R v Koti [2021] SBHC 98; HCSI-CRC 511 of 2019 (9 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Koti
Citation:
Date of decision:	9 July 2021
Parties:	Regina v Samson Koti
Date of hearing:	2 July 2021
Court file number(s):	511 of 2019
Jurisdiction:	Criminal
Place of delivery:
	Palmer CJ
Judge(s):
On appeal from:
Order:	1. Enter conviction for the offence of sexual intercourse with a child under 15 years contrary to section 139 (1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. 2. Impose sentence of 5 years. 3. The period spent in custody is to be deducted from the sentence.
Representation:	Mrs. O. Ratu-Manu for the Crown Mr. R. D Pulekera for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b)
Cases cited:	Pana v Regina [2013]SBCA 19, R v Billam [1963] 8 CR. App.R.(s)48

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 511 of 2019

REGINA

V

SAMSON KOTI

Date of Hearing: 2 July 2021
Date of Sentence: 9 July 2021

Counsel
Mrs O. Ratu-Manu for the Crown
Mr. R. D Pulekera for the Defendant

Palmer CJ.

1. You have been charged with the offence of sexual intercourse with a child under 15 years contrary to section 139 (1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016 (“the Sexual Offences Act, 2016”). This provision covers offences committed with girls between the ages of 13 and 15 years of age and carries a maximum sentence of 15 years imprisonment.
2. Previously this type of offending is defined as defilement and the penalty for defilement of a girl between the age of 13 and 15 years, of 5 years has now been increased to 15 years under the Sexual Offences Act 2016.
3. This increase in the maximum sentence of imprisonment for an offence which previously was fixed at 5 years reflects the level of seriousness and concern with which Parliament views this type of offence in the community and the need to protect young girls from other men and themselves. Young girls often fall victim to the uncontrolled urges of men to satisfy themselves at the expense of the victim, their dignity, families and future. The consequences can be long lasting through ongoing shame, fear and insecurity.
4. Sadly, this type of offence is becoming more prevalent and the courts have a duty to ensure there is sufficient general and specific deterrence in the community by the type of sentences that are imposed.

There are however varying degrees of seriousness and the court is expected to treat each case separately on its merits and to impose an appropriate sentence.

5. The courts have repeatedly stated that those who commit this type of offence should expect an immediate custodial sentence.
6. The defendant is the brother in law of the victim, married to her elder sister at the time of the commission of offence. Although he has only been charged with one count of sexual intercourse, it is not disputed that he had previously had sexual intercourse with the victim at an earlier time.
7. In Pana v. Regina^[1], the Court of Appeal noted the “alarming level of sexual violence”^[2] in Solomon Islands and the need to consider increases in penalties. It went on to endorse the Billam Guidelines^[3] in which the three starting points of five, eight and fifteen years for rape were set, and noted that where the victim is a child below the age of consent, the starting point should be eight years.
8. I am satisfied the starting point in this case without any aggravating or mitigating features and a guilty plea entered, should be eight years^[4]. Where aggravating features exist, as in this case, there should be a corresponding increase in the sentence of imprisonment to be imposed.
9. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the aggravating feature in this case, that of the age of the victim at 14 years. This places her at a young and vulnerable age at the time of commission of the offence. Her young age is a serious aggravating feature, with her childhood innocence being deprived by such unwanted sexual behaviour. Her young age was taken advantage of by the defendant.
10. The second aggravating feature is the disparity in age. The defendant was 26 years old at the time of the commission of the offence, while the victim was 14 years old, a difference of 12 years. Being older, raises an expectation of being responsible and accountable in protecting young girls from this type of offence. She will live with this sexual abuse for a long time.
11. The third aggravating feature is the breach of trust demonstrated in the offending. As a brother in law to the victim, married to her elder sister, he was expected not only to respect her but to protect and care for her as a young girl of tender age. He took advantage of the sanctity of the family home and committed the offence. He took advantage of his position of trust and abused the victim.
12. The fourth aggravating feature is that the offending was intentional and deliberate. It was committed when his wife was away from home, made sure there was no one around and when someone made enquiry about the whereabouts of the victim, lied about it.
13. I am satisfied taking all the aggravating features into account, to increase the sentence by 2 years to 10 years.
14. On the other hand, I note the following mitigating factors, first his guilty plea that at the earliest opportunity had admitted the offence. This has not only saved court time and expense, but also saved the victim from the distress of having to give evidence in court and relive the trauma of the sexual abuse. I accept this is consistent with remorse, being sorry, and facing up to his actions.
15. I note this is his first time to be in trouble with the law and is very apologetic about this. I note that he has cooperated well too with the police.
16. I accept that compensation in custom has been paid and the matter resolved peacefully among family members. He is a young man and has a bright future in front of him, his prospects of rehabilitation are good. I deduct three years for this.
17. I also note the element of delay, not less than 2 years in remand awaiting trial and deduct a further 2 years, leaving a sentence of 5 years to be served.
18. I am also satisfied the period served in pre-trial custody is to form part of the sentence and so to be deducted accordingly.

Orders of the Court:

1. Enter conviction for the offence of sexual intercourse with a child under 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.
2. Impose sentence of 5 years.
3. The period spent in custody is to be deducted from the sentence.

The Court.

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^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] 2^nd Interim Report – Sexual Offences, of the Solomon Islands Law Reform Commission Review of the Penal Code and Criminal Procedure Code, published in June 2013 at page 39, paragraph 2.3.
^[3] R. v. Billam [1963] 8 CR. App. R. (S) 48
^[4] See Pana v. Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).