R v Gigia [2022] SBHC 1; HCSI-CRC 566 of 2021 (7 March 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gigia
Citation:
Date of decision:	7 March 2022
Parties:	Regina v Simon Gigia
Date of hearing:	14 December 2021
Court file number(s):	566 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of one count of sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is hereby sentenced to 6 years imprisonment. 3. I direct that the time spent in pre-trial custody is to be deducted from the total sentence. 4. Right of appeal.
Representation:	Miss Hellen Naqu for the Crown Mr Stanley Aupai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 s 139 (1), S 136 D
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Ligiau & Dori [1986] SBHC 15, Regina v Chachia [2012] SBHC 145, Kingi Pepe v DPP (Unreported Criminal Appeal Case No. 4 of 1987, R v Asuana [1990] SILR 201,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 566 of 2021

REGINA

V

SIMON GIGIA

Date of Hearing: 14 December 2021
Date of Decision: 7 March 2022

Miss Hellen Naqu for the Crown
Mr Stanley Aupai for the Defendant

Sentence

Bird PJ:

1. The defendant Mr Simon Gigia is charged with one count of sexual intercourse with a child under 15 contrary to section 139 (1) (a) of the Penal code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the information, the defendant had entered a guilty plea and he was convicted accordingly. He now appears before me for sentence.
2. I must remind you that the offence for which you are charged is very serious and carries a maximum penalty of life imprisonment. It is that serious because you have intruded into the privacy of a little child and you have corrupted her at a very young age. You have robbed her of her innocence at such a tender age.
3. The facts of your case as presented by the parties to this case are the following:

The complainant and you are both from Veramatanga Village, North Guadalcanal, Guadalcanal Province. The complainant is a 6 year old girl.
Between 8.00am to 12 pm on the 20^th February 2019, the complainant went to your house. Whilst in your house, you carried your grandson into a room and the complainant followed you into the room. A short while later, your daughter came and took your grandson from you to give him a bath. The complainant had remained in the room with you.
Whilst in the room, you touched the complainant’s vagina whilst she was still standing. You then used your tongue to lick her vagina. The complainant reported the matter to her mother. On the 29^th June and was remanded in custody since the 1^st July 2021.

4. In order for me to impose the appropriate sentence in your case, I must take time to consider the aggravating features as well as the mitigating features herein. The starting point is to take note of the principles set out in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 in which Chief Justice Ward had set out certain factors that should be considered by the courts in the sentencing of sexual offenders. Those factors included disparity of age, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, it was submitted by the crown that there is presence of a huge disparity of age between you and the complainant. The complainant was only 6 years old then and you were about 40 years. The age disparity between you was one of 34 years. At your age, you should have known better but you acted like a silly teenager who was unable to resist the temptation and sexually molested the child for your own sexual lust. You should be ashamed of your action on the complainant.
6. It is also submitted by the crown that the very young age of the complainant is also a serious aggravating feature in your case. The complainant was an innocent 6 years old girl and her age makes her very vulnerable to such actions as you did. You have taken advantage of her innocence and vulnerability and her very young age for your own self-gratification.
7. On your behalf, it was submitted by counsel that you are a first offender without any previous conviction. You have no formal employment. You are married with 6 children. Three of your children are married and the three are still depended on you for payment of their school fess. It is however noted that your previous good character and your personal circumstances could not justify a substantial reduction of any sentence that the court would impose against you. That was the view of the court in the case of R v Ligiau & Dori [1986] SBHC 15 and also adopted by Pallaras J in the case of R v Chachia [2012] HCSI- CRC 95 of 2012.
8. It is further submitted by your lawyer that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your early guilty plea has shown you are remorseful and that you have owned up to your offending and willing to face the consequences of your action. Your guilty plea has also save the court’s time in conducting a trial into the matter. It has also save the complainant further stress and trauma in having to give evidence in a contested trial. These circumstances were noted and taken into account by the court in the case of Kingi Pepe v DPP (Unreported Criminal Appeal Case No. 4 of 1987 at page 2.
9. It is further submitted on your behalf that you and your family have paid compensation to the complainant’s parents for your wrong-doing. The payment of compensation shows that you are genuinely sorry for your action. It must however be noted that the payment of compensation should not be seen as paying your way out from the crime that you have committed. It merely restores peace and harmony inside your community. In any event, the court must give some credit for such payment of compensation. See the case of R v Asuana [1990] SILR 201.
10. The court will also take into account the fact that you have been remanded in pre-trial custody since the 29^th June 2021. To this date you have been remanded in custody for a period of 8 months and 7 days.
11. Also to assist the court in its sentencing, comparative cases were cited by both counsel for the crown and the defence. The medical report of the complainant was also brought to the court’s attention. Apart from other aspect of the medical report, it is noted that there was no labial injuries and no bleeding. The hymen was perforated, open but no injury noted. Notwithstanding sexual intercourse as defined in s.136 D of the 2016 amendment to the Penal Code (cap 26) also included cunnilingus and slight penetration of the vagina or anus. In that regard, sexual intercourse is a non-issue in this case.
12. From the various comparative cases cited by both counsel in this case, the sentences imposed by the courts for this type of offences ranges from imprisonment terms of 2 ½ years to that of 12 years. I have noted the circumstances of each offending in the cited cases.
13. In your case, you have violated the decency of a very young child. You had sexual intercourse with her by licking her vagina. I therefore put your starting point at 5 years imprisonment. For the aggravating features in your case, I would increase that sentence by 3 years. For the mitigating feature and more especially for your early guilty plea, I will reduce your sentence by 2 years. You are hereby sentenced to 6 years imprisonment. I direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant is convicted of one count of sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 6 years imprisonment.
3. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge