R v Sipokolo [2024] SBHC 117; HCSI-CRC 128 of 2024 (20 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sipokolo
Citation:
Date of decision:	20 September 2024
Parties:	Rex v Gabriel Sipokolo
Date of hearing:	30 August 2024
Court file number(s):	128 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I will sentence Mr Sipokolo to 2 years imprisonment. This term starts to run from 18/09/2024 because Sipokolo was remanded since 18/09/2023. Order accordingly.
Representation:	Tamaika for the Crown Rusi and Fiuga for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 139 (1) (a) and (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 128 of 2024

REX

V

GABRIEL SIPOKOLO

Date of Hearing: 30 August 2024
Date of Sentence: 20 September 2024

Counsel: Tamaika for the Crown
Counsel: Rusi and Fiuga for the Defendant

Sentence

1. Mr Sipokolo, I dismissed the two original serious charges of rape made against you in the main verdict delivered on the 6/09/2024. As a substitute I convicted you of two lesser offences proved from the evidence produced in respect of the two original dismissed charges. Now I have to determine the appropriate penalty for the two lesser offences.
2. For the first alternate lesser offence contrary to Section 139 (1) (b) of the 2016 Act^[1] (sexual intercourse or indecent act) with a child between 13 years to 15 years, as in your case, the maximum penalty is 15 years imprisonment.
3. For the second alternate lesser offence contrary to Section 140 (1) (a) and (b) of the 2016 Act (sexual intercourse or indecent act) with a child who is at least 15 years but under 18 years of age and the accused is in a position of trust to the child, as in your case, the maximum penalty is 15 years.
4. Both lesser alternate offences are serious in terms of the primary objective of the legislative reform made in the 2016 Act to protect women and girls from sexual abuse and exploitation.

Starting point sentence for the two alternate lesser offences

5. According to Sinatau, Court of Appeal 2023 the appropriate starting point sentence for the first offence, which is unlawful sexual intercourse, with a child under 15 years is 8 years. I will therefore put the start point sentence for the first and second alternate lesser offences at 8 years – both being unlawful sexual intercourse with a child under 15 years and/or with a child at least 15 years but under 18 years or generally with a child under the age of consent.

Aggravating factors

6. Then I determine the following serious aggravating factors: -
   • (i) Position of trust breached – Defendant is the biological brother of the victim’s mother. Defendant is the uncle of the victim or the victim is his niece. Defendant breached that position of trust when he committed sexual intercourse or indecent act on his own niece. This is a serious breach. However, I have to understand this in the context of their marriage relationship.
   • (ii) Repetitive offending – Repetitive offending is a serious factor to aggravate the sentence. However, I need to consider this factor in the context of this case. In the main verdict, I found that the defendant and the victim were living together in a marriage relationship.
   • (iii) Psychological harm – I found in the main verdict that the accused and the victim were living together in a marriage relationship. I found that the accused and the victim got separated in August of 2023 due to some disagreements. This is all part of a marriage relationship. Hence, I cannot say with absolute certainty that the victim suffered from psychological and emotional harm.
   • (iv) Age disparity – Accused was above 40 years. Victim was only 14 years. Age difference of more than 26 years. Defendant was expected as an adult and close male relative to protect the victim from this kind of offending.
   • (v) Home – Defendant’s home is a place where his niece should find security and protection from sexual abuse. Instead defendant turned that home into a crime scene. However, I have to consider that there is a marriage relationship in here.
7. For all of the above 5 serious aggravating factors combined I will increase the starting point sentence to 10 years. I do not make substantial increases because in the main verdict, I found that the complainant and the accused were living together in a marriage relationship. The accused however violated the 2016 Act because he was living in a marriage relationship and having sexual intercourse with a child under the age of consent (15 years or 18 years).

Mitigating factors

8. Then I will make deductions in respect of mitigating factors. For first time offender with no previous conviction I will deduct 4 years. For compensation, cooperation with the police and being in a marriage relationship I will deduct 4 years.

Sentence to be made concurrent

9. The final head sentence for the first lesser alternate offence is therefore 2 years. For the second lesser alternate offence, I will add 1 more year because offending on the same person a second time is more harmful than the first. For the second lesser alternate offence, I impose 3 years imprisonment sentence. I will make the sentence for the first offence to run concurrent with the sentence for the second offence because both offences arose out of one criminal enterprise (marriage relationship). The final head sentence to serve concurrently is 3 years. Then I will deduct 1 year for time spent in pre-trial custody. The end result is a 2 years custodial sentence term.

Conclusion and Orders

10. As I stand back and look at the 3 years custodial sentence, it is appropriate to the circumstances of this offending. I found in the main verdict that the complainant and the accused were married in custom and were living together as wife and husband. They got married in October 2021 and separated only in August 2023 due to some disagreements. That marriage however violated the 2016 Act because the complainant was a child under the age of consent.
11. To act as deterrence to the accused and people out there who may overlook the legal fact that marrying a child under 15 years or 18 years is a crime, a custodial sentence is warranted, even though the sentence may appear very lenient. Another factor explaining the leniency is Mr Sipokolo was acquitted of the two original serious charges of rape and instead convicted of two lesser alternate offences proved from the evidence produced for the two offences originally charged and dismissed. I will sentence Mr Sipokolo to 2 years imprisonment. This term starts to run from 18/09/2024 because Sipokolo was remanded since 18/09/2023. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] 2016 Act refers to the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No 3 of 2016).