R v Giliposi [2024] SBHC 126; HCSI-CRC 155 of 2024 (30 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Giliposi
Citation:
Date of decision:	30 September 2024
Parties:	R v Peter Giliposi
Date of hearing:	24 September 2024
Court file number(s):	155 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Mr Giliposi, I convict you of the charge of persistent sexual abuse. I sentence you to 8 years imprisonment.
Representation:	Mr Beto and Ms Rehomora for the Crown Mr Houa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual offences) Act 2016 S 142 (2), S 138 (1) (a) (b), S 136 D (2) (d),
Cases cited:	Regina v Bonuga [2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case. 155 of 2024

REX

V

PETER GILIPOSI

Date of Hearing: 24 September 2024
Date of Verdict: 30 September 2024

Counsel: Mr Beto and Ms Rehomora for the Crown
Counsel: Mr Houa for the Defendant

VERDICT AND SENTENCE

1. Mr Peter Giliposi is from Banepe village, Reef Islands, Temotu Province. Paul Bonagi is the nephew of Peter Giliposi. As close family members from the same village, Peter and Paul had frequent family interactions. Sometimes in the month of March 2021, Peter took Paul on a fishing trip at night. Whilst paddling to their diving destination, Peter told Paul to pull back the foreskin of his penis, so that Peter could see inside Paul’s penis. In Solomon Pijin this is translated as “You skinim kam koko blo you mekem me lookim”. Peter threatened to hit Paul with a diving gear if he refused. Paul moved to the front of the canoe, jumped into the sea and swam towards Frank Peke’e, another diver, who accompanied them that night.
2. The second interaction happened in the month of April 2021. Paul was returning from playing soccer at Banepe village. Paul went past Peter’s house. Peter called Paul to come over to his house. Paul went to his uncle as requested. His uncle told him “I will fuck my wife and you will watch us”. Paul was scared and walked away immediately after hearing that.
3. On the third occasion, in April 2021, Paul accompanied his uncle Peter, his wife and children to their garden. At the garden, Peter asked Paul to go with him to climb green coconuts, about 200 metres away in the plantation. In the coconut plantation, Peter told Paul to suck his penis. Peter held Paul’s head and pushed his mouth closer to his erected penis. Peter pushed his erected penis in and out of Paul’s mouth. Paul was afraid but submitted to Peter’s sexual instructions because Peter was holding a bush knife in his hand. Peter only stopped when they heard noises from people coming to the planation.
4. The last interaction was on 21 April 2021 at around 11 pm at night. Paul was removing the fish intestines at their house, while his elder brother Isaac Laiwoi went to look for fire at the neighbouring houses. Peter approached his nephew and showed him his penis using the flashlight from a mobile phone. Peter told Paul that he will go and masturbate his penis at a nearby stone. When he is ready to release his sperm, he will call Paul to come and see his sperm. Paul walked away quickly because his elder brother Isaac arrived.
5. The four acts Paul complains about against his uncle are generally classified as indecent acts which are sexual in nature. Three of the acts are strictly not sexual intercourse, but they are nevertheless sexual in nature and are indecent acts contrary to community standards of decency. An act is decent in the community, if it is one of honesty, good manners and respect for other people or an act with a strong sense of high standard of honesty. The opposite is indecent act of dishonesty, bad manners and disrespect for other people.
6. As a result of Paul’s complaints, his uncle Peter stands charged for persistent sexual abuse of a child contrary to Section 142 (2), Section 138 (1) (a) (b) of the Penal Code (Amendment) (Sexual offences) Act 2016 (No 3 of 2016) - hereafter referred to as the “2016 Act”.
7. Incidents 1, 2 and 4 are indecent acts that are sexual in nature. Incident 3 is sexual intercourse caught by the new and pragmatic definition of sexual intercourse in the 2016 Act, in particular the sexual intercourse type called fellatio - (Section 136 D (2) (d)) of the 2016 Act).
8. Mr Giliposi entered an early guilty plea to the offence of persistent sexual abuse premised on summary of agreed facts filed on 24/09/2024. Hence trial on the 24/09/2024 was vacated. I convicted the accused accordingly. Now I have to determine the appropriate punishment.
9. Persistent sexual abuse is a very serious crime because it carries the maximum penalty of life imprisonment (Section 142 (2) of the 2016 Act). This is indeed a very serious crime that Parliament wants to condemn in the strongest term by prescribing a hefty punishment. However, the Court has power to impose a lesser sentence term.

Starting point sentence

10. According to Sinatau, Court of Appeal 2023, the starting point sentence for unlawful sexual intercourse with a child under 15 years is 8 years. Paul was 12 years old at the time of offending. I will set the undisputed starting point at 8 years.

Aggravating factors

11. Then I determine the following serious aggravating factors: -
    1. Position of trust breached - Peter is the uncle of Paul. And in all four sexual abuse occasions, Peter was socially interacting with his nephew when he committed sexual offence acts against him. As a nephew Paul expects his own uncle to respect him and to protect him against these kinds of indecent acts or offending. Peter breached his position of trust when he indecently and sexually abused his own nephew.
    2. Use of weapon - In the first incident Peter threatened Paul with a fishing gear. On the third occasion Peter had a knife with him when he pushed his penis into Paul’s mouth. Peter was terrified and submitted to Paul’s sexual instructions.
    3. Disparity of age – Peter was 46 years old at the time of offending. Paul his nephew complainant was only 12 years old. There was an age difference of 34 years. As an adult and close relative Peter was expected to protect Paul against these kinds of offending.
    4. Repetition of offending and pre-planning - Repetitive harm occasioned on the same person is a serious aggravation. Peter sexually abused his nephew on four occasions. This repetition shows the reckless attitude, behaviour and thoughts of a relative adult person like Peter. Peter had the opportunity to repent from the repetitive sexual harm occasioned on Paul. In terms of pre-planning, Peter was planning all these because he was looking out and thinking about an opportunity in which he would approach the victim. And those times are normal social interaction times such as fishing and gardening for close family members.
    5. Age of the victim – Complainant Paul was only 12 years old at the time of offending. Paul is a very small boy. The ages of 4 – 12 years old we can say Paul is only a child. The younger the victim the serious the aggravation effect. And it is not double accounting because the fact that the victim is a child brings the case in the starting point and actual age is an additional factor to consider.
    6. Vulnerability of the victim – Children are weak and vulnerable. They are exposed to the possibility of being attacked or harmed physically or emotionally. In this case Paul was harmed by his uncle physically and emotionally through his uncle’s indecent and sexual acts.
    7. Psychological harm and trauma – I will take judicial notice of the long-term devastating effect/impact despite the lack of professional and medical evidence (Regina v Bonuga [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17^th October 2014).
    8. Isolated locations – Three of the incidents took place at isolated locations two of which were occasioned under cover of darkness. Isolated locations meant the victim was denied of any access to help. For the offender it meant he could achieve his desires without interference.
12. For all of the above 9 serious aggravating factors combined, I will make a substantive increase by 9 more years (one year for each aggravating factor). Increase in sentence for serious aggravating factors should be in years and not merely in weeks and months (Bade, 2023, Court of Appeal). That will bring me to 17 years total head sentence before mitigation.

Mitigating factors

13. Then I will reduce that due to mitigating factors present in this case. The first is early guilty plea, which normally attracts a big reduction of 30 per cent because it saves Court’s precious time, it saves the victim from recounting his sexual ordeals in the witness box and it shows remorse and courage on the part of the offender to face up to the consequences of his actions. The 30 per cent reduction comes to 5.1 years, rounded down to 5 years.
14. The next mitigating factor is first time offender with no previous conviction. I will make a reduction of 2 years. I also consider cooperation with the police and Peter’s personal circumstances only minimally and deduct 2 years. Personal circumstances of the offender are matters I should not take serious consideration of in reducing the sentence. This is a case where the aggravating factors far outweigh the mitigating factors.
15. I will not consider old age as a mitigating factor available to Peter on the facts of this offending. Peter has not reached the minimum life expectancy for men in Solomon Islands (63 – 66 years according to Togovi). And so unlike in Lokohia and Togovi I will not use old age to reduce the sentence. In other words, Peter is not an elderly man and not eligible to deductions for old age. Peter is currently around 48 years old. He was 46 years at time of offending in the year 2021.

Sexual words complained of not materialised

16. In view of my finding in paragraph 5, I will with respect reject defence counsel’s submission that three of the offending were never carried out. That Paul did not actually see Peter have sex with his wife at their house. Paul did not actually expose his penis to Peter during the night diving trip. And Paul did not actually see Peter masturbate and release his sperm at the stone at night when Peter was taking out the fish intestines. Despite the acts complained of not materialising, the words Peter uttered to Paul on each occasion were indecent, sexual in nature or disrespectful and contrary to community standards of decency. No uncle in his right mind should ever utter such indecent and sexually sensitive, bad and disrespectful words to his nephew, a child who needs to be raised up in moral/ethical values.

Conclusion and Orders

17. I will impose a sentence term of 8 years on Peter. As I stand back and look at this final head sentence, it is an appropriate sentence term for an offence that carries a maximum penalty of life imprisonment. It is an appropriate sentence for a crime that was prevalent pre 2016 mischief (domestic sexual abuse), which made it necessary to make the reforms brought about in the 2016 Act. The 2016 Act was enacted to protect young girls/boys and women from sexual abuse, most of which happen in the domestic circle.
18. Parliament and Court must work together to curtail an increasing crime in the domestic circle. Imposing a lengthy custodial sentence will bring deterrence to the offender and like-minded people out in the community. Mr Giliposi, I convict you of the charge of persistent sexual abuse. I sentence you to 8 years imprisonment.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE