R v Mela [2023] SBHC 51; HCSI-CRC 294 of 2017 (30 June 2023)

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Case name:	R v Mela

Citation:

Date of decision:	30 June 2023

Parties:	Rex v John Mela

Date of hearing:

Court file number(s):	294 of 2017

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	The Defendant John Mela is sentence: 1. Count 1 – 5 years imprisonment, 2. Count 2-6 months imprisonment, 3. Count 2 to be served concurrent to count 1; 4. Any time in custody to be deducted from this sentence 5. No further orders

Representation:	Zoze JW and P Tabepuda (Waisanau) for the Crown Houa D for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b)

Cases cited:	Pana v Regina [2013] SBCA 19

Accused John Mela pleaded guilty and convicted on one count of sexual offence of sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal Code (Sexual Offences) Act 2016 and one count of escaping from lawful custody contrary to section 125 of the Penal Code.

The accused John Mela was born in 1990 and from Venga village, Santa Cruz Temotu Province.

Complainant Melvin Ibola is also from Venga village Santa Cruz and was born on 2^nd February 2002 and attends Grade 5 at Venga Primary School.

On the early hours in the morning of Sunday 23^rd October 2016, the complainant and her sister were sleeping at the house when they were awakened by a noise from nearby house. The sisters wanted to relieve themselves at the seaside and so they went down to the seaside.

On the way they were met the accused and he appeared drunk and under the influence of alcohol.

On the way back to the house after the sisters relieved themselves, they met the accused again on the road. Accused talked to the complainant and asked her for sexual intercourse.

Accused held a bicycle and he put it at the wall of Kenneth’s house and then led the complainant to the seaside. They went and sat under a Paine tree.

At the seaside, accused kissed the complainant, held the breast, undressed her, and pushed his finger into the complainant’s vagina while he sucked her breast. He laid the complainant on the white gravel and pushed his penis into the complainant’s vagina and he had sexual intercourse with her.

After the accused ejaculated both got up, dressed and came back to the village when the day broke and the people woke up from sleep. Complainant then went back to the house for a sleep.

The accused was arrested by the Lata Police for the sexual intercourse offence under section 139 (1) (b) of the Penal Code (Sexual Offences) Act 2016 and he was remanded in custody for 14 days at the Lata Correctional Service Centre.

On the night of 28^th December 2016 between 10 pm – 11pm the accused was placed with other accuses at the Police Station. Police Constable forgot to lock the gate and the accused asked the constable if he may go and refill the water in the bottle. He went to refill the water and then escaped from the Lata Police Station and went to his home.

From that time of the incident, the Police attempted to capture the accused until he was arrested again on 17^th January 2017.

The maximum penalties the offences under section 139 (1) (b) of the Penal Code (Sexual Offences) Act 2016 is liable to life imprisonment and for escaping from lawful custody it is misdemeanour the general punishment under section 41 of the Penal code is imprisonment not exceeding two years or with fine or both.

What should now be clear from the decisions of this court and Court of Appeal and that the starting point for the sentence of the offence under the Penal Code (Sexual Offences) Act 2016 is 5 years unless with any unique or personal circumstances of the accused.

On the mitigating factors, the accused has pleaded guilty and he is the first offender. Defence counsel submits that his client to be given consideration on his plea of guilty and as earlier guilty and remorse.

I noted that but his early plea is only for the amended information. The first plea on the charge was on 6^th October 2017 and he entered plea of not guilty on count 1 which had not been amended on the information.

The plea of guilty now on two counts cannot be taken into account as early plea and remorse but I will do that he is the first offender.

On the aggravating factors, it is only on the disparity of age of the defendant and complainant.

Further, the Defence counsel raised the delay of about 7 years as unfair to the accused and to be taken into account in the consideration of sentence. With the delay, I noted the concern of the accused.

For this type of offences under the Penal Code, I wish to stress the concern by this Court and Court of Appeal on the purpose of the Penal Code (Sexual Offences) Act 2016 and increase of penalties. The Penal Code was amended in 2016 because the increase of such offences and the need to impose deterrence sentences. This concern is stated in the Court of Appeal case Pana v Regina^[1] .

With these the court are oblige to impose tough sentence that would deter the defendant and deterrence to the public.

I take into account in this sentence that the defendant is the first offender and credit to him. The complainant was a child and defendant was a person of about 27 years.

Taking into account and consider of the mitigating and aggravating circumstances and the delay, the appropriate sentences for the defendant on Count I is 5 years imprisonment and for Count 2 - escape from lawful custody is 6 months imprisonment.

High Court of Solomon Islands

R v Mela [2023] SBHC 51; HCSI-CRC 294 of 2017 (30 June 2023)