R v Amalo [2021] SBHC 23; HCSI-CRC 462 of 2018 (25 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Amalo
Citation:
Date of decision:	25 February 2021
Parties:	Xavier Amalo
Date of hearing:
Court file number(s):	462of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The accused is sentence to 2 years imprisonment 2. The sentence is suspended on good behavior for 2 years 3. No further orders
Representation:	Kelesi A E and Meioko A for the Crown Gray G Public Solicitor and Max H for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (amendment) (Sexual Offence) Act 2016 Section 138 (1) (a) (d), 138 (1) (d) [cap 26]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 462 of 2018

REGINA

V

XAVIER AMALO

Sitting: Gizo Circuit

Date of Sentence: 25 February 2021

Kelesi A E and Meioko A for the Crown
Gray G Public Solicitor and Max H for the Defence

SENTENCE

Maina PJ:

You, Defendant Xavier Amalo had pleaded guilty and convicted on one count of indecent act without consent contrary to section 138 (1) (a) and (d) of the Penal Code (Cap 26) as Amendment by the Penal Code (Sexual Offences) Act 2016.

Summary of Agreed Facts

The defendant is Mr. Xavier Amalo (“Amalo”) and was 14 years old at the time of the offence and the complainant is Ms. Zelma Olana. She was 19 years old at the time of the offence.

On the 13^th of August 2016 at about 8:00 pm, the complainant Zelma Olana met a boy at Gizo market and they walked over to the Gizo Community High School. They went there and told stories and intended to have sexual intercourse.

While they were there, the defendant and his two friends came and found the complainant with her male friend inside the classroom. Defendant with his two friends chased the complainant’s friend away from her and she was alone inside the classroom.

The defendant approached complainant and asked her to hold his penis but she refused. He moved closer to complainant and kissed her on her mouth. As the defendant was doing that to the complainant someone came and flashed a torch light towards the classroom building. It was then, the defendants and his friends fled away from the scene.

The matter was then reported to Police.

The Penalty

The maximum penalty for indecent act without consent as per information against the defendant under section 138 (1) (d) of the Penal Code (Cap 26) as Amendment by the Penal Code (Sexual Offences) Act 2016 is five years imprisonment.

The Juvenile Offenders Act

Interesting to note the defendant was younger than the victim who was 19 years of age at the time of the offence. However, were there be a consent and no disturbance by the torchlight, it may a different story for this case.

The Mr. Xavier Amalo was 14 years old or young person when he committed the offence and he is now 20 years of age.

For the school record of the defendant, it is made available or produced by the Public Solicitor with the sentencing submission.

The information is important and helpful to the court when considering the best interests of the juvenile or young offender.

The accused is juvenile and left the school in Grade 6 and stays at the village. He has pleaded guilty for his crime at the first instance and has no previous conviction.

Notably the Public Solicitor has produced to the court a Certification of Completion by defendant on Building & Carpentry from St Peter Urban Training Centre, Gizo, Solomon Islands awarded to the defendant in November 2020.

There is no aggravating feature in this case.

I give credit to the defendant for the plea of guilty at the first opportunity and no previous conviction.

I taking into account the matters as submitted by the counsel’s in their submission, the mitigation, the prospect of rehabilitation and the best interests of this young person, the defendant is sentence to 2 years imprisonment.

Order of the Court

1. The accused is sentence to 2 years imprisonment
2. The sentence is suspended on good behavior for 2 years
3. No further orders

The Court
Hon. Justice Leonard R Maina
Puisne Judge