R v Poso [2019] SBMC 36; Criminal Case 79 of 2014 (7 October 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 79 of 2014

REGINA

-V-

MATTHEW POSO

Date of hearing: September, 27^th, 2019
Date of sentence: October 7^th, 2019

Mr. Jasper Anisi for the Crown
Mr. Clifton Meleu Ruele for the Accused

SENTENCE

1. On 27^th September, 2019, the Accused – Mr Matthew Poso entered guilty pleas to five (5) counts of Indecent Assault contrary to section 141 (1) of the Penal Code^[1], the matter came before sentencing and mitigation submissions which I remanded the Accused and reserved my reasoning for today, I now unload my reasoning’s for his sentence.
   
2. This is a hideous indecent assault case; the poor child has been subjected to the unsightly sexual conducts by the accused on five separate occasions over period of 3 years (2011 – 2013). For most it occurred during night time when the child was alone without supervision. She was between 8 to 10 years old when these incidents happened and the accused was 48 years of age in 2011, clearly, a huge age disparity between them which demonstrates the power imbalance. The accused has capitalised on his maturity to lure the child into his lustful, disgusting and senseless web. Obviously, the accused has breached his trust as an adult person or elder towards a child in his community or relative which he ought to take care and looked after, instead he preyed on her for sexual gratification purposes.
   
3. On most occasions, the accused would touch and fondled the child’s vagina. On one instance in 2013, he inserted his fingers into her vagina which caused pain to her, he then took out his penis, spread her legs and rubbed his penis on top of her vagina until he ejaculated. He would normally give her money, lollies, noodles and other goods to avoid her from spilling the ugly accounts to her parents and relatives.
   
4. She has left school at her early stages of life simply because stories about what the accused did to her had triumphed all gossips in her community, being very young she could not bear the pain to face or withstand all that has happened. This is a story that will last in her memory for as long as she lives and breathe in this world.
   
5. The sentencing tariff for offence of Indecent Assault^[2] ranges from 1 year imprisonment to 5 years’ imprisonment depending on the accused level of culpability and the nature and circumstance surrounding the offending. Cases^[3] have reveal that this range is still applicable, hence, I accept to adopt it when setting the appropriate starting point.
   
6. Such a case calls for victim’s counselling and for the accused, a divine intervention or rather a total vigorous rebuke to his misleading sexual thoughts and desires that has led him into committing these crimes.
   
7. No child should ever be subjected to such an awful encounter in his or her life. Every child has the right to be protected from sexual predators and to fully maximise their childhood before their ingress into the adolescence stage and to adulthood.
   
8. It is my view time that this Court set a specific starting point for gross – Indecent Assault involving children of tender years, like in this case 8 years old. Accordingly, having assessed the circumstance of offending, the apparent aggravating factors plus the accused level of culpability, I set the following starting point for each count:
   
   • (a) Count 1 – Incident on an unknown date in December 2011 – 3 years’ imprisonment;
   • (b) Count 2 – Incident on an unknown date in 2011 – 3 years’ imprisonment
   • (c) Count 3 – Incident on an unknown date in June 2012 – 3 years’ imprisonment;
   • (d) Count 4 – Incident on an unknown date in June 2013 – 5 years’ imprisonment;
   • (e) Count 5 – Incident on an unknown date in October 2013 – 3 years’ imprisonment.
     
9. I validate the following as mitigating factors and use it to genuinely deduct the starting points; (i) Accused pleaded guilty^[4] to all the charges, this shows remorse on his part and the acceptance of his wrongs. His guilty pleas have reserves the Courts time and resources to run and full trial plus the avoidance of victim having to recount on the awful happenings. (ii) He is a first-offender and has a clean criminal record, he has been a law-abiding citizen for the past 52 years. (iii) He is married and father to 6 children. (iv) After the incident, the accused has involved himself in church and community duties, a Sunday school teacher for the New Mala SSEC Church.
   

Count 1

(a) I reduce 9 months to consider his guilty plea and remorsefulness. I further reduce 3 months to consider his clean criminal history. I also deduct 2 months to consider his family circumstances and his bold stand to commit himself to beneficial things in life, the church and community. The resulting sentence is 22 months or 1 year 8 months’ imprisonment.

Count 2

(b) I reduce 9 months to consider his guilty plea and remorsefulness. I further reduce 3 months to consider his clean criminal history. I also deduct 2 months to consider his family circumstances and his bold stand to commit himself to beneficial things in life, the church and community. The resulting sentence is 22 months or 1 year 8 months’ imprisonment.

Count 3

(c) I reduce 9 months to consider his guilty plea and remorsefulness. I further reduce 3 months to consider his clean criminal history. I also deduct 2 months to consider his family circumstances and his bold stand to commit himself to beneficial things in life, the church and community. The resulting sentence is 22 months or 1 year 8 months’ imprisonment.

Count 4

(d) I reduce 15 months to consider his guilty plea and remorsefulness. I further reduce 3 months to consider his clean criminal history. I also deduct 2 months to consider his family circumstances and his bold stand to commit himself to beneficial things in life, the church and community. The resulting sentence is 3 years’ and 2 months’ imprisonment.

Count 5

(e) I reduce 9 months to consider his guilty plea and remorsefulness. I further reduce 3 months to consider his clean criminal history. I also deduct 2 months to consider his family circumstances and his bold stand to commit himself to beneficial things in life, the church and community. The resulting sentence is 22 months or 1 year 8 months’ imprisonment.

10. The resulting sentences are as follows:
    
    1. Count 1 - 1 year 8 months’ imprisonment.
    2. Count 2 - 1 year 8 months’ imprisonment.
    3. Count 3 - 1 year 8 months’ imprisonment.
    4. Count 4 - 3 years’ and 2 months’ imprisonment.
    5. Count 5 - 1 year 8 months’ imprisonment.
       
11. Since both count 1 and 2 occurred within an unknown date in 2011, I order that they be served concurrently. Furthermore, count 3 and 4 be also served concurrently for reason that they occurred within the month of June 2012. Thus, the resulting sentence is 5 years’ imprisonment.
    
12. Finally, the 5 years imprisonment to be served consecutively to count 5. Therefore, the final resulting sentence is 6 years and 8 months’ imprisonment.
    
13. I acknowledge the delay of 5 years to bring this matter to its finality, a brief perusal into the record of proceedings and court file reveals that the accused also added to the delay when a warrant of arrest was issued against him on 21^st March 2016. He voluntarily appeared on a later occasion and the warrant was cancelled. Thereafter, his bail was extended for counsels to settle charge and to resummon him when all matters were finalised. That resummon took from 14^th August 2017 until this year, 2019, when he was served with summon and appeared in court for his matter. Clearly, the good number of delay must be absorbed by the Prosecution and Court in failing to settle preliminary matters and service of summon on the accused. I noted that the Court has been acceding to numerous pointless adjournments as well. Accordingly, I see it fit to deduct 2 years to consider the delay in this case.
    

Sentence Orders:

14. I hereby sentence the accused Mr Matthew Poso to 4 years and 8 months’ imprisonment.
15. Sentence to commence from date of first remand.
16. Right of appeal applies within 14 days.
17. Order accordingly.
    

THE COURT

.....................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] (Cap 26)
^[2] Section 141 (1) of the Penal Code (Cap 26)
^[3] R v Rukarae [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016); R v Okisi [2008] SBHC 79; HCSI-CRC 72 of 2007; R v Tebitanga [2013] SBHC 24; HCSI-CRC 75 of 2009; R v Tenu [2015] SBHC 85; HCSI-CRC 118 of 2014

^[4] 25 % deduction to any head sentence as reflected in the case of Qoloni v R