HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Sania 	
		
Citation:		
		
Date of decision: 	8 February 2021	
		
Parties: 	Regina v Ataban kapi Sania 	
		
Date of hearing: 	3 & 4 February 2021	
		
Court file number(s): 	687 of 2020	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 		
		
Judge(s): 	Bird J	
		
On appeal from:		
		
Order:	1. The defendant is convicted on one count 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.
2. The defendant is hereby sentence to 5 years imprisonment.
3. Time spent in pre-trial custody is to be deducted from the total sentence.	
		
Representation: 	Mr. John Wesley Zoze & Andrew Meioko for the Prosecution
Mr. Frank Brennan Kama for the Accused	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 Section 139 (1) (a)	
		
Cases cited:	Regina v Billam [1958] l WLR, Mulele v Director of Public Prosecutions; Poini v Director of Public Prosecutions [1986] SBCA 6, Pana v Regina  [2013] SBCA 19	

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 687 of 2020

REGINA 

V

ATABAN KAPI SANIA 

Date of Hearing: 3 & 4 February 2021
Date of Decision: 8 February 2021

Mr. John Wesley Zoze & Andrew Meioko for the Prosecution 
Mr. Frank Brenna Kama for the Accused 
SENTENCE 
Bird PJ:
1. 	The defendant, Mr Ataban Kapi Sania is charged with one count 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.
2. 	Upon being arraigned on the 3rd February 2021, the defendant had pleaded guilty to the charge. I must remind you that the offence for which you are charged is very serious. Its seriousness is manifested in the maximum sentence of life imprisonment.
3. 	The facts of your case are that you are from Harovo Village, Central Islands, Central Province. You were 50 years old at the time of offending. The complainant was 11 years old. She was a grade 4 student at the COC Mission School in Noro.
4. 	In September 2019, you were stranded and had no house to stay. Having approached the complainant’s father about your dilemma, you were taken by the family to live with them in their house at BTM area in Noro.
5. 	On the morning of the 13th March 2020, the complainant went to school at COC Mission School, Noro. At about 12:00pm, she returned home from school with her little brother. Upon arrival at the house, they were hungry so they looked for food but there was none. The complainant decided to cook food for them, but there was no matches to light the fire.
6. 	She then saw you and because she knew you were a smoker so she called out saying “meti you garem matches” and you replied “ia matches lo hia”. You then told the complainant that the matches was in the house and she climbed up to your house.
7. 	Whilst she was in your house, you told her to close the door and she did. From inside your room, you told the complainant that you had the matches. She then entered your room and you told her and I quote “mi like fake”. At the material time, she was only wearing a trouser, a shirt and no pants.
8. 	The complainant pulled down her trousers to her legs and she laid down on your bed. You then undressed and pushed your erected penis into her vagina. You moved your buttocks several times and the complainant felt something watery coming out from her vagina. The complainant heard someone coming into the house, so she wore her trouser and ran out of the room.
9. 	The complainant’s uncle Abel Tasiman had arrived at the house and saw the complainant inside the house. At about 4:30pm the complainant’s step-mother Mrs Janet Kola heard about the incident that the complainant was seen by her uncle Abel Tasiman inside your house.
10. 	Ms Janet Kola asked the complainant about the incident, but she did not tell her anything. She then took the complainant and checked her vagina and saw that it was reddish. She also saw blood stains on the trousers that the complainant was wearing.
11. 	She told the complainant to take a shower and they went to Noro Police Station and reported the matter. You were arrested on the 14th March 2020 and was remanded in custody since then.
12. 	In this case, the prosecution had submitted that there are a number of aggravating features in your offending. It is submitted that the offending was pre-meditated. It is obvious from the facts that you have lured the complainant into your room to get a match. It is also obvious that you intended to have sexual intercourse with the complainant because you asked for sex as she entered your room.
13. 	The second aggravating feature in your case is the age disparity between you and the complainant. You were at a ripe old age of 50 years and the complainant was just 11 years old. The age gap between you and the complainant was 39 years. At the age of 50, you could have been a grandfather to the complainant.
14. 	The third aggravating feature is the tender age of the complainant. Being a child of only 11 years, she was vulnerable to abuse by adults like you.
15. 	Fourthly is that there is a breach of trust in your offending. The complainant’s father had taken you in as part of his family. You were living at the mercy of the complainant’s family and you have turned around and abused their young daughter. You are a person that cannot be trusted with children.
16. 	The fifth aggravating feature is that the offending had occurred in the family home. A family home should have been a place where the complainant and her family could feel safe and protected, but their home had been turned into a crime scene.
17. 	On your behalf, your lawyer has submitted that you have pleaded guilty to the offending at first opportunity. Your guilty plea had saved time and expenses from conducting a trial into the case. It had also save the complainant further stress and trauma from reciting the horrific experience that she had had. Your early guilty plea also shows remorse on your part and that you are willing to face the consequence of your action.
18. 	I have also noted that you have no previous conviction. I commend you for living a crime free for the most part of your life.
19. 	I have further noted that there was a delay in this case. The date of offending was March 2020. The matter was committed to the court in June 2020. The information was not filed until the 27th January 2021, some 7 months after committal.
20. 	I am told that you have a chance of rehabilitation. I am unable to see the prospect of that since you have been remanded in custody since March 2020 to date. I am unsure that at an old ripe age, there is prospect of rehabilitation.
21. 	In sentencing you I am guided by the principles laid down in the case of R v Billam [1958] 1 WLR and adopted by ward CJ in the case of DPP v Mulele and DPP v Poini [1985 – 1986] SILR 145. I am also inclined to take into consideration the comments of the court of Appeal in the case of Rina Pana v Regina Criminal Appeal Case No: 13 OF 2013.
22. 	From the aggravating and mitigating factors discussed in this case and bearing in mind the principles set out in the Pana case, I am of the view that the appropriate starting point in your case would be one of 6 years. For the aggravating features in your offending, I will increase that sentence by 2 years.
23. 	For your early guilty plea and other mitigating factors stated above. I will reduce your sentence by 3 years. I therefore sentence you to 5 years imprisonment.
Orders of the court
1. 	The defendant is convicted on one count 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.
2. 	The defendant is hereby sentence to 5 years imprisonment.
3. 	Time spent in pre-trial custody is to be deducted from the total sentence.
THE COURT
Justice Maelyn Bird
Puisne Judge