R v Tagi [2022] SBHC 76; HCSI-CRC 89 of 2020 (11 October 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tagi
Citation:
Date of decision:	11 October 2022
Parties:	Rex v Gabriel Tagi
Date of hearing:	4 October 2022
Court file number(s):	89 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The Defendant Mr. Gabriel Tagi is convicted of 1 count of the offence under s.139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and 2 counts of the offence under s. 139 (1) (b) of the said Act. 2. The Defendant is hereby sentenced as follows: Count 1: The Defendant is sentenced to 5 years and 2 months imprisonment Count 2: The Defendant is sentenced to 3 years and 2 months imprisonment Count 3: The Defendant is sentenced to 3 years and 3 months imprisonment 3. The sentences in counts 1, 2 and 3 are to be served concurrently. 4. Time spent in pre-trial custody to be deducted from the total sentence. 5. Right of appeal
Representation:	Mrs Dalcy Belapitu Oligari for the Crown Mr Ron Dickey Pulekera for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016 [cap 26] S 139 (1)(a), S 139 (1)(b)
Cases cited:	Mulele v DPP and Poini v DPP [1986] SBCA 6, R v Ligiau and Dori [1985-1986] SILR 214,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 89 of 2020

REX

V

GABRIEL TAGI

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

Mrs Dalcy Belapitu Oligari for the Crown
Mr Ron Dickey Pulekera for the Defendant

SENTENCE

Bird PJ:

1. The Defendant Mr Gabriel Tagi was initially charged with 5 counts of sexual intercourse- 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 negotiation between the Prosecution and the defence, a nolle prosequi was filed in respect of that information and the Defendant was discharged therewith. An amended information was filed by the DPP on the 31^st August 2022 in which the Defendant was charged with 1 count of the offence pursuant to s.139 (1) (a) and 2 counts of the offence under s. 139 (1) (b) of the Act. The Defendant was arraigned on the amended information and he pleaded guilty to all charges. He was thereby convicted accordingly and he now appears before me for sentence.
2. The offences for which you are charged are very serious and the maximum sentence for the offence under s.139 (1) (a) is one of life imprisonment. For the offence under subsection (1) (b) is an imprisonment of 15 years. The courts are however empowered to impose a shorter sentence than the ones prescribed depending on the peculiar circumstances of each case. In order to do that the court must assess the facts, the aggravating features and the mitigating features in each case
3. In your case, the facts are the following. You are 36 years old. You were 30 years old at the time of the offending. The Complainant was born on the 8^th May 2004. She was between 12 and 14 years old at the time of incident.

You are married to the Complainant’s Aunt. At the time of incident, she was living with you and your family. She was attending Grade 5 at FM Campbell School.
The first incident occurred in 2016 when the Complainant was 12 years old. Your wife had gone to church and she was alone with your daughter Jacinta at the house. You removed her clothes and touched her breasts. The Complainant resisted but you forced her into having sex with you. Her vagina was painful and you penetrated her vagina with your penis after several attempts. You threatened to kill her if she told her Aunt about the incident.

The second incident occurred in 2017 when the Complainant was 13 years old. That incident occurred at the Police Barracks at Kirakira. The Complainant was alone and you have sexual intercourse with her.

The third incident occurred on the 23^rd March 2018 at your house at Kirakira. The Complainant was asleep when you entered her bedroom and had sexual intercourse with her.

4. Having stated the facts of your case, I will now discuss the aggravating features therein. It is submitted by Mrs Oligari that the Court must take note of the views of the Court in the previous case of Mulele v DPP and Poini v DPP in which the Court had set out four features that should be taken into account by the Courts in the sentencing of sexual offenders like yourself. Those features included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself. In your case, it is submitted by Mrs Oligari that there is presence of age disparity and abuse of position of trust. You were 30 years old then and the complainant was 12 years old. The age difference between you was one of 18 years. That is a huge age gap and that factor shall be weighed against you in this case.
5. Form the agreed facts; you are married to the Complainant’s Aunt. From that relationship, the Complainant had come to live with your family to attend school. You are looked upon as a father-figure to the Complainant. You are placed in a position of trust as a father-figure. You have breached that trust and have sexually molested the Complainant at a young age. It is also noted that the offending occurred at your home, a place where every child could feel the safety and tranquillity therein. You have turned your home into a crime scene.
6. It is further noted that what you did to the Complainant had caused her psychological and emotional stress. She will to live with that experience for the rest of her life. Further to that is the repetition of offending by you. The most obvious fact of your case is the repetition of offending. You are facing 3 separate charges on separate dates. That shows how you have committed the offending over a period of time. As an adult person and as a police officer, you should have known that it is against the law to be sexually involved with a girl who under the age of consent. Even with that knowledge, you have allowed yourself to be sexually involved with the Complainant over a period of about 3 years.
7. On your behalf, it was submitted by Mr Pulekera of Counsel that you are pleaded guilty to these offending at first opportunity. Your early guilty plea not only shows remorse on your part but it is also a sign that you have owned up to your offending and that you are willing to face the consequences of your action. Your early guilty plea also saves the court’s time and resources into conducting a trial into the matter. It also saves the Complainant further stress and trauma in having to come to court and to give evidence in a contested trial. In that regard, credit will be given to your plea of guilty.
8. I am told that you have no previous conviction so you are a first offender. I am also told that you are married with one child. Your wife is not formally employed and you are the sole bread winner for the family. Apart from your immediate family, you also look after your elderly father in the village. You hold some responsibility at your village. You are the Secretary to the Maniwiriwiri Aid Post Clinic Project. Having noted those personal circumstances, I am guided by the principles enunciated in the case of R v Ligiau & Dori [1985-1986] SILR 214, in which the court was of the view that matters personal to an accused person are likely to have less impact on sentencing than in other serious crime. It is also noted that you co-operated with the police during investigation and that is a plus for you.
9. It is further submitted by your lawyer that reconciliation was made between your family and the Complainant’s family. You have paid to the Complainant’s family red shell money worth $1,000.00 and $800.00 in cash. That reconciliation had brought normalcy between the two families. That aspect of your case will be taken into account but you also must note that the payment of compensation does not take away your criminal responsibility in such cases as this.
10. I have had the opportunity to peruse and note the case authorities in the sentencing of offenders like yourself by the Prosecution and the Defence. The range of sentences imposed by the courts was an imprisonment term between 2 years to 10 years depending on the peculiar circumstances of each case. It is noted that count 1 of the charges against you is more serious in nature because of the age of the Complainant at the material time. The repetition of the offending on the Complainant is also a very serious matter. For the facts of your case, I would put your starting point at 5 years imprisonment. For the aggravating features discussed above, I increase your sentence by 16 months. For the mitigating features and especially your early guilty plea, I would reduce your sentence by 14 months. Total sentence to serve on count 1 is one of 5 years and 2 months imprisonment. On count 2 of your charges, I put your starting point at 3 years imprisonment. For the aggravating features therein and especially the repetition of the offence, I will increase sentence by 18 months. For the mitigating features, I will reduce sentence by 16 months. Total sentence to serve on count 2 is one of 3 years and 2 months imprisonment. For count 3, I put your stating point at 3 years imprisonment. For the further repetition of the offence, I increase sentence by 20 months. For the mitigating features, I will reduce sentence by 16 months. Total sentence for count 3 is one of 3 years and 3 months imprisonment.

Orders of the court

1. The Defendant Mr. Gabriel Tagi is convicted of 1 count of the offence under s.139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and 2 counts of the offence under s. 139 (1) (b) of the said Act.
2. The Defendant is hereby sentenced as follows:

Count 1: The Defendant is sentenced to 5 years and 2 months imprisonment

Count 2: The Defendant is sentenced to 3 years and 2 months imprisonment

Count 3: The Defendant is sentenced to 3 years and 3 months imprisonment

3. The sentences in counts 1, 2 and 3 are to be served concurrently.
4. Time spent in pre-trial custody to be deducted from the total sentence.
5. Right of appeal

THE COURT
Hon. Justice Maelyn Bird
Puisne Judge