019] SBHC 77, R v Mananiba [2021] SBHC 122, R v Noforangakeri [2021] SBHC 76, R v Faenle [2019] SBHC 76,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 396 of 2020

REGINA

V

JONAH HITI

Gizo Circuit

Date of Hearing: 30 September 2021
Date of Decision: 2 October 2021

Mr. Andrew Meioko for the Prosecution
Mr. Andrew Bosa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr. Jonah Hiti is charged with 3 counts of having intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He had pleaded guilty to all charges and he was convicted accordingly.
2. I would like to inform you that the offences for which you are charged are very serious and carries a maximum sentence of life imprisonment. You must realise that these laws are codified to protect young females who are under the age of 18 years. Consent is not a defence in such cases. Apart from the maximum sentence that the court could impose, the courts also have a discretion under section 24 (2) of the Penal Code (cap 26) to impose a shorter term of imprisonment.
3. The facts in your case as was agreed to by both the prosecution and the defence are the following:

The victim Emily Ansiva was 11 years 2018 and 12 years old in 2019. You are from Nazareth Village, Marovo Lagoon. You are married to the complainant’s elder sister and you were 38 years old at the material time.
On the unknown date between 1^st January 2018 to 31^st December 2018, the complainant was taken by her elder sister to Pokete Camp, Choiseul Province to stay with her and yourself. In the evening of this unknown date, the complainant after having her bath went into the room naked in your presence whilst changing her clothes. At about 11pm when you went to sleep, the complainant was already lying on your bed only wearing a bra and pant. You told her to go outside and sleep with your three children. The complainant told you to lay down on the other half of the bed and she touched your hand. You then removed your clothes and she removed hers. You had sexual intercourse with the complainant. At that time your wife had travelled to Pangoe Village to attend your son’s graduation ceremony.
On another unknown date between 1^st July 2019 to 31^st July 2019 at Tiroliloso Village, Marovo Lagoon. On that unknown date, at night time, you went to look for fruit leaf. You called the complainant to bring you the fruit leaf. She brought the fruit leaf to you under the house and told you to meet her. She further told you that if you refuse to go, she will report what you did to her to your wife. You went and met her and you had sexual intercourse with each other.
On another unknown date, between 1^st July 2019 to 31^st July 2019, at Tiroliloso Village, the complainant was at your house. Your wife and her brother had gone to Seghe. The complainant was to look after your children. You had your bath and went inside your house to change to go to Seghe. The complainant was already lying on your bed then and asked you if you could have sex with her. You told the complainant to bend down with her back towards you and you had sexual intercourse with her. The matter was reported to the police and you were arrested and charged.

4. In order for the court to impose the appropriate sentence in each case, they must take into consideration the peculiar circumstances of each case. Aggravating features and mitigating features must be taken into account. To assist the court in the sentencing of like offenders, the Court of Appeal in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 set out four features in sentencing. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, it is submitted by the prosecution that there is presence of age disparity. You were 38 and 39 years old at the time of offending and the complainant was 11 and 12 years old. There is an age difference of 27 years. That age gap is very substantial. You were an adult. A very mature person and you have allowed your own sexual emotions to overtake you.
6. There is also a presence of abuse of position of trust in your case. The complainant is your wife’s younger sister. Your wife had taken her in to stay with your family. At her age, you should have treated her as one of your own children. You are placed in a position of trust over the complainant and you have abused that trust.
7. I am also urged to note that the complainant’s tender age is an aggravating feature in your case. I have perused and taken note of the agreed facts and it is obvious that the complainant was the initiator of the sexual encounter with you. In this particular circumstance, I do not think that the complainant’s tender age is a serious aggravating feature. She did not behave like a child of tender age.
8. I am further urged that the repetition of the offence is another aggravating feature against you. I have noted on the agreed facts that you have sexual intercourse with the complainant on three different occasions. The repetition of an offence could have been a serious aggravating feature. That aggravating feature is mitigated by the actions of the complainant towards you. In all three occasions, the complainant had seduced you into committing the various offences.
9. I am also urged to take note of the fact that the first and second incidents occurred at night time and that should have been another aggravating feature in your case. I would also say that after perusing the agreed facts, it is the complainant that had seduced and blackmailed you into committing the offences.
10. The prosecution had further submitted that the fact that the offences were committed in the family home is an aggravating feature. This is a peculiar case which should be distinguished from other cases. I agree that one’s home is a safe haven for children. It is supposed to be a place where children can feel the tranquillity therein. In this case, it is obvious that the complainant had in fact acted contrary to that notion when she seduced and blackmailed you into the act of sexual intercourse, that type of behaviour is unbecoming of a girl of her age.
11. On your behalf, your lawyer has submitted that this case is somewhat a rare type of a case due to the factual circumstances. I have noted that you have pleaded guilty to the offending which shows you are remorseful. I give you credit for your early guilty plea. I can also say that your guilty plea not only shows remorse but that you have owned up to your offending and you are willing to face the consequences of your action. You have also save the courts time and resources in conducting a trial into your case. You have also save the complainant the agony and stress in having to come to court and recite the experiences of the past.
12. You are a first offender with no previous conviction. However, having said that, I am also mindful of the comments of Pallaras J in the case of Regina v Phoboro [2013] SBHC 8 that matters personal to the accused are likely to have less impact on the sentence than with other serious offences.
13. I have noted that you are now 39 years old. You are married with four children. You are currently working as a carpenter and plumber with BP Lodge Company and you support your family with your earnings.
14. I have heard that you have co-operated with the police during investigation. You admitted the offending to the police which had led to your guilty plea in court. You have also complied with bail conditions imposed upon you by the court.
15. I have noted that the charges against you occurred in 2018 and 2019 respectively. You were committed to this court on the 5^th February 2020. The information against you was filed by the office of the DPP on the 12^th February 2021, more than one year after committal. That is unreasonable delay and is a breach of your rights under section 10 (2) of the Constitution.
16. I have also noted that you have paid compensation to the complainant’s parents. You paid $100.00 and the reconciliation was witnessed by community leaders. The payment of compensation shows your remorsefulness. You have been remanded in custody for three months and four days. That time spent in custody will be taken into account in this sentence.
17. I have been referred to in a number of similar cases that were previously dealt with by this court and have noted them I refer to the case of R v Topo [2018] SBHC 99 in which the defendant had pleaded guilty to one count of the offence under section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. There was a breach of trust and the offence was committed at night. The defendant was sentenced to 6 years imprisonment.
18. In the case of R v Konairamo [2019] SBHC 77, the defendant also pleaded guilty to two counts of the offence under section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. There was age disparity of 32 years and breach of trust. The defendant was sentenced to 5 years imprisonment on each count and were to be served concurrently.
19. In another case of R v Mananiba [2021] SBHC 122, the defendant was charged with three counts of the offence under section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 He pleaded guilty to the offending. There was presence of age disparity and abuse of position of trust. The defendant was sentenced to 4 years imprisonment on each of the counts and were to be served concurrently.
20. In the case of R v Noforangakeri [2021] SBHC 76, HCSI-CRC 359 of 2020, the defendant pleaded guilty to one count of the offence under section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. There was presence of age disparity and abuse of position of trust. The defendant was a youthful offender and he was sentenced to 3 years imprisonment. Two years was suspended on good behaviour bond and he was released at the rising of the court having served the balance of that term in pre-trial custody.
21. There is no case that is identical. All the cases that come before the courts have their own facts and surrounding circumstances. Your case is one of its own kind. It is a rare case in which a 11 year old girl had seduced and blackmailed you into committing the offences under section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. I have heard from the agreed facts that you tried to exercise restraint but eventually fell into the trap because of the inducements and blackmail. I have no other information about the mental and medical status of the complainant before me to explain why she had behaved in the most unusual manner towards you. The complainant’s conduct towards you was very explicit, and unbecoming of a girl of that age. Her character is one that the court would despise. The complainant was a willing participant and in this case she was the initiator.
22. In the case of R v Faenle [2019] SBHC 76, HCSI-CRC 361 of 2018, Maina J had stated “some men are like crocodiles or sharks and if a person or you close to them, they will bite you”. This is similar to what had transpired in this present case. The complainant’s conduct and character had a huge contribution to the commission of the offences.
23. Taking into account all of the above discussion, I hereby put your starting point at 4 years imprisonment. For the aggravating features, I increase that sentence by one year. For the mitigating features in your case and especially for the conduct and character of the complainant, I reduce that sentence by two years. For the delay in the prosecution of this matter, I further reduce the term by one year. You are hereby sentenced to 2 years imprisonment each on counts 1, 2 and 3. The sentences are to be served concurrently. I further direct that 1 year of the respective sentences is suspended on good behaviour bond. The defendant will serve I year in prison. Time spent in pre-trial custody to be deducted from total sentence.

Orders of the court.

1. The defendant is hereby convicted of three counts of having sexual intercourse with a child under 15 contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016
2. The defendant is hereby sentenced to 2 years imprisonment on count 1
3. The defendant is hereby sentenced to 2 years imprisonment on count 2
4. The defendant is hereby sentenced to 2 years imprisonment on count 3
5. I direct that I year of the sentences in orders 2, 3 and 4 are to be served concurrently.
6. I further direct that one year of the sentences in orders 2, 3 and 4 is suspended on good behaviour bond.
7. The defendant will serve a period of one year in prison.
8. Time spent in pre-trial custody to be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge