R v Sesema [2022] SBHC 72; HCSI-CRC 406 of 2020 (30 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sesema
Citation:
Date of decision:	30 September 2022
Parties:	Rex v Melekio Sesema
Date of hearing:	28 September 2022
Court file number(s):	406 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 The Accused is convicted and sentenced to a term of 5 years’ imprisonment. 2 I direct that the term of imprisonment commences from the date he was taken into custody. 3 I direct that the name and any identification of the victim be permanently suppressed.
Representation:	Ms P Tabepuda and Ms Naqu for the Crown Mr D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 136G
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 406 of 2020

REX

V

MELEKIO SESEMA

Date of Hearing: 28 September 2022
Date of Decision: 30 September 2022

Ms P Tabepuda and Ms Naqu for them Crown
Mr D Kwalai for the Defendant

SENTENCE

Introduction

1. Melekio Sesema has pleaded guilty to one count of compelling another to have sexual intercourse with his wife without the consent of the victim and knowing or being reckless as to the lack of consent. The charge to which you have pleaded guilty is an offence against section 136G of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Your plea was entered on the day your trial was to commence. You now appear for sentence.

Facts

2. On 9 March 2020 you were drinking with the victim. He had previously been in a relationship with your wife. That night you ordered your wife to go and have sex with the victim. She was afraid. She went to the victim’s house and woke the victim and told him what you had ordered her to do. You then went into the room. The victim wanted to get away but you punched him in the face. You then forced the victim and your wife to engage in oral sex with each other.

Personal Circumstances

3. You are married with children.
4. You have previously appeared before the Court for violent offending.
5. You have been remanded in custody since May 2020.
6. Your counsel has advised that you and the victim have reconciled although not through a customary reconciliation ceremony. Your counsel advised the Crown of the repairing of the relationship but the Crown has not been able to obtain confirmation of it.
7. I record what this Court said in R v Ligiau and Dori [1986] SBHC 15:
   • “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”

Aggravating Factors

8. The prosecution submits that there are several aggravating factors. The incident occurred at night in the home of the victim.
9. You intimidated your wife and used actual violence on the victim, punching him in the face. The Crown also submits that your intoxication was an aggravating factor. In the circumstances of this case your intoxication may have increased the fear that compelled your wife and the victim to comply with your orders. To that extent I find it is an aggravating factor.
10. The Crown submits that you disregarded the sanctity of both your own marriage and that of the victim. In the circumstances of this case there were necessarily two persons whose rights were attacked and two families that have been affected.
11. The Crown has submitted that your offending was pre-planned. The basis for this submission was that while at your own home you ordered your wife to go to the house of the victim and have sexual intercourse with him. I find that those actions were part of the offending as opposed to evidence of pre-planning.

Mitigating factors

12. You have pleaded guilty to the offence. The information was laid in the High Court in February 2021. Your counsel submits that your plea can be regarded as an early plea as it was entered after a minor amendment to the information. Your plea was entered on the day your trial was to begin. The minor amendment could have been dealt with months ago. Your plea did however spare the victim and your wife from the trauma of reliving the events and giving evidence of an intensely personal nature.
13. Your counsel also submits that you are remorseful and that your plea is a reflection of that remorse.
14. Although you have previously been before the Court, your counsel submits that you contribute to your community having helped build a kindergarten and taking part in community cleaning.

Principles of Sentencing.

15. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim, to your wife, to both families and to the community. You need to understand the harm you have caused. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to remind you and others who may be minded to act as you have of the consequences of such offending. I also need to provide for your reintegration into the community and for your rehabilitation.

Starting point

16. Both counsel have referred to Ligiau and Dori [1986] SBHC as the case that has set the tariff for sexual offending cases. The Court of Appeal has confirmed that the starting point for the rape of an adult victim following trial, where the case has no aggravating factors would be five years’ imprisonment. In Pana v Regina [2013] SBCA 19 the Court has confirmed that to be the position.
17. There does not appear to be Court of Appeal authority dealing with sentencing for offending against section 136G of the Penal Code. However, the offending is very similar to offending against section 136F except that in the circumstances of this case the offending affects the rights of two persons, the victim and your wife. I have referred to this in dealing with the aggravating factors.
18. Your counsel has submitted that the offending was less serious because it involved oral sex performed on your wife and performed on the victim. The submission was that such offending is less serious than if there had been penile penetration. I reject that proposition. The legislation does not make such a provision. I have had no evidence put before me to suggest that the traumatic effect of coerced sexual assault is any the less for non-consensual oral sex than for non-consensual sexual intercourse. Both are invasive. I find that the offending must be treated as just as invasive as offending involving penile penetration.
19. I adopt the initial starting point set out in Ligiau and Dori. There must be an increase in the starting point of five years’ imprisonment to reflect the aggravating factors. I find that the use of violence, the intrusion into the house of the victim at night are particularly aggravating. There will be an increase of 12 months for those aggravating factors. I increase the starting point by a further six months for the remaining aggravating features, in particular that you’re offending was an attack on the rights of two persons and caused harm to two families.

Discussion

20. For mitigating factors there will be a reduction. The most significant reduction must be for your guilty plea. That was not an early guilty plea. There was an amendment to the count you faced changing the word “her” to “his”. You had previously pleaded not guilty and had maintained that plea till the day your trial was to commence. I do not regard the amendment to be of such significance that it would entitle you to the sort of discount that may have available had the discussion resulting in the change to the charge taken place 18 months ago.
21. The Court of Appeal in Pana addressed the reductions that can be available for a guilty plea. At paragraph [29] the Court said:
    • “The judge was correct to make some reduction for the plea of guilty. In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty. In the present case, the plea of guilty was only entered after the trial commenced. It did, as we have said, spare the complainant from the ordeal of giving evidence and therefore deserves some recognition.”
22. The Court considered that the lateness of the plea greatly reduced the credit that should be given. In your case because the victim and your wife have been spared the stress of giving evidence, and your plea is an acknowledgement of your offending and an indication of remorse, credit will be given. For mitigating factors including the guilty plea I allow a reduction of 18 months to the sentence.

Orders

1. The Accused is convicted and sentenced to a term of 5 years’ imprisonment.
2. I direct that the term of imprisonment commences from the date he was taken into custody.
3. I direct that the name and any identification of the victim be permanently suppressed.

By the Court
Justice Howard Lawry PJ
Puisne Judge