R v Sirai [2021] SBHC 128; HCSI-CRC 121 of 2020 (5 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sirai
Citation:
Date of decision:	5 November 2021
Parties:	Regina v Philip Sirai
Date of hearing:	28 October 2021
Court file number(s):	121 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Philip Sirai is convicted of one count 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 hereby sentenced to 3 years imprisonment. 3. I direct that the time spent in pre-trial custody be deducted from the total sentence. 4. Right of appeal
Representation:	Ms. Letiara Pellie for the Crown Mr Allan Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offenses) Act 2016, S 139 (1) (a) [cap 26], Penal Code [cap 26] S 24 (2)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Ligiau & Dori [1985-198]) SILR 214, R v-Phoboro [2013] SBHC 8, R v Fiuga [2019] SBHC 75, R v Topo [2018] SBHC 99,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 121 of 2020

REGINA

V

PHILIP SIRAI

Date of Hearing: 28 October 2021
Date of Decision: 5 November 2021

Ms Letiara Pellie for the Crown
Mr. Allan Tinoni for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 8^th May 2020, the defendant Mr. Philip Sirai was indicted with one count 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. The defendant had pleaded guilty to the offence and he was convicted accordingly.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. The court has noted that this type of offending is very prevalent in our country and the courts are very concerned about that prevalence. In any event, the sentence that the court would impose in each case would depend on the peculiar circumstances of each offending. The maximum sentence would necessarily be reserved for the most serious of cases. Section 24 (2) of the Penal Code (cap 26). Empowers the court to impose a shorter sentence than the maximum sentence.
3. The facts as were agreed to by both the prosecution and the defence are the following:

The complainant in your case is Christa I’ira. She was 12 years old at the material time having being born on the 16^th February 2006. You were then 67 years old. You are related to the complainant as her uncle.
On the morning of the 26^th July 2018, the complainant cooked rice at her aunt’s house at Simeruka Village, Marau Sound. When the rice was cooked the complainant brought a plate of rice to feed you. She called out for you but you did not answer and so she walked into your house with the plate of rice because the door was open. You held the complainant and forcefully laid her on a cushion chair and covered her mouth with your left hand. You then laid on top of the complainant and pushed your finger into her vagina. She felt pain and cried.
At that time, the complainant’s cousin brother came to your house and looked for the complainant. You stood up from the complainant and ran towards the door. The complainant saw that opportunity, stood up and jumped out from the window and escaped. The matter was reported to the police on the same day.
On the 6^th April 2019, a reconciliation ceremony was held in the village and attended by the chief and elders. The defendant’s family gave 2 strings of shell money and a sum of $350.00 to the complainant’s family. Food was shared during that occasion and the matter was resolved in custom.

4. In sentencing you I am guided by the principles laid down in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 in which the court had formulated some sentencing principles for the courts future guidance. It was stated in that case that save that each case will depend on its own facts and circumstances, factors that should be considered by the courts included age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself.
5. It is submitted by Ms. Pellie for the prosecution, that there is a presence of age disparity and abuse of position of trust in your case. At the time of offending the complainant was 12 years old and you were 67 years old. The age difference between you and the complainant was 55 years. There is a very huge age disparity in your case. You were at a ripe old age of 67 years and you have allowed yourself to stoop very low and committed the offending. The court views this as a serious aggravating feature against you.
6. I am informed that you are the complainant’s uncle. In our Solomon Islands culture, you are regarded as the complainant’s father and that has placed you in a position of trust. You have breached the trust placed upon you. At your age, you are not the type of person that could be trusted with young females. That is another aggravating feature in your case.
7. It is also submitted by the prosecution that the fact that the offence was committed in your home is another aggravating feature against you. From the agreed facts, it is clear that the complainant came into your house to feed you. You have turned around and sexually molested her right inside your home. Being your niece, your home is supposed to have been a safe and secure place for the complainant to be in. You have turned your home into a crime scene. It is a disgrace that you have molested your very own niece right inside your home.
8. It is also submitted that the very young age of the complainant is another aggravating feature. The complainant was below the consenting age and you, her very own uncle have robbed her of her innocence.
9. On your behalf, it was submitted by Mr. Tinoni of counsel that you have pleaded guilty to the offending. Even though, your guilty plea had come later in the proceeding, I will give you credit for that guilty plea. Your guilty plea not only shows remorse on your part but that you have come to terms with your offending and you are willing to face the consequences of your action. You have saved the courts time and resources in having to conduct a trial into the matter. You have also saved the complainant further stress and trauma in having to come to court to give evidence in a contested trial.
10. I have noted that you are now 71 years old. You do have some health issues but are controlled by medication. You have no previous conviction and you are a person of previous good character. You and your family have paid compensation to the complainant’s family and the relationship between the two families had been restored. You have co-operated with the police during investigation. I have also noted and will take into account that you have been in pre-trial trial custody since the 2^nd February 2020. You have therefore been in custody for a period of 1 year, 9 months and 4 days.
11. To assist the court in imposing an appropriate sentence on you, I am also guided by the principles used in previous cases of a similar nature. In the case of R v Ligiau & Dori [1985-198]) SILR 214 and supported by Pallaras J in the case of R v-Phoboro [2013] SBHC 8, it was stated that matters personal to the accused person must have less effect on sentence than other serious crimes.
12. In the case of R v Fiuga [2019] SBHC 75, HCSI- CRC 91 of 2019, the defendant pleaded guilty to an offence under s.139 (1) (a) and he was sentenced to 7 years imprisonment. The defendant was 22 years old. Age disparity was one of 15 years.
13. In the case of R v Topo [2018] SBHC 99, HCSI-CRC 113 of 2018, the defendant pleaded guilty to an under s. 139 (1) (a). The complainant was 11 years old and the defendant was 22 years old. The defendant was sentenced to 6 years imprisonment.
14. Having regard to the above cases, I put your starting point at 4 years imprisonment. For the aggravating features in your case, I increase that sentence by 1 year. For the mitigating features in your case and especially your guilty plea in this case, your health condition and the compensation that you have paid, I will reduce that sentence by 2 years. Your final sentence is one of 3 years imprisonment. Time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the court

1. The defendant Mr. Philip Sirai is convicted of one count 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 hereby sentenced to 3 years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the total sentence.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge