R v Gota [2022] SBHC 31; HCSI-CRC 80 of 2021 (11 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gota
Citation:
Date of decision:	11 May 2022
Parties:	Regina v Michael Gota
Date of hearing:	4 May 2022
Court file number(s):	80 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Michael Gota is hereby convicted of 1 count of sexual intercourse- child under 15 contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 2. The defendant is hereby sentenced to 2 years imprisonment. 3. I direct that the time spent in pre-trial custody be deducted from the total sentence. 4. I further direct that the defendant to be released at the rising of the court. 5. Right of appeal.
Representation:	Ms. Letiara Pellie for the Crown Mr. Frank Brennan Kama for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b) [cap 26] Penal Code S 24 (2)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Phoboro [2013] SBHC 8, R v Ligiau and Dori [1986-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 80 of 2021

REGINA

V

MICHAEL GOTA

Date of Hearing: 4 May 2022
Date of Decision: 11 May 2022

Ms. Letiara Pellie for the Crown
Mr. Frank Brennan Kam for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 25^th February 2021, the defendant Mr Michael Gota was indicted with 1 count of sexual intercourse- child under 15 years contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant had initially pleaded not guilty to the charge. Upon negotiations between counsel, the defendant was re-arraigned on the 4^th May 2022 and he pleaded guilty to the charge. He was thereby convicted accordingly. He now appears before me for sentence.
2. It must be made known to you that the offence for which you are charged is serious and carries a maximum sentence of 15 years imprisonment. Notwithstanding the prescribed maximum sentence, the courts are empowered under section 24 (2) of the Penal Code to impose a shorter sentence depending on the peculiar circumstances of each case.
3. I now set out the facts in your case. You are from Bola Village, Central Islands Province. You are 24 years old. The complainant is from Heukasia Village, Malaita Province. She was born on the 23^rd March 2006 and was 14 years old at the time of offending. You and the complainant were neighbours at Titinge area and were acquainted to each other.

On the 12^th December 2020 between the hours of 11pm and 12am, the complainant and her younger sister went to the toilet. The complainant waited for her younger sister underneath Rupai’s house. You then whistled to the complainant and she came to you because you knew each other.
You took the complainant to a market place underneath an alite tree. You laid her on top of a table, undressed her and had consensual sexual intercourse with her. Whilst you were having sex with her, her mother and aunty called out to her. You then ran away. The next day you were reported to the police and was arrested and charged.

4. Having stated the facts and in order for me to impose an appropriate sentence on you, I must weigh the aggravating and mitigating features in your case. In sentencing you, I am also guided by the principles set forth in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 in which certain guidelines were enunciated for the courts to consider and apply in the sentencing of sexual offenders. Those guidelines included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, the issue of age disparity is present. You were 24 years old then and the complainant was 14 years. The age difference between you was one of 10 years. Being an adult person you are expected to be more responsible with a view of protecting young girls like the complainant. You did exactly the opposite in this case.
6. It is further submitted that the fact that the offending occurred at night time is also an aggravating feature in your case. According to the facts you and the complainant were acquainted with each other. You used that acquaintance to commit the offending at night time and the cover of night to fulfil your intentions. It was also the case that you have led the complainant to an isolated place and had sex with her.
7. On your behalf it was submitted by your lawyer that you are 25 years old and that you are a youthful offender. You have no previous conviction and I commend you for living a life free from crime for the most part of your life. I am however minded to note that the court in the case of R v Ligiau and Dori [1985-1986] SILR 214 and the case of R v Phoboro [2013] SBHC 8 where it was held that in cases of sexual assaults, matters personal to an accused are likely to have less impact on the sentence than with other serious crime.
8. It was submitted by your lawyer that you have pleaded guilty to the offending at first opportunity and I give you credit for your early guilty plea. Your early guilty plea not only shows remorse on your part but that you have owned up to your offending and you are willing to face the consequences of your action. It also saves the courts time and resources into conducting a trial into the matter.
9. Also in your favour is the fact that there is no breach of trust in your offending. There is also no pregnancy. There is no repetition of the offending and no force was used. In effect it was consensual sexual intercourse but that in doing so you have committed a serious offence. The complainant was 14 years old and she willingly participant in the act. That is unbecoming of a 14 year old and her character also goes in your favour. It is also noted that you have been remanded in custody since the 13^th December 2020. To this date, you would have spent a period of 1 year, 4 months and 28 days in pre-trial custody. That period of time will be taken into account in your sentence.
10. The court had noted with concern that cases of this nature are becoming very prevalent in our country. The courts in sentencing have also been very lenient. In light of the increasing number of these type of offending, the court ought to take a harder view on sentencing. Times and circumstances have changed and the courts must take those factors into account. I have noted that the normal range of sentences the courts have imposed in these types of offences is a suspended sentence to one of 4 years imprisonment.
11. On the facts of your case, I will put your starting point at 2 years imprisonment. For the aggravating features in your case, I will increase the sentence by 1 year. For the mitigating features discussed in this sentence, I reduce the sentence by 1 year. You are hereby sentenced to 2 years imprisonment. Since you have already spent a period of 1 year, 4 months and 28 days in pre-trial custody, I direct that you be released at the rising of the court.

Orders of the court

1. The defendant Mr. Michael Gota is hereby convicted of 1 count of sexual intercourse- child under 15 contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016
2. The defendant is hereby sentenced to 2 years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the total sentence.
4. I further direct that the defendant to be released at the rising of the court.
5. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge