R v Manevisi [2021] SBHC 55; HCSI-CRC 62 of 2011 (6 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Manevisi
Citation:
Date of decision:	6 August 2021
Parties:	Regina v Michael Manevisi
Date of hearing:	21 July 2021
Court file number(s):	62 of 2011
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of one count of indecent assault contrary to section 141 (1) of the Penal Code (cap 26). 2. The defendant is sentenced to 2 years imprisonment. 3. I direct that the time spent in pre-trial custody is to be deducted from the total sentence. 4. The defendant is to be released at the rising of the court 5. Right of appeal.
Representation:	Mrs. Margret Suifa’asia for the Crown Mr. Sholton Rodney Manebosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 136, S 141 (1)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Mae (crc 289 of 2005),R v Tata (157 of 2019), R v Tumulima [2013] SBHC 112

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 62 of 2011

REGINA

V

MICHAEL MANEVISI

Date of Hearing: 21 July 2021
Date of Decision: 6 August 2021

Mrs. Margret Suifa’asia for the Crown
Mr. Sholton Rodney Manebosa for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 3^rd March 2011, the defendant, Mr. Michael Manevisi was indicted with one count of rape contrary to section 136 of the Penal Code (cap 26). A nolle prosequi was filed by the DPP in respect of that charge on the 15^th July 2021 and the defendant was discharge of that charge. An amended information was then filed on the same date whereby the defendant was charged with one count of indecent assault contrary to section 141 (1) of the Penal Code (cap 26). Upon being arraigned on the amended information, the defendant had pleaded guilty to the charge. He was thereby convicted accordingly.
2. The offence for which you are charged is a felony and carries a maximum sentence of five years imprisonment. In sentencing you, I am required to take into account the facts, the aggravating features and the mitigating features in your case.
3. The facts as were agreed to by both parties in your case are as follows:

The complainant is Margaret Ruina Nonol. Her mother Salome Pengo was previously married to a man from Philippines. The complainant had a younger brother. At the time of offending you were 30 years old and the complainant was 12 years old. The complainant’s mother then married you and you have no other children. The complainant and her younger sibling lived with you and their mother.
In 2006, the complainant was attending grade 3 at Tiaro Primary School, West Guadalcanal. Between Januarys to June 2006, you sexually assaulted the complainant. The incident occurred at night time whilst the complainant was sleeping with her younger sibling in their room. You entered their room, undressed the complainant and undressed yourself and you sat over the complainant. You then rubbed your erected penis on the complainant’s vagina and thrusts it against the vagina. It caused pain to the complainant and she cried. You then got up and left the room.
In 2015, you presented a chupu, a cultural ceremony to the complainant and her husband. You said sorry to them and asked for their forgiveness because you have by then realised that the complainant and her brother were the only children you had through marriage with their mother. The complainant and her husband accepted the chupu which comprised of a pig, a shell money and $1,000.00 cash money.

4. In your case, I will reiterate the guidelines set out by the Court of Appeal in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 whereby the courts in their sentencing of like-offenders should take into consideration. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself. Notwithstanding, the courts in each case should also take into account the peculiar facts and circumstances of each case so that justice is not only done but must also be seen to be done.
5. In your case, Mrs. Suifa’asia of the prosecution had submitted that there are several aggravating features in your offending. Firstly is that being the step-father of the complainant, you owe a duty of care towards her. You are expected to look after and take proper care of her. You have breached the trust placed upon you by the family and the community at large and had sexually molested her.
6. There is a huge age disparity between you and the complainant. You were 30 years old then and the complainant was 12 years old. The age disparity between you and the complainant is 18 years.
7. The court is also urged to take into account that the complainant was below the consenting age when you sexually molested her. At that age, she was vulnerable to abuse by men like yourself. I have also noted that she was deprived of her dignity at a very young age.
8. I am also urged to take note of the fact that the offending occurred at night. You have used the cover of night to commit the offending. It is also noted that you committed the offending at your family home. The home is supposed to be a safe haven for young children like the complainant but you have turned your home into a crime scene.
9. On your behalf, it was submitted by Mr. Manebosa of counsel that you have pleaded guilty to the offence. I give you credit for your guilty plea. Your guilty plea saves courts time and resources in conducting a trial into the case. It also shows remorse on your part and you are willing to face the consequences of your action. Your guilty plea also saves the complainant further stress and trauma in having to come to court to recite her experiences of the past.
10. It is also submitted by counsel that you are a first offender without any previous conviction. I commend you for living a crime free life for the most part of your life. I have also heard that you have reconciled with the complainant and her husband and you have paid compensation to settle the matter in custom.
11. I am especially concerned about the delay in the completion of your case. The offending occurred between Januarys to June 2006. To this date, a period of more than 15 years had elapsed. I have noted that some period of the delay is caused by you because you have not answered to your bail. I also take note of the fact that a warrant of arrest was issued by this court for your arrest on the 30^th July 2013. That warrant was not executed by the police for about 6 years. A fresh warrant of arrest was issued by the court on the 20^th September 2019 and you were arrested and remanded in custody on the 3^rd June 2020. You have been remanded in custody since then.
12. I must mention here that a delay of 15 years in the prosecution of a criminal case is unacceptable. In the case of R v Chris Mae- Criminal Case No. 289 of 2005, the court was of the view that a delay for fifteen months without trial is unconstitutional and flies in the face of the Constitution.
13. Having said that and in this case before me, I have taken note of the case of R v Boniface Tata [2021] SBHC 157, whereby the defendant who was a grand uncle of the complainant was charged with one count of indecent act on a child under 15 years. He was sentenced to 2 years imprisonment.
14. In the case of R v Tumulima [2013] SBHC 112, the defendant was charged with one count of indecent assault and one count of criminal trespass. The defendant was sentenced to 3 ½ years imprisonment for indecent assault.
14. After having considered all of the aggravating and mitigating features above, I am of the view that the appropriate sentence that I will impose against you is one of two years imprisonment.

Orders of the court

1. The defendant is convicted of one count of indecent assault contrary to section 141 (1) of the Penal Code (cap 26).
2. The defendant is sentenced to 2 years imprisonment.
3. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
4. The defendant is to be released at the rising of the court
5. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge