R v Okiti [2021] SBHC 116; HCSI-CRC 659 of 2019 (2 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Okiti
Citation:
Date of decision:	2 October 2021
Parties:	Feleciano Okiti
Date of hearing:	1 October 2021
Court file number(s):	659 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of two counts of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is sentenced to 2 years imprisonment on count 1. 3. The defendant is sentenced to 2 years imprisonment on count 2. 4. The sentences in orders 2 and 3 above are to be served concurrently. 5. The 2 years imprisonment imposed on counts 1 and 2 are wholly suspended for 2 years on good behaviour. 6. The defendant is to be released at the rising of the court.
Representation:	Mr. Andrew Meioko for the Prosecution Mr. Hayniel Max for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offenses) Act 2016 [cap 26] S 139 (1) (b), S. 139 (1)Penal Code S 22 (2)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Faenle [2019] SBHC 76, R v Joe [2020] SBHC 81

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No, 659 of 2019

REGINA

V

FELECIANO OKITI

Gizo Circuit

Date of Hearing: 1 October 2021
Date of Decision: 2 October 2021

Mr. Andrew Meioko for the Crown
Mr. Hayniel Max for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr. Feliciano Okiti is charged with 2 counts of having intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He had pleaded guilty to both charges and he was convicted accordingly.
2. For your information, the offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. The court however is empowered under section 22 (2) of the Penal Code (cap 26) to impose a shorter sentence than the maximum sentence provided for.
3. The facts of your case as presented to court are as follows:

The victim is Christa Ludvina. She was 14 years old at the time of offending. She was in Form 1 at Tuha Community High School. She lived with her parents at Purumeri Village, Sortland Islands.
You were 23 years old then and you had a boy-girl friend relationship with the victim in the month of April 2019.
On an unknown date between 30^th April 2019 to 1^st October 2019, you went to the victim’s house at night time. You went into the victim’s room and you had sexual intercourse with each other.
On the 19^th September 2019, the victim’s mother was angry with the victim and chased her from their house. The victim came to your house and spent the night with you. You had sex with each other that night. The next day, the victim’s mother came to your house and took the victim back to their house. The matter was reported to the police and you were arrested and charged.

4. The starting point in the sentencing of offenders in respect to an offence of a sexual nature is the Court of Appeal decision in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 In that case, the Court of Appeal had outlined four features that must be taken into account in sentencing. They included age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself.
5. In your case, it was submitted by Mr. Meioko of counsel for the crown that there is a presence of age disparity in this case. At the time of offending, the victim was 14 years old and you were 23 years old. The age disparity was one of 9 years.
6. It was submitted that another aggravating feature in your case is that both offences were committed at night time. From the agreed facts, it is noted that during the first incident, you went to the victim’s house at night time and had sexual intercourse with her. For the second incident, it was the victim that came to you at night time and requested to sleep with you.
7. On your behalf, Mr. Hayniel Max of counsel had submitted that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your early guilty plea not only shows remorse on your part but that you are willing to face the consequences of your action. Your guilty plea also saves the courts time and resources into conducting a trial into the case. It also saves the victim further stress and trauma in having to come to court to give evidence in a contested case.
8. I have noted your personal circumstances. You are now 25 years old and a class 6 drop out. That did not deter you but you have continued to pursue a career in the Carpentry trade. You have achieved a Certificate if Carpentry and you are a builder by profession. You have also operated a trade store that supplies food and other necessities to the villagers in your villagers and other neighbouring villages. Your shop is currently the outlet for supply of rice in your part of the Shortland Islands. In summary you are of assistance to the village and surrounding communities.
9. It is also submitted that you are a youthful offender. Your youthfulness could have contributed to this offending. You have a long life ahead of you and I urge you to learn from this mistake and not to reoffend again. According to your personal circumstances, you have a bright future ahead of you.
10. It is further submitted that the offending had occurred in 2019. You were committed to this court on the 23^rd October 2019. The information against you was filed by the office of the DPP on the 20^th August 2020 more than 10 months after committal. That is a delay that must go in your favour. I have also noted that you have co-operated with the police during investigation. You have not reoffended whilst waiting for your case to be finalised.
11. It is further noted that you were in a boy-girlfriend relationship which is a mutual relationship. You must by now realised that having a sexual relationship with a girl under 15 years and under 18 years is prohibited by law. It is also noted that the victim is a willing participant of the sexual relationship. In fact she came to your house on the second occasion. That attitude goes to the conduct and character of the victim.
12. The case on point is the case of R v Faenle [2019] SBHC 76, HCSI-CRC 361 of 2018. The defendant and the complainant were in a boy-girl friend relationship. The defendant was charged with two counts of the offence under section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He was sentenced to 2 years imprisonment wholly suspended for two years. The complainant was a willing participant in that case.
13. In the case of R v Joe [2020] SBHC 81, the defendant was charged with one count of the offence under section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant was sentenced to 2 years imprisonment suspended for 2 years. The complainant was a willing participant.
14. In your case, the victim had actively taken part in your sexual relationship with her. Her attitude, conduct and behaviour is not becoming of a girl of her age. Taking into account the peculiar circumstances of your case, I put your starting point at 3 1/2 years imprisonment each on counts 1 and 2. For the aggravating features, I increase that sentence by 6 months. For the mitigating features including the character of the victim, your early guilty plea, your youthfulness and the delay in the prosecution of your case, I reduce the sentence by 2 years. That term of imprisonment is suspended for 2 years on good behaviour. The sentences on count 1 and 2 are to be served concurrently.

Orders of the court

1. The defendant is convicted of two counts of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is sentenced to 2 years imprisonment on count 1.
3. The defendant is sentenced to 2 years imprisonment on count 2.
4. The sentences in orders 2 and 3 above are to be served concurrently.
5. The 2 years imprisonment imposed on counts 1 and 2 are wholly suspended for 2 years on good behaviour.
6. The defendant is to be released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge