R v Koke [2023] SBHC 32; HCSI-CRC 133 of 2021 (17 March 2023)

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Case name:	R v Koke

Citation:

Date of decision:	17 March 2023

Parties:	Rex v Moffat Koke

Date of hearing:	16 March 2023

Court file number(s):	133 of 2021

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	Count 1 - 2 years imprisonment Count 2 - 3 years imprisonment Count 3 - 3 years imprisonment Count 4 - 3 years imprisonment Counts 1 and 2 to serve concurrently Counts 3 and 4 to serve concurrently Sentences on Counts 1 and 2 (concurrent) serve consecutive to Counts 3 and 4 (concurrent) and therefore the accused to serve a total of 6 years imprisonment. Any time spent in custody to be deducted from the sentences. No further order

Representation:	Auga JL & Tabepuda P for the Crown Brook JR for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (2 (C) S 139 (1) (b)

Cases cited:

You, Moffat Koke were charged with one count of indecent act contrary to section139 (2) (c) of the Penal Code Cap 26 (Amendment) (Sexual Offences Act 2016 and 3 counts of sexual intercourse child under 15 years - contrary to section 139 (1) (b) of the Penal Code. Cap 26 (Amendment) (Sexual Offences Act 2016.

Accused pleaded guilty on all 4 charges and accordingly upon own plea was convicted on the charges.

The complainant Junita Nunuhie is from Sulutalapanic, in Ulawa, Makira Ulawa Province and was born on 25^th February 2005. At the time of the incidents she was around 13 years old.

On or between the dates from 1^st January 2018 to 27^th November 2018, the accused had indecently assaulted the Complainant and had sexual intercourse with her three occasions at Sulutalapanic village, in Ulawa, Makira Ulawa Province.

In relation to the charge of indecent act, the accused had sucked the breast of the complainant in the Complainant’s family home.

On the first occasion of sexual intercourse, it was on evening of the same day on the indecent act, the accused went and sexual intercourse with the Complainant at her at family kitchen house when her parents were away to the church.

The accused came to the house and sat on a bed, exposed his penis and then had sexual intercourse with the Complainant on a sitting position.

On the second occasion, the accused had sexual intercourse with the Complainant at family home in a standing position. The Complainant stood or was just stand and put her other leg on an elevated position to allow easy penetration by the accused. The accused pushed his penis in her vagina and had sexual intercourse with the Complainant that standing position.

On the third occasion, the accused had sexual intercourse at the again Complainant’s family home. She was alone when the accused came and met her. The Complainant stood up, put on of her leg to a timber on an elevated position, the accused penetrated his penis her vagina. I was also done in a standing position.

It was after this third occasion when the Complainant’s mother saw the accused and Complainant together at their family home that she was suspicious and confronted the Complainant. The Complainant confessed the affair to her mother then they report the matter to the Police.

The Complainant related to the accused through her father and in custom, accused should be her grandfather.

The accused often told the Complainant that if she had sexual intercourse with him, she would become clever and would pass her exams. The accused also told her that he would give money to her.

The maximum penalty for indecent act contrary to section139 (2) (c) of the Penal Code. Cap 26 (Amendment) (Sexual Offences Act 2016 is five years and for sexual intercourse child under 15 years - contrary to section 139 (1) (b) of the Penal Code. Cap 26 (Amendment) (Sexual Offences Act 2016 is 15 years.

Accused pleaded guilty to all charges and the first offender. I noted from the defence submission that you are remorse and have reconciled with your people. I think that should the right thing as you had done these to your close relatives. Such would to create harmony as you live with them at the same place or village.

The age disparity is 30 years with accused 43 years old and complainant 13 years old. An abuse of trust as the accused is the grandfather and the complainant is below the age of consent.

As I stated with other cases I had delivered the sentence today, these type of offences is an abuse and in particular to the children. These offences is becoming common in our villages, communities, islands and provinces in our beloved country Solomon Islands. On part of the court, any sentence to be imposed must be deterrent to the offender and generally to the public.

I noted that you are more than 50 years old and the delay of the case as raised by your lawyer but with the delay I would say that such delay is beyond our control or that there is no regular circuit by this to come to this province otherwise it relate to the system of the Government.

You have abused your responsibility as grandfather and relative to take care or look after your granddaughter but abused that role when had sexual intercourse with your granddaughter. The type of act with close relatives if done in the olden days of our ancestors be would be a big thing and even result to death.

We are glad for the churches and government with the laws. Now you that are charge with such offences there is a system with the courts to deal with it.

Upon taking into account the submissions of the counsels on the mitigation, aggravating factors, noting the case laws in this jurisdiction I satisfied the deserve the sentence 2 years for indecent act and 3 years each for the 3 counts on sexual intercourse with a child under 15 years.

Sentences on Counts 1 and 2 (concurrent) serve consecutive to Counts 3 and 4 (concurrent) and therefore the accused to serve a total of 6 years imprisonment.

High Court of Solomon Islands

R v Koke [2023] SBHC 32; HCSI-CRC 133 of 2021 (17 March 2023)