R v Sipokolo [2024] SBHC 115; HCSI-CRC 128 of 2024 (24 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sipokolo
Citation:
Date of decision:	24 August 2024
Parties:	Rex v Gabriel Sipokolo
Date of hearing:	14 & 15 August 2024 (Trial)
Court file number(s):	128 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	i The accused is acquitted of the two counts of rape. ii The accused is convicted on two lesser offences of sexual intercourse with a child under 15 and 18 years. iii The accused will be kept in custody for hearing of sentencing submissions at 3pm on 30th August 2024.
Representation:	Tamaika for the Crown Rusi and Fiuga for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual offences) Act 2016 S 139 (1) (b), S 140 (1) (a) and (b) Criminal Procedure Code [cap 7] S 159 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 128 of 2024

REX

V

GABRIEL SIPOKOLO

Date of Hearing: 14 & 15 August 2024 (Trial)
Date of Judgment: 24 August 2024

Counsel; Tamaika for the Crown.
Counsel; Rusi and Fiuga for the Defendant.

Judgment

1. Mr Gabriel Sipokolo (“GS”) comes from Subi village, Northwest Choiseul, Choiseul Province. Gabriel Sipokolo has 5 children - two sons and three daughters. Gabriel Sipokolo’s wife died in the year 2015. Gabriel Sipokolo has a sister named Georgian Daevavini. Daevavini has 8 children - 4 sons and 4 daughters from her previous marriage to a man from Guadalcanal. One of her daughters is Mirriam Maqatavave (“MM”).
2. From the years 2021 (October) - 2023 (August), MM lived with her uncle GS in his house at Subi village. Whilst staying with her uncle GS, MM complains that GS raped her on two occasions between the periods 1/01/2021 to 31/12/ 2021 and 1/01/2022 to 31/12/2022.
3. Mr GS was charged for two counts of rape on MM - one in the year 2021 and the other in the year 2022. Mr GS was arraigned on the 14/8/2024. He pleaded not guilty to the two counts of rape. Trial proceeded at Gizo from 14/8/2024 to 15/8/2024.
4. The first incident in Count 1 occurred on an unknown date between 1/01/2021 and 31/12/2021, at Subi village whereby GS had sexual intercourse with MM by penetrating her vagina with his penis. The second incident in Count 2 occurred on an unknown date between 1/01/2022 and 31/01/2022, at Subi village whereby GS had sexual intercourse with MM by penetrating her vagina with his penis.
5. The two common agreed issues I must determine for Counts 1 and 2 are: -
   • 5.1 Whether the sexual intercourse was without MM’s consent?
   • 5.2 Whether GS knew MM did not consent to have sexual intercourse, yet he was reckless as to the lack of consent?

Count 1 - Rape

6. For Count 1, MM complains that GS raped her at night on an unknown date between 1^st January 2021 and 31^st December 2021. According to MM, she was sleeping with GS’s other daughters on the night of offending, in one corner of an open space room in GS’s house. GS returned from keeping the parish store at Subi at night around 2:00 am and was drunk. GS came and ordered MM to have sex with him.
7. MM said GS induced her into having sex by giving her a tin of luncheon meat and biscuit. And in return, GS asked to have sex with her. In MM’s words GS “ordered” her to have sex with him. GS called MM out to the veranda. He turned the headlight on. He put his can of beer on the table outside. He was holding a knife in his hand. Knife was 30 cm long. And GS said he will beat MM to death, if she refused his request. MM got frightened and followed GS’s instruction to have sex with him outside at the veranda.
8. Submitting out of fear, MM lifted up her skirt. GS dropped the small knife from his hand and took off his own shirt. MM struggled by refusing to open up her two legs. GS overpowered her, widened her two legs and had sexual intercourse with her. GS ejaculated outside her vagina. After having sex, GS put on his clothes. MM also put on her clothes. And MM went back to sleep with her first cousin sisters in the open space room. GS also came and slept close to their legs. They were sleeping at one end of an open space room. It was a small house with 8 pieces of roofing iron on one side. It has one room (GS’s room), one open space room and a veranda outside.
9. GS denied having sexual intercourse with MM in the night as alleged. GS said that the time he gave a luncheon meat and biscuit to MM was before MM came to stay with him at his house. That evening he was returning from working on the priest’s house at Subi parish. GS is a carpenter. GS came past MM, at her granny’s house and saw MM cutting a swamp taro. GS asked MM why she was cutting the swamp taro, saying it was a pig’s feed. MM told GS that, her granny got angry with her and refused to give her food. GS gave her luncheon meat and biscuit. That was on the 8^th August 2021.
10. GS vividly recalled the date because it was his birthday. He bought some goods for him and his children to celebrate his birthday. According to GS he did not have sex with MM in the manner described in the evidence produced regarding the incident in Count 1. Instead GS said MM was his wife and he had sex with her at will, well after the 8^th August 2021, when MM moved over to his house and wanted to marry him.
11. GS said he got married to MM in October 2021. GS recounted how he came to be in love and got married to his own niece (MM) as follows: -
    1. It was on the 14^th October 2021; GS went to do work on the parish priest’s house at Subi. Priest gave him six cans of beer because he worked very hard. He drank the beers and returned to his house having a rest at the veranda. He was tired. It was at night and his children were already in bed. MM came to the veranda where GS was resting and touched the front of his private part. GS slapped her hand away. GS asked her why she was doing that. She just laughed and ran away. GS went back to rest/sleep again. MM came back the second time and again playfully touched the front of his private part. One of GS’s niece Jemimah saw what MM was doing to GS and run away to MM’s big sister’s house close to GS’s house giggling.
    2. The third time MM came back to play GS again on his private part. This time MM put her hand right inside GS’s trousers. GS slapped her hand. GS asked what she wanted to do. MM replied “Uncle I want you. Every time I see you come past my granny’s house; I always tell myself uncle is a brick now”. And MM asked GS for them to have a sexual relationship. Everything started that night according to GS. MM brought her belongings and moved over to stay with GS and his children at GS’s house. That first night GS was drunk so they did not have sex.
    3. Second night after MM moved in, they had sex. This was around 15^th October 2021. And they lived together as husband and wife since. They got separated due to some disagreements in August 2023.
    4. GS’s sisters in the village heard what happened. GS gave them money in custom. GS told them that MM is his wife. GS gave his sister Renavave $200.00 and $300.00 to MM’s mother Daevavini (his other sister). This was meant in custom to stop his sisters’ shame and to announce their marriage.
    5. During the tenure of their relationship, from October 2021 to August 2023, they had two children together. When I asked GS, he denied they were his children. But when I asked MM, she said the two children belong to GS. There is no dispute here about the two children so I will leave it at that.
    6. GS however said he was happy to support the two children because they were innocent. When giving evidence in chief, MM said GS treated her as his wife but did not elaborate. I asked MM if her mother ever called or contacted her from Noro. She answered “No”. I asked if any of her relatives in Subi village came to settle the problem. She said “No”. From the entire evidence, I was able to understand what MM meant by GS treating her as his wife. It meant they got married and lived together at Subi village as wife and husband. That meant they slept together, they had sex, they love each other, they eat together, they fight each other. They take care of each other. They looked after and cared for the two children. They have good and bad times together. These are the practical aspects and realities of marriage life.
    7. At the close of MM’s evidence in re-examination, I formed the conclusion that GS and MM were a married couple. But then I was still wondering, why there were rape allegations inside their marriage relationship. So, I put to MM that they were married. But she was complaining about the two incidents of rape alleged in Counts 1 and 2 only. MM’s answer was in the negative. MM said the whole time she was only staying with GS as his wife out of fear due to the threatening manner GS treated her.
12. Taking the whole of the evidence, I find that GS and MM were in a marriage relationship. It is agreed that GS and MM had sexual intercourse as alleged in Counts 1 and 2 (repeat paragraph 4). And MM was not complaining about the two incidents of rape only. She was complaining about an abusive and violent marriage relationship. I find that MM’s marriage life with GS was characterised by fear due to violence, abuse and threat.
13. However I cannot be sure that the incident of sexual abuse alleged in Count 1 is rape on the criminal standard. It could probably be a domestic relationship characterised by domestic violence and abuse. I find that the sexual intercourse alleged as rape in Count 1 occurred with MM’s consent because GS and MM were in a marriage relationship (de-facto-marriage) in October 2021. Therefore, knowledge about lack of consent or recklessness as to the lack of consent on GS’s part was irrelevant. Accordingly, I will dismiss the rape charge in Count 1.

Count 2 - Rape

14. Count 2, MM complains that GS raped her during a time between 1^st January 2022 to 31^st December 2022. MM did not give clear evidence about the second incident in Count 2. She just continues to repeat in her evidence that the second incident was the same as the first incident of rape, in terms of her reluctance, use of small knife, threat and submission to have sex out of fear at 2 am at night.
15. I made the finding in Count 1 that GS and MM were in a de-facto marriage relationship characterised by violence and abuse. But I remain doubtful that it was rape (repeat and reaffirm paragraphs 12 and 13). For the same reasons I dismissed Count 1, I will also dismiss Count 2 because I find that GS and MM were in a de-facto marriage relationship and MM’s evidence was that she was not complaining about the 2 incidents of rape in Counts 1 and 2 only (repeat paragraph 11 (vii)).
16. Ultimately, I have a lot of doubts about the prosecution’s case. If there is a slight doubt in my findings then I must give the benefit of doubt to the accused. Accordingly, I will acquit GS of the two counts of rape. That however is not the end of the matter. In considering the evidence the prosecution produced, it is imminent that GS can be convicted of two alternative lesser offences. I will discuss this below.

Lesser offence proved is included in the offence charged

17. Prosecution submitted that if the Crown’s case on the two counts of rape against GS are not proved, Court can still convict GS of a lesser offence even if GS was not initially charged with such lesser offence. Court can do this invoking power permitted under Section 159 (2) of the Criminal Procedure Code Act (Cap 7) – “the CPC”. Section 159 (2) of the CPC relevantly states: -
    • “When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence, although he was not charged with it.”
18. Prosecution also supplied two case law authorities in support of its submission for a lesser offence conviction on facts proven. I took time to consider the two cases^[1], one being a Court of Appeal binding decision. It is abundantly clear that I can convict GS of a lesser offence on proven facts, even though he was not initially charged for the lesser offence. With respect, defence run a weak opposing argument saying that Section 159 (2) of the CPC does not apply to the Penal Code (Amendment) (Sexual offences) Act (2016), (No 3 of 2016). Defence submit that the CPC does not apply to offences under the 2016 Amendment Act because the CPC was not amended to align with the 2016 Amendment Act.
19. Defence submission was an argument in law that lacks authoritative basis in judicial precedent. I will ignore defence argument. The CPC apply to all criminal trials, irrespective of offences tried being under the Penal Code Act (Cap 26) or the 2016 Amendment Act.
20. So, what is the alternative lesser offence that GS should be convicted of, on the proven facts? Another way to ask is what offence proved is included in the offence charged (Section 159 (2) of CPC)?
21. The two alternate lesser offences that GS should be convicted of are: - (i) sexual intercourse with a child under 15 years as the alternative lesser offence for the rape charge in Count 1 contrary to Section 139 (1) (b) of the 2016 Amendment Act and (ii) sexual intercourse with a child who is at least 15 years but under 18 years as the alternative lesser offence for the rape charge in Count 2 contrary to Section 140 (1) (a) and (b) of the 2016 Amendment Act.

Lesser alternate offence under Section 139 (1) (b) of the 2016 Amendment Act

22. For Count 1 the prosecution’s evidence proved the following facts: -
    1. GS was the uncle of MM (position of trust).
    2. GS had sexual intercourse with MM in a romantic de-facto marriage relationship in the year 2021.
    3. MM was 14 years at the time of first offending in the year 2021 having been born in the year 2006 (see agreed fact 2 of PTC filed 24/07/2024).
23. For the alternate lesser offence of sexual intercourse with a child under 15 years contrary to Section 139 1 (b) of the 2016 Amendment Act, the elements of the offence are - person, had sexual intercourse, with another person, who is under 15 years. In terms of the proven facts summarised in the preceding paragraph 22, I am satisfied beyond reasonable doubt and will find GS guilty of sexual intercourse with MM, a child under 15 years in the year 2021. Consent is not an issue in this kind of offending. Men ought to know that girls under 15 years are not fit and matured females to be having sex with (in the eyes of the law).

Lesser alternate offence under Section 140 (1) (a) and (b) of the 2016 Amendment Act

24. For Count 2, the prosecution’s evidence proved the following facts: -
    1. GS was the uncle of MM (position of trust).
    2. GS had sexual intercourse with MM in a romantic de-facto marriage relationship in the year 2022.
    3. MM was 15 years old at time of second offending having been born in the year 2006 (agreed fact 2 of PTC filed 24/07/2024).
25. For the alternate lesser offence of sexual intercourse with a child at least 15 years but under 18 years contrary to Section 140 (1) (a) and (b) of the 2016 Amendment Act, the elements of the offence are – person in position of trust, had sexual intercourse with, another person, who is at least 15 years but under the age of 18 years. In terms of the proven facts as summarised in the preceding paragraph 24, I am satisfied beyond reasonable doubt and will find GS guilty of sexual intercourse with MM, a child who was at least 15 years but under 18 years in the year 2022. Consent is not an issue in this kind of offending. Men ought to know that girls at least 15 years but under 18 years are not fit and matured females to be having sex with (in the eyes of the law).

Conclusion and Orders

26. Accordingly, the orders of the Court are: -
    1. The accused is acquitted of the two counts of rape.
    2. The accused is convicted on two lesser offences of sexual intercourse with a child under 15 and 18 years.
    3. The accused will be kept in custody for hearing of sentencing submissions at 3pm on 30^th August 2024.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Regina v Alu [2018] SBCA 3; SICOA-CRAC 32 of 2017 (11 May 2018) and R-v- Pita (2022) SBHC 65; HCSI-CRC 375 of 2021 (6 July 2022).