R v Mahau [2024] SBHC 25; HCSI-CRC 631 of 2021 (1 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Mahau
Citation:
Date of decision:	1 March 2024
Parties:	Rex v Andrew Sioha Mahau
Date of hearing:	14 November 2023
Court file number(s):	631 of 2021
Jurisdiction:	criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, I sentence the defendant to 8 years imprisonment, effective from this 1st day of March 2024. Any entitlement as to pre-trial custody or pre-sentence custody will have to be determined by the relevant correctional facility for further deductions.
Representation:	Mr Auga for the Crown Mr Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b), S 139 (1) (a)
Cases cited:	R v Sinatau [2023] SBCA 38, R v Ba’a [2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 631 of 2021

REX

V

ANDREW SIOHA MAHAU

Date of Hearing: 14 November 2023
Date of Sentence: 1 March 2024

Mr Auga for the Crown
Mr brook for the Defendant

SENTENCE

1. Court convicted you on a charge of sexual intercourse with a child under 15 years contrary to Section 139 (1) (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016 – “the 2016 Act”. On the 9^th March 2018, you had unlawful sexual intercourse (forceful penial penetration) with the complainant – See paragraphs 7 and 22 of the verdict delivered on 20/10/2023. You could have been charged for rape, a more serious crime.
2. The offence you are convicted of carries a maximum punishment of 15 years imprisonment (Section 139 (1) (b) of the 2016 Act). Court has power to impose a lesser sentence term. For an offence under Section 139 (1) (a) of the 2016 Act, by comparison, it carries a life imprisonment sentence, as the maximum punishment.
3. Court of Appeal recently held in R v Sinatau [2023] that, in all cases involving unlawful sexual intercourse with a child under 15, where the victim is below the consent age (as in this case), the starting point sentencing tariff will be 8 years. I will put the start point sentence at 8 years.
4. Then I will uplift the start point sentence due to the presence of serious aggravating features present in your offending. The aggravating features to justify the uplift are:-
   • (i) Trauma and psychological effects on the victim – Court must always take judicial notice of the long-term impact of sexual abuse, on the child victim despite lack of medical evidence (R v Bonuga [2014] SBCA 22).
   • (ii) Physical harm and violence (See paragraph 7 (x) of verdict) – victim felt immense pain in her vagina because you secured sexual penetration with her by force. She could not walk and had to stay in the house for 2 days. You sexually secured sexual penetration through force (See paragraph 7 of the verdict). You were physically stronger than the victim being a female child under 15 years. .
   • (iii) Position of trust breached – you were a very close relative of the victim (See paragraphs 19 and 21 of verdict). As a close relative Mr Mahau should protect the victim’s sexual intactness and not exploit it for his own sexual gratification.
   • (iv) Disparity of age – you were 24 years old. Victim was 14 years and 8 months. Age difference of about 10 years. As an adult and relative the victim should find solace and security in your presence. Instead you abused that position of trust, to satisfy your sexual desires. As an adult person there is an expectation of being responsible and accountable in protecting young girls from this kind of offending (R v Ramaia [2021] SBHC 96). This is more so where you are a blood relative of the victim.
   • (v) Pre-planning – defendant was hiding at a secret location next to the bush toilet. And he suddenly appeared from the bush and grabbed the victim, kicked her to fall to the ground and hit her thighs and shut her mouth. This occurred when victim went to the toilet. Not only that, defendant also took his wife and children to the other side of Makira Island far away. And being alone without his family, he planned to have sex with the victim. There was a lot of pre-planning involved here.
   • (vi) Victim placed in a vulnerable situation – victim’s parents went away for 2 weeks from their house at the time of offending. Victim stayed alone with her grandmother and three other siblings (See paragraphs 5 and 9 of verdict). Defendant knew and took advantage of this because his house is not far from victim’s house (paragraph 6 of verdict). The defendant took advantage of the victim’s vulnerable situation to inflict sexual abuse on the victim by force and had sexual penetration/intercourse with her.
5. For all the above 6 serious aggravating factors combined, I will do an uplift to 12 years. But then there are mitigating factors to reduce the sentence. Compensation as a worthy custom must be considered in mitigation. I will consider it and allow 2 years reduction for it. On delay, defence counsel submitted it was 5 years delay since 2018. But this is only a 2021 file as indicated in the criminal reference numbering. There is however some delay since 2021. I will reduce another 2 years for that (breach of constitutional right to fair trial within a reasonable time). The other mitigating factors like defendant’s personal circumstances (newly married with a pregnant wife and looking after a child from first marriage), I should not take serious heed of (R v Wilfred Ba’ai [2014] SBCA 22). Consensual sex and absence of force are not valid mitigating factors, in terms of the evidence at trial, as the defence counsel submitted. The end result is a head sentence of 8 years. This will have a deterrent effect on a crime that is prevalent since the 2016 Act.
6. Accordingly, I sentence the defendant to 8 years imprisonment, effective from this 1^st day of March 2024. Any entitlement as to pre-trial custody or pre-sentence custody will have to be determined by the relevant correctional facility for further deductions.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE