R v Muni [2021] SBHC 88; HCSI-CRC 12 of 2021 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Muni
Citation:
Date of decision:	10 September 2021
Parties:	Regina v Severino Muni
Date of hearing:
Court file number(s):	12 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. Count 1 – five (5) years imprisonment, 2. Count 2 – five (5) years imprisonment, 3. Count 3 – five (5) years imprisonment, 4. Count 4 – one (1) year imprisonment, 5. Counts 2 and 3 to be served concurrent to Count 1, 6. Count 4 is suspended for two years on good behaviour and to commence after serving Count 1, 7. Time spent custody to be deducted from this sentence, 8. No further order
Representation:	Kelesi A E for Crown Brook for Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 163 (1) (a) and ((2) (b), S 231 (1)
Cases cited:	R v Ligiau & Dori [1985 – 1986] SILR 214, Regina v Phoboro [2013] SBHC 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 12 of 2021

REGINA

V

SEVERINO MUNI

Date of Sentence: 10 September 2021

Kelesi A E for Crown
Brook R for Defence

SENTENCE

You, defendant Severino Muni had pleaded guilty on three (3) counts of incest contrary to sections 163 (1) (a) and (2) (b) of the Penal Code and one (1) count of intimidation contrary to section 231 (1) of the Penal Code and accordingly convicted upon own guilty plea on the charges.

1. Agreed Facts

The Parties presented these as agreed facts:

The defendant was 45 years old at the time of the offending and is from Nasusungga village, West Wainoni, Makira Province.

The complainant is Monica Kaoga, 21 years of age at the time of the offending from the same village as the defendant. The defendant is related to the complainant as his daughter.

The first incident that was on an unknown date between 1 January 2019 and 31^st December 2019. It happened in a bush garden at Nagau, West Wainoni.

The complainant said that the defendant (his father) told her to follow him to the garden. When she refused, she was threatened.

Whilst in the garden, the defendant had sexual intercourse with her. She felt painful to her vagina. After the several intercourse, they went back home.

On another incident, different from the first one above, was on an unknown between 1^st January 2019 and 31^st December 2019 at Nagau bush garden, the defendant has sexual intercourse with her as well.

During the encounter, the defendant was aggressive towards her, and forcefully told her to lie down on the ground. He then insert his penis into her vagina until he ejaculate. After this incident, she went back and told her mother.

Another third incident was at their dwelling house, at Nagau village, West Wainoni, Makira Province. This incident is different from the two happened in the garden described above.

The incident happened sometime between 31^st December 2019 and 3^rd January 2020.

It was on the early morning after 2am, whilst the complainant was still sleeping, she felt some pushed his finger into her vagina. She shouted her sister and everyone inside the house woke up. The defendant left and pretending to be sleeping.

The final incident was an intimidation on the complainant. This happened sometime after the incident of inserting of finger by the defendant. When the complainant went to sleep, the defendant came back to her, held a stick against her body and tear her shirt.

The defendant was reported to the Police by his wife and was arrested and remanded.

The defendant has been in custody for about 1 year and 7 months now.

2. The Penalty

A person who commit the offence of incest contrary to section 163 (1) (a) and (2) (b) of the Penal Code, the Maximum penalty is 10 years imprisonment and intimidation contrary to section 231 (1) of the Penal Code is liable to imprisonment for three years.

Antecedents

For the antecedent, the accused was 45 years old at the time of the offences and has no previous conviction.

Aggravating features

These matters are noted as aggravating features in this case:

• For age disparity, it is 20 years as the complainant was 24 years old and accused was 45 years old,
• Abuse of trust by the father as complainant is biological daughter,
• The act of incest was premediated being planned by the father,
• The offence was repeated over times and father was not able to realized that what he had was wrong, and
• These sexual acts has caused the physical and psychological impacts on the life of the complainant.

3. Mitigation

As noted above in the antecedent, the accused has no previous conviction.

4. The Sentence

The court gives less consideration on mitigating factors on the sexual intercourse offences^[1]. Beside other reasons, an obviously one and in particular with the offence of incest it is a disgrace, shameful, not according to the custom and religion practices.

Sexual offences are becoming common in our communities and this has been eminent with case of this nature coming before the court these days.

In this court circuit to Makira Province, sexual offence cases are almost the cases before me in the court.

Some people may joke about this prevalence or make fun of it or certain scenario but I wish say that this is a serious concern or matter and should be every ones’ concern.

We claim Solomon Islands a Christian country but the serious question to be asked, is these rate of sexual acts and behaviours before the court reflect the Christian principles for Solomon Islands? I will say “no” and thousand miles far back or away.

We also claim to be custom people and in custom this sexual intercourse with a biological daughter as you did to your daughter is not only worse, but very shameful to you and even by your relatives. In olden days it may result to death of such persons.

The prevalence of these sexual offences in our communities is now a concern and the Government, churches, community leaders, chiefs at our local places and all of us must try to do something about it before it gets out of hand.

With this case, you have pleaded guilty on 3 counts of incest charges of your own daughter, a disgrace and shame behaviour on yourself and certainly to your close relatives.

For this case the starting points in the sentence for an incest charges is 7 years and Intimidation charge is 2 years.

And upon considering the facts of the case, aggravating features, mitigating factors, the sentencing submission and case laws referred to by both the Crown and defence counsels it is my view that with the circumstances of the case against the accused the appropriate sentence for incest charge is 5 years imprisonment and one (1) year imprisonment.

Order of the Court

1. Count 1 – five (5) years imprisonment,
2. Count 2 – five (5) years imprisonment,
3. Count 3 – five (5) years imprisonment,
4. Count 4 – one (1) year imprisonment,
5. Counts 2 and 3 to be served concurrent to Count 1,
6. Count 4 is suspended for two years on good behaviour and to commence after serving Count 1,
7. Time spent custody to be deducted from this sentence,
8. No further order

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] R v Ligiau & Dari [1985 – 1986] SILR 214 and Regina v Phoboro [2013] SBHC 8,