R v Polosovai [2025] SBHC 17; HSCI-CRC 574 of 2023 (7 March 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Polosovai
Citation:
Date of decision:	7 March 2025
Parties:	Rex v Marjarllan Polosovai
Date of hearing:
Court file number(s):	574 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	(1) Counts Ct 1 8 years’ imprisonment, Ct 2 8 years’ imprisonment, 2. Count 2 to run concurrently to count 1, 3. Defendant to served 8 years imprisonment, 4. Any period of time spent in custody for the case to be deducted from sentence to be served; and 5. No further orders
Representation:	Tonowane N for the Crown Aisa T for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2018 [cap 26] S 136F (1) (a) & (b), S 140 (1) (a) & (b), S 139 (1) (a)
Cases cited:	Edward Fiuadi v R [1988-1989] SILR 50, Pana v Regina [2013] SICOA,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 574 of 2023

REX

V

MARJARLLAN POLOSOVAI

Date of Hearing: 28 February and 3 March 2025
Date of Sentence: 7 March 2025

Tonowane N for the Crown
Aisa T for Defendant

SENTENCE

Maina PJ:

1. Defendant MARJARLLAN POLOSOVAI entered guilty plea and convicted on two counts of sexual intercourse with a child under of 15 years contrary to section 136F (1) (a) & (b) of the Penal Code [Cap 26] as amended by the Penal Code (Amendment) Sexual Offences Act 2016 and with a child under 18 years contrary to section 140 (1) (a) & (b) of the Penal Code [Cap 26] as amended by the Penal Code (Amendment) Sexual Offences Act 2016.
2. Agreed Facts
3. Defendant Marjallan Polosovai of Sasamunga Village, Choiseul Province was 23 years old at the time of the first and the second offence.
4. Victim is Regina Maria was 14 years old at time the first offence and 15 years old at the time of the second offence and attended form 2 at the Gizo Community High School.
5. Defendant is the victim’s uncle as the victim’s mother and defendant are first cousins.
6. On 4^th May 2023 between 10pm and 11pm, the victim and her cousin sister Marisha Muro stayed alone at home, KHY area, Gizo, Western Province when her mum went to work at PT109 night club.
7. Defendant Polosovai came to the victim at the house and they went to an empty room in the house. In the room the defendant asked Regina Maria for sex and she agreed. They remove the clothes from their bodies and had sexual intercourse. Defendant inserted his penis into Regina’s vagina and he had sexual intercourse with her.
8. The second incident was also occurred at KHY area, Gizo on 27^th May 2023 between 9pm and 10pm.
9. At around 8pm, Defendant Polosovai went to Marisha Muro and Regina Maria and asked for his beers he had left there in the afternoon. He took his beers and went to the hammock behind Regevuru’s house and there he laid on the hammock, drunk the beers and played music.
10. Not long after, Regina came and asked him for smoke but Defendant Polosovai gave some money for her to go and pay the smoke for him.
11. Regina came back with the smoke and she and asked for a smoke. Defendant asked if she can smoke and she said yes, but was hiding it from her mother.
12. Defendant asked Regina Maria for sex with him and she agreed, so they went in house and went to the empty room and there they removed their clothes and had sexual intercourse. The defendant inserted his penis into her vagina and they had sexual intercourse in the room.
13. The incidents were reported to the Police and after the investigation the defendant Marjallan Polosovai was arrested and charged with the offences.

Maximum Penalty

14. Maximum Penalty for the offence under section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offence) Act 2016 is life imprisonment.
15. For the offence or sexual intercourse with a child under of 15 years contrary to section 140 (1) (a) & (b) of the Penal Code [Cap 26] as amended by the Penal Code (Amendment) Sexual Offences Act 2016, the maximum penalty is 15 years.
16. With the offences under the provisions, consent is not a defence.

Mitigation

17. Defence counsel submitted that the defendant was 23 years old at the time of the incident and he is now 25 years old. He has no previous conviction.
18. Counsel further submits that defendant’s guilty plea that:
    • saves with relieve and standing of the victim at the witness box to give evidence
    • saves court’s time of hearing the case, resources and agencies time and resources
    • Defendant is remorse and is sorry for his wrongful conduct, accepts any consequences for his action.

Aggravating Features

19. The Crown submitted for the court to take into account these as aggravating factors:
    • The age of the victim was 14 years or she is a child,
    • Breach of trust as the defendant is the victim’s uncle,
    • Psychological and emotional effect on the victim,
20. The defence counsel made submission on the mitigating factors for this defendant and he referred to numerous court cases. I content that the cases relate to the views and discussions in the law on the mitigation. Noting the cases, they may be adopted or applied but each case defends on own its facts and circumstances.
21. The Counsel for Crown with his submission on aggravating factors also referred or cited to the many cases, I noted that and say that what has been said above applies or is the position.

Breach of Trust

22. Defendant is uncle to the victim and being with the family, you are entrusted with responsibility to provide security to your niece instead you abused that responsibility when you had sexual intercourse with her.
23. It has been stated in the court that any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate ^[1]
24. For this defendant, I give credit to him for the guilty plea on the charges against him. I agree with the defence that defendant’s guilty pleas save the court’s time of hearing the case, resources and agencies’ time and resources.

Starting Point

25. The Court of Appeal in the case of Pana v Regina^[2] sets the starting point of eight years in the sentence for the sexual offences if the victim is below of the consenting age.
26. The defendant had pleaded guilty on both counts and taking into account all the circumstances from the facts, mitigating factors and aggravating features as submitted by the counsels, the court is in the view to impose the sentence to realise he had committed a serious offence and the disgraceful to him and the community. It is my view that the appropriate sentence the defendant is eight years imprisonment for each count.

THE ORDERS OF THE COURT:

The accused is sentence as follows:

• (1) Counts
  • Ct 1 8 years’ imprisonment,
  • Ct 2 8 years’ imprisonment,

2. Count 2 to run concurrently to count 1,
3. Defendant to served 8 years imprisonment,
4. Any period of time spent in custody for the case to be deducted from sentence to be served; and
5. No further orders

HE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152
^[2] [2013] SBCA 19, SICOA-13 of 2013