R v Sema [2023] SBHC 115; HCSI-CRC 678 of 2021 (16 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sema
Citation:
Date of decision:	16 November 2023
Parties:	Rex v Gabriel Sisikibatu Sema
Date of hearing:	14 November 2023
Court file number(s):	678 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Defendant is sentenced to 4 years imprisonment from the date of this sentence. 2. No orders as to any deduction for custodial time or delay.
Representation:	Mr A Kelesi and N. Tonowane for the Crown Mr C Rarumae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (a)
Cases cited:	R v Ramo [2013] SBCA 9, Mulele v Regina [1986] SBCA 6, Regina v Bonuga [2014] SBCA 22, R v Qoloni [2005] SBHC 73, R v Pige [2023] SBCA 36, Nickson v R [2009] SBCA 17, R v Pana [2013] SBCA 19, R v Sinatau [2023] SBCA 38

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 678 of 2021

REX

V

GABRIEL SISIKIBATU SEMA

Date of Hearing: 14 November 2023
Date of Hearing: 16 November 2023

Mr A Kelesi and N Tonowane for the Crown
Mr C Rarumae for the Defendant

SENTENCING AFTER PLEA OF GUILTY

(Faukona, DCJ).

1. The Defendant is known by the name as Gabriel Sisikibatu Sema. He was 76 years of age at the time of offending. He lives at Kopana village, South Choiseul. His wife is still alive and she is 65 years old now.
2. The victim’s name is Clarita Vularia and she lives at Moli village, North Choiseul. She was at the age of 9 years old when the offence occurred. The Defendant is the grandfather of the victim.
3. The Defendant was charged for one count of having sexual intercourse with a child under 15 years contrary to S. 139 (1) (a) of the Penal Code as amended by the Penal code (Amendment) (Sexual Offence) Act 2016.
4. On 14^th November 2023 the Defendant was arraigned and he pleaded guilty to the charge instantly at the first opportunity.
5. Having pleaded guilty, the outstanding issue is for the Court to consider an appropriate sentence measured against all the circumstances surrounding the committal of the offence and other facts as well.

Agreed Facts:

6. The incident occurred on an unknown date between 1^st June 2021 and 30^th June 2021, at Kopana, Moli village, North Choiseul, Choiseul Province.
7. On the day of incident, the victim was at her home at Moli village, North Choiseul. Whilst at home, the Defendant approached her and asked her to accompany him to the garden.
8. On their way, about 50 meters from the village, in the bush, the defendant turned to the victim and asked her, if he could lick her vagina. The victim did not say anything but was afraid when she heard that.
9. The Defendant then asked her to remove her lavalava, which he did, and laid her down facing upward. The Defendant then proceeded to lick her vagina with his tongue for more than one minute.
10. While the Defendant continued to lick the victim’s vagina, another of the Defendant’s grand-daughters namely Janite Nanatina, who also followed the same road behind them, saw the Defendant when he licked the victim’s vagina. She was shocked to see what happened so she ran back to their house.
11. When the Defendant noticed Junite Nanatina saw him, he stopped from licking the victim’s vagina, it was then the victim got up and ran away back home, and told her sister about what happened.
12. Four days after the incident the victim’s Auntie Olive Gagole heard what happened to the victim and asked her about it. The victim told her about what the Defendant did to her. Her auntie then reported the matter to the Police.

Usual elements of sentencing policy.

13. There are three elements, significant as part of the sentencing policy. There are rehabilitation, deterrence and punishment.
14. The only two which in my view appropriate in this sentencing is deterrence and punishment.
15. Punishment is relevant considering the maximum sentence for this type of offence is life imprisonment according to s. 139 (1) (a) of the Penal Code, as (Amendment) (Sexual Offences) Act 2016.
16. The core purpose of punishment is to ensure the Defendant realizes the arm of law is sharp and any person who breaches law will be punished. The second reason is because of the prevalent occurrence of such offence within the communities of Solomon Islands.
17. Whilst punishment in permitted in law, the Court still has to strike an appropriate sentence that equated to the facts surrounding the committal of the offence (see R V Ramo)^[1] and the upper limit of the sentence.
18. The second element is deterrence. The Court is vested with authority to consider the general deterrence and personal deference of the Defendant.
19. General deference becomes effected when the court sends a message to general public that anyone out there or within the Community from which the Defendant comes from, is expected to be dealt with seriously by the Courts should anyone wish to follow or tempted to commit any offence or the same offence the Defendant did.
20. Personal deference will ensure the Defendant do not re- offend again. Should he tempted to repeat the same will be dealt very severely and the Court’s cannot lenient to any like- minded?
21. The essence of sending these messages are to reflect that this type of offence is becoming prevalent in this country. In particular adult men or even old men are abusing by committing sexual violence against girls under the age of 15.
22. This sentence will reflect that law as created by Parliament is aimed at protecting young girls and women from evil minded men who are in position of trust against vulnerable young girls.
23. The communities have condemned such behavior for so long and the Courts must responds positively to their cries by dealing with offenders seriously who degrade the decency, dignity and moral standing of vulnerable young girls.

Aggravating Facts.
Age of the child.

24. The victim in this case was 9 years old at the time of offending. The age itself is an aggravating factor – see Mulele V Regina^[2].

Age Disparity.

25. The victim is 9 years old and the Defendant is 76 years old, a difference of 67 years in between. In the case of Mulele V DPP^[3], the Court stated that age disparity is an aggravating factor.

Abuse of Position of trust.

26. The Defendant is the grandfather of the victim. The Defendant was entrusted in the family to care and provide security to his grandchildren. He abuse his position of trust by sexually abusing his own grand- daughter - See Malele V DPP^[4].

Psychological and emotional effect.

27. There is no doubt the child may have suffered some level of psychological and emotional trauma, especially when the news of such immorality spread around the communities. It may bring shame to her and her family. See Regina v Bonuga^[5] which the court stated that the level of psychological harm that creates on going issue for the complainant is well documented and can be taken judicial notice of. That is well noted.

Premeditation.

28. From facts the Defendant seem to pre-planning the offending. The facts reflect it was the Defendant who called the victim from her home to accompany him to the garden was a trick to fulfil his ego.
29. 15 meters away from the village the Defendant turned to the victim and asked if he could lick her vagina. The victim said nothing and was afraid when she heard. Eventually she submit to the Defendant’s desire, and hence committed the offence. Inference must be drawn he must have been thinking and planning to abuse the victim.

Mitigating Factors.

30. The defendant entered an early guilty plea at the first available opportunity. This reflects he is willing to face his own unlawful action. Early guilty plea saves court time and resources. Not only that but importantly avoid the victim coming to Court and relate an ordeal that had caused her and family shame.
31. In the case of R V Qoloni^[6] the court stated that early guilty attracts 1/3 deduction in sentencing.

Remorseful.

32. The Defendant feel remorseful for his own action. The message was released to the Court by his Counsel. He also promised not to repeat or commit any offence again.
33. A plea of guilty demonstrates the Defendant is remorseful and sorry for the evil and wrong he had done, but is courageous enough to face the consequences that flow from it, R V John Mark Tau^[7].

First Time Offender.

34. The defendant is the first time offender with no prior convictions recorded for the past 74 years. That shows he is a law abiding citizen until he committed this offence.
35. The Defendant corporate with Police during investigation and did not resist arrest or escape. This perhaps due to his old age and medical conditions.

Medical Report.

36. There was a medical report on the file written by a registered nurse at Moli clinic, Choiseul. That the Defendant has chronic knee problem, eye problem, conatines urine retention and old age.
37. Though the report may not appear official or formal according to protocols but I have seen that Defendant myself. He is an old man of 76 years of age. He used walking stick to assist him walking. He is blind and has hearing problems. He is a frail and weak old man.

Reconciliation.

38. I noted the Defendant’s son Mr. Robert Silava had given K400.00 to the victim’s mother on behalf of the Defendant. The Defendant expressed and convey his apology to the victim and his family.
39. In R V Ben Pige^[8]. The Court of Appeal stated that the Court has said previously, “We accept the law of S. I has always recognized custom and payment of compensation, has always been part of the custom of the people of Solomon Islands.
40. Compensation is an important mans of restoring peace and harmony in the Communities. The Court should always give some credit for such payment, see Nickson V R^[9].
41. In the above case the court further said custom compensation must be considered by the Court in assessing sentence as mitigating factor but limited in its value.

Delay.

42. On the issue of delay there is nothing submitted by the Defence Counsel.

Starting Point.

43. In Pana V R^[10], the Court of Appeal consider, when the victim is a child below the age of consent the starting point should be 8 years, whether for conviction of rape or defilement.
44. In the case R V Tony Sinatau^[11] affirmed the starting point of 8 years in Pana case.
45. With the law ascribing the starting point, I must bound by it setting 8 years as a starting point in this case.
46. Counsels have furnished comparative sentences and terms but I will treat this case as special case, than any other case the authority has recorded. In fact this is a difficult case to impose a proper sentence.
47. Not because I refuse to accept aggravating features and accept mitigating factors however strictly abide by 8 years but I have to exercise my discretion to render justice applicable in this case. Therefore I suggested to lower the starting point to 5 years imprisonment.
48. This case is one of the difficult one. After I have considered all the aggravating factors above I have accelerate the starting point upward above 5 years.
49. After considering the mitigating features I deduct the sentence to one of 4 years imprisonment. The special condition I consider, not merely basing on medical report but I have seen the Defendant and his misdemeanor. He is 76 years old man, frail and weak. He is deaf and blind. His health condition is seemingly very poor.
50. He has urine retention at times, simply mean blockage urination. He also has chronic knee problem and supported with a walking stick to walk.
51. It is my opinion that his life span could be short.
52. With those accreditations as to aggravation and mitigating features, I finally conclude a sentence of 4 years is best appropriate. This sentence reflect even an old man should be a law abiding citizen and not to abuse children.

Orders:

1. Defendant is sentenced to 4 years imprisonment from the date of this sentence.
2. No orders as to any deduction for custodial time or delay.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013)
^[2] [1986] SBCA 6; (1985-1986) SILR 145 (14 January 1986).
^[3] Ibid 3
^[4] Ibid 3.
^[5] [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014).
^[6] [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005).
^[7] Criminal Case No 58 of 1993.
^[8] SICOA CRAC 9014 of 2023.
^[9] [2009] SBCA 17; Criminal Appeal 11 of 2008 (26 March 2009)
^[10] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8^th November 2013)
^[11] SICOA CRAC 9027 of 2023.