R v Falosi [2024] SBHC 40; HCSI-CRC 158 of 2019 (18 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Falosi
Citation:
Date of decision:	18 April 2024
Parties:	Rex v Taurota Falosi,
Date of hearing:	18 April 2024
Court file number(s):	158 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I will impose is 6 years imprisonment. Any entitlement as to pre-trial custody will be deducted further for each of the 3 defendants, to be ascertained by the relevant Correctional facility. Order accordingly.
Representation:	Mr Zoze for the Crown Mr Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 [cap 26] S 139 (1) (b), S 136 F (1)
Cases cited:	R v Sinatau [2023] SBCA 38,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 158 of 2019

REX

V

TAUROTA FALOSI, TESIKA TAKARO, TOIA TOSI

Date of Hearing: 18 April 2024
Date of Sentence: 18 April 2024

Mr Zoze for the Crown
Mr Kwalai for the Defendants

Keniapisia; PJ

Sentence

Introduction, background and admitted facts

1. The 3 accused were jointly charged by further amended information filed on 8/4/2024, for 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 – here after referred to as “the 2016 Act”. On their respective indictments, the statement of offence and particulars of offence are identical, if not the same. The admitted facts however differ in respect of each accused.
2. By a former further amended information filed on 25/10/2023, the 3 accused were previously charged with rape contrary to Section 136F (1) of the 2016 Act. That information was however vacated, when a new further amended information was filed on 8/4/2024. This came after I conducted a “voir dire hearing” and admitted the 3 accused’s “record of interview” on the 2/04/2024. Then a negotiation followed suit between the Crown and defence Counsel, resulting in the latest further amended information filed on 8/04/2024. Then a statement of admitted facts was filed on 12/04/2024. Defendants took their plea on 18/04/2024 and entered a guilty plea premised on the said agreed facts. I will adopt the admitted facts in full as follows: -
   • (i) The victim is Kyleen Kelivania of Babanakira village, Weather Coast South Guadalcanal, Guadalcanal Province.
   • (ii) The accused in this matter are Taurota Falosi, Tesika Takaro and Toia Tosi. They are from Wagina, Choiseul Province.
   • (iii) The victim was born on 22^nd July 2005 at the National Referral Hospital, Honiara.
   • (iv) At the time of the offending, the victim was between 13 years and 2 weeks old.
   • (v) The defendant Tesika Takaro was 22 years old in July 2018.
   • (vi) The accused Taurota Falosi was 19 years old in July 2018.
   • (vii) The accused Toia Tosi was 18 years old in July 2018.
   • (viii) The incidents involving sexual intercourse with the victim occurred in July 2018 at GPPOL 3, East Guadalcanal, Guadalcanal Province.

Facts about accused Toia Tosi.

(ix) On an unknown date between the 1^st of July 2018 and the 31^st of July 2018, the defendant Toia Tosi went to Tesika Takaro’s house. He saw three girls, namely, Kolapa, Nester and Mary there.
(x) Whilst they were sitting outside the house, he asked one of the girls, Kolapa to be his girlfriend. Kolapa replied to him that she had a boyfriend, but she said she had a sister.
(xi) The defendant asked Kolapa if she could call her for him. So Kolapa told Nester to come and Nester called the victim to come to the house.
(xii) The victim arrived and the defendant and her began talking.
(xiii) Nester then left. Defendant Toia Tosi then asked the victim to have sex with him.
(xiv) The defendant asked her again and she followed the defendant into Takaro’s room. The defendant and the victim lay down on the mattress and had sexual intercourse by way of penile penetration.
(xv) After the defendant ejaculated, he and the victim came out and told stories.

Facts about accused Taurota Falosi

(xvi) On an unknown date between the 1^st of July and the 31^st of July 2018, the defendant Taurota Falosi went to Takaro’s house. At that time others present included the accused Tosi, Takaro and another person namely Simon were there. It was in the evening.
(xvii) Whilst they were sitting there some girls came. The girls’ names are Nester, Mary, Kolapa and the victim Kyleen. All of them were sitting inside the veranda of the house.
(xviii) At that time the defendant Taurota Falosi told Nester, Takaro’s girlfriend to ask Kyleen to have sex.
(xix) So the defendant and the victim went inside Takaro’s room. Both of them lay down on the mattress and had sexual intercourse by way of penile penetration. After the defendant ejaculated, he and the victim came out.
(xx) All of the others stayed outside the veranda at that time.

Facts about the accused Tesika Takaro

(xxi) On an unknown date between the 1^st of July and the 31^st of July 2018 some girls came to the defendant’s house.
(xxii) Defendant’s house is where they come to smoke and chew betel-nut.
(xxiii) One of the defendant’s wantok Simon had a relationship with one of the girls. So the other girls would follow this girl to his house.
(xxiv) The victim at that time would come to his house to smoke and chew betel-nut with the other girls.
(xxv) On the night of the incident, the group of girls came to his house together with the complainant.
(xxvi) The defendant asked the complainant to have sexual intercourse with him.
(xxvii) The defendant then led the victim and both went into his room while the others stayed outside on the veranda.
(xxviii) After the defendant had sexual intercourse with her both came out and told stories with the others.

Maximum penalty and starting point sentence

3. The maximum statutory punishment for this offending is 15 years imprisonment – Section 139 (1) (b) of the 2016 Act. This shows parliament’s disapproval with sexual abuse of children under 15 years. However, the Court has power to impose a lesser sentence term. The 2016 Act was enacted to protect women and girls from sexual abuse. It is sexual abuse to have sex with girls under 15 years. Men must be careful about the age of females. They should not look at the body and say the girl is an adult.
4. According to Court of Appeal guidelines for sentencing of sexual offences under the 2016 Act, the starting point sentence will be 8 years. This is according to the case of Sinatau (2023, Court of Appeal), because this offending involves unlawful sexual intercourse with a child under 15 years or under the consenting age or an offence against Section 139 of the 2016 Act. Defence conceded in written submission. I will start at 8 years.

Aggravating factors

5. Then I will increase the start point sentence upward, due to the presence of serious aggravating features. The aggravating factors are: -
   • (i) Age disparity – The 3 accused were 18, 19 and 22 years at time of offending. The victim was 13 years. Age difference of 5, 6 and 9 years. Men are expected to be responsible and accountable in protecting young girls from sexual abuse. We are a communal society.
   • (ii) Age of the victim – Victim is below the age of consent and under 15 years. At 13 years the girl is considered very young and should not be sexually polluted or defiled with any form of sexual activities. Here I noted that the 3 accused were after the complainant for sex. They sent words to her using other girls. They asked her to come over to the house where sexual intercourse took place. Finally, they asked her to have sex and they took her to the room inside the house to have penial sexual intercourse with her. These happened at different times for each of the 3 defendants, as per the admitted facts above.
   • (iii) Psychological harm – Court should take judicial notice of the long-term devastating effect of sexual intercourse on young girls, despite lack of professional evidence (Bonuga 2014; Court of Appeal). For young girls this is true because they will live to regret what happened to them before marriage, knowing that sex is reserved for marriage.
   • (iv) Physical harm – The very act of sexual intercourse with a child under 15 years whether rape or unlawful sexual intercourse is physical violation of the victim and physical harm is inherent in it. Court does not have to look for whether there was use of weapon and whether the victim suffered physical injuries. Penial sexual penetration of the young girl’s vagina is physical harm itself in addition to sexual defilement of the young girl’s sexual purity. This is why the 2016 Act prohibits unlawful sexual intercourse with girls under 15 years.
6. For all of the above 4 serious aggravating factors combined, I will inflate the start point sentence to 12 years (1 year for each factor). Inflation should be in years and not months (Bade 2023; Court of Appeal).

Mitigating factors

7. But there are mitigating factors in your favour to reduce the sentence downwards. The notable one is early guilty plea to the further amended charge filed on 8/04/2024. This is the most rewarding mitigating factor for the 3 defendants. I will deduct 30% which is 3.6 years (3 years and 6 months). Next is first time offender with no previous conviction – I will deduct 1 year. There is a lot of delay culminating in the charge being amended twice, the latest in April 2024. Some of the delays are because the 3 defendants absconded. I will deduct 1 year for delay nevertheless. Personal circumstances of the defendant I should take little notice only and allow for a 6 months deduction.

Conclusion and Orders

8. The total head sentence I will impose is 6 years imprisonment. Any entitlement as to pre-trial custody will be deducted further for each of the 3 defendants, to be ascertained by the relevant Correctional facility. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE