R v Mihaka [2021] SBHC 30; HCSI-CRC 537 of 2019 (25 February 2021)

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Case name:	R v Mihaka

Citation:

Date of decision:	25 February 2021

Parties:	Regina v Alfred Zero Mihaka

Date of hearing:

Court file number(s):	537 of 2019

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	1. Ct 1 – 3 years imprisonment, 2. Ct 2 - 3 years imprisonment, 3. Ct 3 - 3 years imprisonment, 4. Ct 2 and 3 sentences is suspended on good behaviour for 2 years, 5. The suspended sentences to commence after the imprisonment of Ct 1, 6. Any period in custody to be deducted from the sentence, 7. No further orders

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

Catchwords:

Words and phrases:

Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 139 (1) (b)

Cases cited:	Mulele v Director of Prosecution and Poini v Director of Prosecution [1985 – 1986] SILR 145

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

You, Alfred Zero Mihaka have pleaded guilty and convicted on three counts of sexual intercourse with a girl under 15 years of age contrary to section 139 (1) (b) of the Penal Code (Cap 26) as Amendment by the Penal Code (Sexual Offences) Act 2016.

The complainant Sancia Lelani was 13 years of age and the Defendant Alfred Zero Mihaka was 67 years old at the time of the offences.

In 2019, the complainant was residing with the Defendant and his wife at Kindu, Munda, Western Province. The complainant’s mother is the sister of the defendant’s wife and so she is related to the defendant as an uncle.

On several occasions, the complainant had seen the Defendant with money and so the complainant had decided to ask the Defendant for some money.

At one time in February 2019, she met the Defendant at the market when he was buying the smoke and the complainant asked him for $20.00. The defendant then asked the complainant if he gives the money how she would repay back the money to him. The complainant told the Defendant that she would do so with her cunt (vagina). She told the Defendant that she would do so right away.

And an unknown date between 1^st February and 28^th February 2019 in the bush close to Ziru’s residence at Kindu, the defendant had sexual intercourse with the complainant by penetrating his finger in the complainant’s vagina. The Defendant then gave $20.00 to the complainant.

On the second time also on an unknown date between 1^st February and 28^th February 2019 in the bush close to Cynthia’s residence at Kindu, the defendant had sexual intercourse with the complainant by stimulating the complainant’s vagina with his tongue.

And on the last occasion also between 1^st February and 28^th February 2019 in a dwelling house at Kindu village, the defendant had sexual intercourse with the complainant by stimulating the complainant’s vagina with his tongue.

Each on the second and third occasions, the defendant gave the complainant $20.00’s.

Defendant is now an old man with his penis not strong or lacked the strength to penetrate the complainant’s vagina and so on the first occasion he used his fingers and on other two occasions he simply used his tongue.

The Complainant’s grandmother reported the case to the Police. And during a record of interview with the Police, the defendant admitted his sexual relationship with the Complainant.

We are all familiar with the cases of Mulele v Director of Prosecution and Poini v Director of Prosecution [1985 – 1986] SILR 145 and there four features the court should consider in the sentence, the age disparity, abuse of trust, subsequent pregnancy and character of the girl.

With this case there are aggravating features with the age difference of 54 years, tender age of 13 years, and abuse of trust as she is related to the defendant as uncle and by custom or culture defendant should be a person to be relied for assistances at all times.

With the character of the girl consideration or issue, the facts discloses an interesting behavior or attitude by the accused when the complainant asked the accused for $20.00, the defendant then asked the repay of the money with some acts from her. This attitude was for all the occasions with money and sex and or likewise sex for money. It may be that the accused had taken advantage of the hardship of money these days and the venerability of the complainant for money as at the three occasions the accused gave her $20.00’s in exchange for sex.

I wish to raise an interesting matter that has been noted at the recent court circuits here or this part of the jurisdiction. There has been numerous sexual offence cases coming or disposed by the Court.

The prevalence of this type of cases in the court raises a great concern in our communities. A concern at all times that must be taken into account when the court considers the sentences for such defendants of this type of offences. It may deter the people who intend or from committing these type of the offences.

Credit for the accused’s plea of guilty, on the first appearance to the court and no previous conviction.

I noted the counsel’s sentencing submissions by the Crown and Defence, disparity of the age of 54 years and abuse of trust

Taking into account the plea of guilty and or at the first opportunity, fact or the circumstances of the case the concern of the prevalence of sexual offences in this part of jurisdiction and related matters, the defendant is sentenced 3 year imprisonment for each count of sexual intercourse of a child under 15 years old. The sentences to be served as by the following orders.

High Court of Solomon Islands

R v Mihaka [2021] SBHC 30; HCSI-CRC 537 of 2019 (25 February 2021)