R v Paikai [2021] SBHC 12; HCSI-CRC 6 of 2020 (8 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Paikai
Citation:
Date of decision:	8 April 2021
Parties:	Regina v Michael Junior Selwyn Paikai
Date of hearing:	1 April 2021
Court file number(s):	6 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Brid J
On appeal from:
Order:	1. The defendant is convicted on two counts of having sexual 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. 2. The defendant is sentenced to 3 years imprisonment on count 1. 3. The defendant is sentenced to 3 years imprisonment on count 2. 4. The sentences to run concurrent to each other. 5. I direct that the time spent in pre-trail custody to be deducted from the total sentence. 6. Right of appeal.
Representation:	Ms. Elma Veenah Rizzu for the Prosecution Mr. Lazarus Waroka for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 Section 139 (1) (a)
Cases cited:	Mulele v Director of Public Prosecution and Poini v Director of Public Prosecution [1986] SBCA 6, Pana v Regina [2013] SICA 19, R v Kaneta [2019] SBHC 52, R v Fiuga [2019] SBHC 75, R v Topo [2018] SBHC 99, R v Konairamo [2019] SBHC 77, R v Pirineso [2019] SBHC 57, R v Konairamo [2019] SBHC 77

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 6 of 2020

REGINA

V

MICHAEL JUNIOR SELWYN PAIKAI

Date of Hearing: 1 April 2021
Date of Decision: 8 April 2021

Ms. Elma Veenah Rizzu for the Prosecution
Mr. Lazarus Waroka for the Accused

SENTENCE

Bird PJ:

1. By information filed on the 31^st January 2020, the defendant Mr Michael Junior Selwyn Paikai was charged with three counts of having sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant had pleaded not guilty to all charges.
2. Upon further negotiation between the prosecution and the defence a nolle prosequi was filed on the 30^th March 2021 in respect of count 1 of the information filed on the 31^st January 2020. The defendant was thereby discharged in respect of count 1 therein.
3. An amended information was also filed on the 30^th March 2021 and the defendant was arraigned on two counts of having sexual intercourse with a child under 15 years contrary to section 139(1)(a) of the Penal Code (Amendment) (Sexual Offence) Act 2016. He entered guilty pleas to both charges. The defendant was thereby convicted accordingly.
4. I must remind you that the offences for which you are charged are extremely serious and carries a maximum sentence of life imprisonment. This would show offenders and would- be offenders that the courts frown upon such behaviour and attitude.
5. The facts of your case are as follows;

You are 25 years old and you are from Laulasi Village, Langalanga Lagoon, Malaita Province. The victim is a 7 years old child and the only child in her family. In 2019, the victim attended Prep Class at White River. You are the uncle in-law of the victim. You are married to the victim’s mother younger sister.

6. On an unknown date between 1^st August to 31^st August 2019, you removed the victim’s clothes and had sexual intercourse with her by inserting your tongue into her vagina and performing cunnillingus on her. The victim was alone at home at Namoruka, White River at the material time.
7. On the 11^th September 2019, the victim and two of her friends were having a bath outside her house at Namoruka, White River. After taking her bath the victim wore a towel and went into the house to get changed. As the victim entered the house, you pulled her towards you and removed the towel. You were seated on a small chair. While the victim was standing, you lifted her leg, inserted your tongue into her vagina and performed cunnillingus on her. You were alone with the victim at the material time. You threatened the victim not to tell anyone what you did on her. As a result, the victim was afraid of you and she rans away when she sees you.
8. On the 12^th September the victim spoke out about what you did to her and she was taken to Self Ples by her mother. That report had led to your arrest.
9. In order for me to decide on the appropriate sentence that I should impose against you, I must take into account the aggravating and mitigating features in this offending. It was submitted by Ms. Rizu of counsel for the crown that there are a number of aggravating features in your case. I am urged to take cognisance of the principles laid down in the case of Mulele v Director of Public Prosecution and Poini v Director of Public Prosecution [1986] SBCA 6 [1985 – 1986] SILR 145. The court of Appeal in that case held that save as each case would depend of their own facts, there are certain guidelines that the court must take note of. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
10. In your case, it was submitted by the crown that there is a huge age disparity between you and the victim. At the material time, you were 23 years old and the victim was just 7 years old. The age difference between you was 16 years. You were an adult and you could have been able to exercise restraint.
11. I am told that there is a breach of trust in your offending. As an uncle in-law, you are placed with trust and responsibility on the victim. You have abused and have breached that trust placed upon you.
12. I am also told that the very young age of the victim is a aggravating feature. Owing to her age, the victim is very vulnerable to sexual abuse from men like you that absolutely had no regard for children.
13. There is also a degree of premeditation in your offending. You made sure the victim was alone when you performed your sexual lust on her.
14. The court had also noted that there is a repetition of the offending on the victim. The offending on count 1 and 2 occurred over a period of time. You have repeated the commission of the offending and had the victim remained quiet, you could have sexually abused her again.
15. The court is also concerned that these offending occurred in the victim’s home. A home is a place where family members should feel safe and secure but you have turned the victim’s home into a crime scene. You have made threats on the victim and she feared you. As an uncle in-law you have shown a very irresponsible attitude.
16. On your behalf, your lawyer Mr Lazarus Waroka have submitted that you are married with two children ages, 4 years and two years respectively. You have no formal employment. You earn a living to support your family by selling betelnut and smoke.
17. I have noted that you have pleaded guilty to the offending upon further negotiation with the prosecution. I will give you some credit for your guilty plea. It saves cost and expenses in conducting a trial into the case. It also save the victim more trauma in having to recite in court what you did to her.
18. You have no previous convictions until this offending. I urge you to learn from your mistake and not to re-offend again in future.
19. I have heard that you are remorseful for your actions. As a sign of remorse, you have paid compensation of $1,000.00 and 1 custom money to the victim’s family.
20. You have co-operated with the police and you have complied with your bail conditions since your release on bail. The court had also noted that you have spent a total of 9 months and 13 days in pre-trail custody.
21. In like offences that you are charged with, the sentences imposed by the court ranges from 10 years to 4 years imprisonment depending on the circumstances of each case.
22. I have been referred to a number of similar cases by counsel. They included the cases of Pana v Regina [2013] SICA 19, SICA-CRAC 13/13, R v Fiuga [2019] SBHC 75, HCSI-CRC 91/19, R v Kaneta [2019] 52, HCSI-CRC 112/18, R v Topo [2018] SBHC 99, HCSI-CRC 113/18, R v Konairamo [2019] SBHC 77, HCSI-CRC 138/19 and R v Pirineso [2019] SBHC 57, HCSI-CRC 338/17 and I have noted the various sentences imposed by the court in each of the cases.
23. Taking into account the aggravating features in your case. I put the starting point in this case at 4 years imprisonment.
24. For the mitigating features in your case and taking into account the various cases cited, I reduce that sentence by 1 year. I sentence you to 3 years imprisonment on count 1 and 3 years imprisonment on count 2. Sentences to run concurrent to each other.

Orders of the Court

1. The defendant is convicted on two counts of having sexual 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.
2. The defendant is sentenced to 3 years imprisonment on count 1.
3. The defendant is sentenced to 3 years imprisonment on count 2.
4. The sentences to run concurrent to each other.
5. I direct that the time spent in pre-trail custody to be deducted from the total sentence.
6. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge