R v Zalatotu [2021] SBHC 152; HCSI-CRC 5 of 2021 (19 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Zalatotu
Citation:
Date of decision:	19 November 2021
Parties:	Regina v James Sima Zalatotu
Date of hearing:	18 November 2021
Court file number(s):	5 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. James Sima Zalatotu is hereby sentenced to 11 ½ years imprisonment. 2. I direct that the time spent in pre-trial custody is to be deducted from the total sentence. 3. Right of appeal
Representation:	Mr Andrew Meioko for the Crown Mr Benham Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 s 139 (1) (a) [cap 26], Penal Code s 24 (2) [cap 26]
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 214, Pana v Regina [2013] SBCA 19, R v Ligiau and Dori [1985-1986] SILR 214, Regina v Liva [2017] SBCA 20, R v Bonuga [2014] SBCA 22, Regina v Milamae [2020] SBHC 105,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 5 of 2021

REGINA

V

JAMES SIMA ZALATOTU

Date of 18 November 2021
Date of Decision: 19 November 2021

Mr Andrew Meioko for the Crown
Mr Benham Ifuto’o for the Defendant

SENTENCE

Bird PJ:

1. On the 15^th November 2021, the defendant Mr. James Sima Zalatotu was found guilty and convicted subsequent to a trial by this court on one count of 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. Sentencing submissions were made in court on the 18^th November 2021 and the matter is now before me for sentence.
2. I must tell you that the offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. The courts however are empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence depending on the special circumstances of each offending. The maximum sentence would necessarily be reserved for the most serious of cases.
3. In your case, it was submitted by Mr. Meioko of counsel for the crown that quite apart from other aggravating features that would be present in each case, the Court had in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 214, set out four factors that the Courts must consider and take into account in the sentencing of sexual offenders. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself.
4. In your case, it was submitted by Mr. Meioko, that there is presence of age disparity and abuse of position of trust. I have noted that you were 55 years old at the time of offending and the complainant was 8 years old. The age disparity between you was one of 50 years. That is a very huge age disparity and I am unable to comprehend why you have allowed yourself to stoop very low and committed the offending. You must remember that little girls are not your play toys. They are human beings and they deserve to be treated with respect and dignity. I also would like to take this opportunity to tell you that even if a little girl consents to the sexual act, it is still an offence punishable under our laws.
5. Another aggravating feature in your case is the abuse of position of trust. You are the complainant’s uncle. In her evidence in court, the complainant referred to you as papa James. She regarded you as a father figure and she looks up to you for her personal care and protection and her total wellbeing and you have abused the trust placed upon you.
6. It is also submitted that the very tender age of the complainant is another serious aggravating feature. The complainant was just shy of her 9^th birthday when you sexually molested her. You robbed her of her innocence at a very young age. In the case of Regina v Pana HCSI-CRC 408 of 2013, Pallaras (as he was then) stated inter alia that to assail a completely helpless infant in such an offensive way is a complete affront to the dignity and humanity of the child. I just cannot comprehend the extent and effect of what you have done to the complainant.
7. From the evidence of the complainant and PW2, it would be evident that you have premeditated the commission of the offending. The complainant came home from school on that day and returned to the house. You called her to come to the store where you were with your grandson Jensen. As she came inside the store, you closed the door and undressed her. Thereafter, you sexually molested her inside the store. It was obvious that you lured the complainant into your store to do what you did for your own sexual gratification.
8. Mr. Meioko further submitted that your unlawful sexual acts on the complainant had caused her physical harm and injury. According to the medical report by Dr Susie Sufelo, the complainant had experienced pain in her private part. There was a lesion on the right side of the complainant’s labia minor measuring 10mm in length and 2mm in depth. The sexual encounter occurred on the 7^th August 2020. The medical examination was carried out on the 30^th August 2020. Even on that date, the doctor had stated that the tissue injuries to the complainant’s vagina would heal after one month or two. The gravity of the injuries on the complainant’s vagina were serious.
9. It is further submitted by the prosecution that another aggravating feature in your case is the emotional and psychological harm to the victim. The court had observed that the complainant was sobbing when giving evidence in chief and cried during cross-examination. The court had to call for a recess to give time to the complainant to settle down. In the case of Regina v Liva [2017] SBCA 20, the Court of Appeal approved and applied what was said in the earlier case of R v Bonuga [2014] SBCA 22, that “there may have been no evidence that the victim suffered severe or lasting psychological harm”. They nonetheless were of the view that” judicial notice needs to be taken of the devastating effect on victims of sexual offending especially young victims. The psychological trauma cannot be ignored”.
10. On your behalf, it was submitted by Mr. Ifuto’o of counsel that you are 59 years old. You are not formally employed and you are married with four children. You have no previous conviction and you are a person of previous good character. I must however remind myself that in sexual related cases, mitigating factors personal to an accused are likely to have less effect on sentencing than in other serious crimes. See the views of the court in the case of R v Ligiau and Dori [1985-1986] SILR 214. I have also heard that you have been remanded in pre-trial custody for 3 months and 15 days.
11. After having discussed the aggravating and mitigating features in your case, I will now take into account the various case authorities cited by both counsel to assist me in determining the appropriate sentence that I will impose against you. In the case of Pana v Regina [2013] SBCA 19, the Court of Appeal had stated in paragraph 17 of their judgment that the sole fact that the child is below the consenting age should in itself bring the starting point to eight years imprisonment.
12. In the case of Regina v Milamae [2020] SBHC 105, the defendant was convicted after a trial for an offence under s.139 (1) of the 2016 amendment to the Penal Code (cap 26). The defendant was sentenced to 9 years imprisonment after taking into account the aggravating and mitigating features in that case. In other cases cited by both counsel for the prosecution and the defence on guilty pleas, the sentencing ranges were imprisonment of 6 years to 9 years.
13. Having noted the peculiar circumstances in your case, and the case authorities cited, I would put your starting point at 8 years imprisonment. For the aggravating features in your offending, I will increase that sentence by 4 years. Having noted the ratio in the case of R v Ligiau and Dori cited above, I will consider reducing the sentence by 6 months only for mitigation. The final sentence that the court will impose on you is one of 11 ½ years imprisonment. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the court

1. The defendant Mr. James Sima Zalatotu is hereby sentenced to 11 ½ years imprisonment.
2. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
3. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge