|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
| Case name: | R v Kio |
| | |
| Citation: | |
| | |
| Date of decision: | 15 October 2021 |
| | |
| Parties: | Regina v Frank Kio |
| | |
| Date of hearing: | |
| | |
| Court file number(s): | 535 of 2020 |
| | |
| Jurisdiction: | Criminal |
| | |
| Place of delivery: | |
| | |
| Judge(s): | Maina; PJ |
| | |
| On appeal from: | |
| | |
| Order: | 1. Count 1 - Indecent – two (2) years imprisonment, 2. Count 2 - Incest – five (5) years imprisonment, 3. Count 1 to be served concurrent to Count 2, 4. Any time spent in custody to be deducted from this sentence, 5. No further orders |
| | |
| Representation: | Ratu Oliver for the Crown Fagani Michael for the Defence |
| | |
| Catchwords: | |
| | |
| Words and phrases: | |
| | |
| Legislation cited: | Penal Code s139 (2) (a), Penal Code (Amendment) (Sexual Offences) Act s136 (1) (a) and (2) (a) |
| | |
| Cases cited: | R v Ligiau & Dari [1985 – 1986] SILR 214, Regina v Phoboro [2013] SBHC 8 |
IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION
Criminal Case No. 15 October 2021
REGINA
V
FRANK KIO
Circuit: Lata, Temotu Province
Date of Sentence: 15 October 2021
Ratu Oliver for the Crown
Fagani Michael for the Defence
SENTENCE
You, defendant Frank Kio were charged with three counts of sexual offences. However, the DPP nolle one count of indecent and now you are before the court with two counts of sexual offences.
Defendant had pleaded guilty on two (2) counts of indecent contrary to section 139 (2) (a) of the Penal Code and on one count of incest contrary to sections 163 (1) (a) and (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and accordingly the defendant was convicted upon own guilty plea on the two charges.
1. Agreed Facts
The Parties presented these as agreed facts:
The defendant was 59 years old at the time of the offending and is from Laro village, Reef Islands, Temotu Province.
The complainant is Esther Palei was born on 1st April 2009 and was 10 years old at the time of the offence. She is also from Laro village Reef Islands. The defendant is related to the victim as granddaughter. The complainant was born from the first daughter of the defendant.
The incidents occurred on an unknown date between 1 January 2019 and 31st December 2019. It happened in a bush garden at Laro village Reef Islands.
The first incident occurred in the morning when the granddaughter was sleeping at her grandparent’s house at Laro village. Her grandmother and a little boy had gone out from the house and were at the kitchen to prepare the breakfast.
While the victim was sleeping, the defendant went into the room where the granddaughter was sleeping and he lifted up her skirt with his right hand. The defendant then touched her vagina (referred to as mimi).
The complainant did not tell her grandmother straight away but she told her later on.
The second incident occurred on the same day at the grandparent’s house. Again the victim was sleeping alone when the defendant went to where the she was sleeping.
The defendant lifted her skirt and then licked the victim’s vagina (mini) with his tongue. The victim felt pain and screamed. Her grandmother heard her screaming and asked her what had happened and she told her about what the defendant did to her.
Her grandmother then went to the Police and reported the matter.
2. The Penalty
A person who commit the offence of indecent act contrary to section 139 (2) (a) of the Penal Code is liable to imprisonment for 7 years imprisonment years.
With incest the law in sections 163 (1) (a) and (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016 states:
“163 Incest
(1) In this section:
“close family member”, of a person, means any of the following persons:
(a) a parent or grandparent;
................................
................................
(2) A person commits an offence if the person has sexual intercourse with another person who is a close family member of the person.
Maximum penalty:
if the close family member is under 13 years of age – life imprisonment;
......................”
3. Antecedents
The accused was 69 years old at the time of the offences and has no previous conviction.
4. Mitigation
For to come to court and plead guilty at the first instance I give you Credit and also for no previous conviction and they will be taken into account in this sentence.
5. Aggravating features
These are the aggravating features in this case:
6. The Sentence
The offence of incest or sex with relative is a disgraceful, shameful, not according to the custom and religion practices on part of the person who commit the offence. In the olden days it can result to killing of the person who did these acts. But now the law can punish you for these incest act with imprisonment.
It must be noted that the court gives less consideration on mitigating factors on the sexual intercourse offences[1]. And further among the reasons for incest is that in the typical society as ours it causes shame and disgrace not only to the offenders’ families and relatives but also to the victim’s side.
Again I wish to state that sexual offences are becoming common in our communities and can noted from the cases that came before the court in this circuit. They are almost sexual offence cases.
A lot of people may make joke about this prevalence of the offences. You will realise few days ago from the people who came or were in the court when I put or read the charges for the accuses to take their pleas of sexual offences in the court. While it is funny to you but I wish say that this is a serious or great concern as sexual offences is raising at our communities and we should worry about it before it gets worse.
We called Solomon Islands a Christian country but the raising of the sexual offences or these immoral and bad behaviours seems to suggest that it is not so as Christian people do not behaviour, act or live this immoral type of life.
Further in our custom, sexual intercourse with a close-relative i.e. granddaughter is very shameful thing for you and even your relatives. In olden days as I noted earlier may result to death.
This prevalence of these behaviours or sexual offences in our communities should the great concern of every one of us, the Government, churches, community leader, and chiefs at villages. On the part of the court we are dealing with the people who committed these offences according to the law and punish them.
Further it is interesting to note from the fact of the case that the grandfather was licking the vagina or mimi of his granddaughter. Notably it is wrong in law, church teaching and custom of the people and worse so, vagina or mini is not for licking or eating mimi but the mouth is to eat food when a person is hunger or to drink water when a person is thirsty, the well-understood and known purposes for the mouth. But you have used your tongue on granddaughter’s vagina for your sexual pleasure. Whatever you may think, it is an offence to lick the vagina or mimi of a child and worse so with your closed relative or child.
With this case, you Frank Kio have pleaded guilty on the charges of incest and indecent acts to granddaughter and the starting points in the sentence for indecent act is 4 years and incest is 7 years.
On considering the facts of the case, aggravating features, mitigating factors from the sentencing submissions by the counsels and case laws referred to by the counsels it is my view that with the circumstances of the case against the accused the appropriate sentence is Count 1 – two (2) years imprisonment and Count 2 – five (5) years imprisonment.
Order of the Court
THE COURT
Hon Justice Leonard R Maina
Puisne Judge
[1] R v Ligiau & Dari [1985 – 1986] SILR 214 and Regina v Phoboro [2013] SBHC 8,
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2021/158.html