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R v Chite [2021] SBHC 110; HCSI-CRC 563 of 2021 (28 September 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 563 of 2021

REGINA

V

CHARLIE CHITE

Date of Hearing: 26 August 2021
Date of Decision: 28 September 2021

Mr A Meioko for the Crown
Mr A Bosa for the defendant

Lawry PJ

SENTENCE

Introduction

1. Charlie Chite you have pleaded guilty to three counts of sexual intercourse with a girl under the age of 15 contrary to section 139 (1) (b) of the Penal Code as amended by section 5 of the Penal Code (Amendment) (Sexual Offences) Act 2016. You now appear for sentence.
2. Your trial was scheduled to be a reserve trial this week but could not commence on Monday because of the principal trial proceeding. There were discussions which resulted in an Amended Information being filed and you pleaded guilty to the charges in that Amended Information.

Facts

3. The Crown and the Defence filed a detailed statement of agreed facts for the purpose of sentencing. You are aged 27 and the Complainant is aged 14. Your counsel described the Complainant as a big girl and you were in a boy/girl relationship with her. Your counsel also submitted that you did not know that by having sexual intercourse with a girl aged 14 you were committing an offence.
4. You had kept in contact with the Complainant since January 2020. One day in May 2020 you called the Complainant and you arranged to meet at her house. You arranged to have sexual intercourse and she told you was afraid as she had not previously had sex. You laid her on the floor of the laundry, she removed her clothes and you had sexual intercourse with her. On another night in May, the two of you arranged to meet at your house in Noro. The two of you had sexual intercourse and the Complainant then left and went home. One day in June 2020 you arranged for her to come to your house. Once there the two of you again had sexual intercourse.

Aggravating features

5. The Crown has referred to the Court of Appeal decision of Mulele v Director of Public Prosecutions and Poini v Director of Public Prosecutions [1985 – 1986] SILR 145 where the Court of Appeal identified aggravating features that should be considered in cases such and yours. These features include disparity in age, abuse of a position of trust, subsequent pregnancy and the character of the girl herself.
6. The Crown asked me to consider three matters of aggravation. The first is the age disparity. She was only 14 and you were 27. Secondly the Crown asks me to consider her tender age as an aggravating factor. The offence only applies when the child is aged 13 or 14. The fact that the Complainant was aged 14 is therefore not an aggravating factor in my view. The Crown then says that the fact that the offending was repeated on two subsequent occasions is a matter of aggravation. I agree.

Mitigating features

7. Your counsel said you are the fifth born of 7 children in your family. You have recently married and your wife is expecting a child. He says that you provide care for your elderly parents. He says that you have employment at the Noro taxi base. He says your parents and your wife are dependent on you.
8. I am told you are an active member of the United Church and Youth in Church and the Community.
9. Counsel point to your guilty plea and asks for full credit to be given for that.
10. You have not previously been before the Courts and you get credit for your previous good character.
11. Your counsel says you co-operated with the Police. In explaining this counsel said you complied with the obligations put on you. You were required to do so. I cannot regard such compliance as a mitigating factor.
12. Compensation of $1,000.00 has been paid to the parents of the victim, paid by your uncle. I regard this as relevant to the remorse that you have shown since your offending came to light.
13. Your counsel says you are not at risk of re-offending. He tells me you are committed to living a law abiding life.
14. He refers to the delay in the filing of the Information which I have already discussed.

Starting point

15. I recognize that there has been a significant increase in the maximum penalty for having sexual intercourse with a child under the age of 15. I have been referred to a number of recent authorities. The difficulty with you case is the disparity in you ages. For a 27 year old to engage in a course of sexual conduct with a 14 year old girl even when she was a willing participant must be viewed as more serious than when the offender is a teenager himself.
16. Have been referred to a number of cases. There are similarities between your case and the case of Regina v Faenle [2019] SBHC 76. In Faenle a 19 year old pleaded guilty to 2 counts of sexual intercourse with a girl under the age of 15, she being 13 years and 5 months. The Court recognized the guilty plea and the willingness of the Complainant and reduced a sentence to 2 years imprisonment then suspending that sentence.
17. A similar approach was taken in Regina v Taburi [2021] SBHC 34 where the Chief Justice sentenced a 19 year old for 2 counts under section 139(1) (b) for consensual sexual offending on a 13 year old girl. The sentence of two years was suspended for two years recognizing the youth of both the offender and the victim.
18. Finally, in Regina v Joe [2020] SBHC 81, the High Court considered similar offending involving a 19 year old offender and a 13 year old girl. A starting sentence of 4 years was reduced to two years and that sentence was then suspended.
19. I regard the aggravating feature of the disparity in your ages as something distinguishes your case from Faenle, Taburi and Joe. I will follow the guidance of those case and reach a starting point of four years’ imprisonment.
20. L am required to consider that there are three offences. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court said:
    • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not them consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent.”

Later the Court said:

• “Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”

21. Laui was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. When confirming that concurrent sentences are appropriate for offences arising from a single transaction, the Court of Appeal also confirmed that the repetition of an offence on the same victim is a matter of considerable aggravation. I remind myself of the comments from the Court in Laui set out in paragraph [24] above, that a series of assaults on the same person even though spread out over a lengthy period of time, should properly be concurrent.
22. I direct that the sentences be concurrent although I must recognize the totality of the offending. For all the offending I take a starting point of 3 years and 9 months’ imprisonment. That starting point takes account of the aggravating features. From that starting point I give you credit for your guilty plea. There will be a reduction of 15 months’ imprisonment to reflect that plea. I give a further 6 months’ reduction to take into account the remaining mitigating features. The final sentence is therefore 2 years’ imprisonment subject to the provisions of section 44 of the Penal Code.
23. The sentence must recognise that your offending is more serious than those cases brought under the same section where the offender is still a teenager. You are aged 27 and the complainant was only 14. Although she was a willing participant the law recognizes that a child of 14 cannot consent to sexual intercourse. In order to give effect to this I direct that 12 months of the 2 year sentence will served and the second 12 months will be suspended for a period of 12 months.
24. The Court is required to explain Section 45 of the Penal Code to you. If you commit an offence during the period your sentence is suspended, and if that offence is punishable by imprisonment, the Court sentencing you will also consider the case you are now facing and may order you to serve the sentence that has been suspended. The Court sentencing you could also replace the suspended part of the sentence with a shorter term of imprisonment or could extend the period of the suspended sentence. If you are to be sentenced in the Magistrates Court, the Magistrate will send you to the High Court for you to be sentenced on the Magistrate Court matter and to decide whether to order that your suspended sentence will be served in prison or whether part of it should be served in prison.

Orders of the Court

The Defendant is convicted and sentenced as follows:

1. On count 1 to imprisonment for a period of 2 years.
2. On count 2 to imprisonment for a period of 2 years.
3. On count 3 to imprisonment for a period of 2 years.
4. The three sentences are concurrent making a total sentence of imprisonment for a period of 2 years.
5. 12 months of the 2 year sentence is to be suspended for a period of 12 months in accordance with section 44 of the Penal Code.

By the Court
Justice Howard Lawry
Puisne Judge