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R v Kalafi [2025] SBHC 54; HCSI-CRC 69 of 2021 (10 April 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 69 of 2021

REX

V

EDDIE KALAFI

Date of Hearing: 4 April 2025
Date of Decision: 10 April 2025

Mr Samuel Tovosia & Steward Beto for the Crown
Ms Alice Silas for the Defendant

SENTENCE

Bird PJ:

1. By information filed on 15 February 2021, Mr Eddie Kalafi (defendant) is charged with 1 count of sexual intercourse – child under 15, contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant was arraigned on the 4^th April 2025 and he entered a guilty plea. He now appears before me for sentence.
2. The facts as agreed to by the parties are the following:
   • The defendant and Ms Andy Elizabeth Bulu (complainant) are from Fulisango Village, Central Kwara’ae, Malaita Province. The defendant and the complainant are first cousins. The defendant’s father and the complainant’s mother are siblings.
   • In the afternoon of 6 August 2018 and having returned from school, the complainant collected her dirty clothes and pots and went to a stand-pipe located far down in the valley to wash them and to take a bath. On her way back, she saw the defendant walking towards her. The defendant asked her if he could have sexual intercourse with her. The Complainant agreed. They went to nearby bushes and had sexual intercourse with each other. At the time of offending, the defendant was 24 years old and the complainant was 10. She was born on 26 September 2007.
   • The complainant did not tell anyone about the incident. On the evening of 8 August, whilst urinating, she saw blood coming out from her vagina. She told her mother and she was taken to Kilufi Hospital. Dr Philip Mathew examined her. He confirmed the complainant had had sexual intercourse . She told her mother that it was the defendant who had sexual intercourse with her.
   • The matter was reported to the police and investigation was carried out. The defendant was arrested on 19 August and he participated in a record of interview. He admitted to the offending.
   • Subsequent to the offending, the defendant’s father paid compensation to the complainant’s parents. The complainant’s parents accepted the compensation of 2 x 9feet shell money and 1 x 1feet shell money.
3. Having stated the facts, I must tell you that the offence for which you are charged is extremely serious. To demonstrate to you its seriousness, our lawmakers has put the maximum sentence of life imprisonment as the appropriate punishment for such cases. I am also obliged to tell you that the complainant is below the age of consent. Therefore any consent that you might have had from her will not help you in your case. In summary consent is not a valid defence for you. In any event, I am empowered under section 24 (2) of the Penal Code (Cap 26) to impose a sentence which is less than the maximum depending on the particular circumstances of each case.
4. I have heard submissions from your lawyer as well as the prosecution. In order for me to impose an appropriate sentence against you for your offending, I must take into account the aggravating and mitigating features. In my consideration of the aggravating and mitigating features, I will also take note of the principles enunciated by this court in the case of Mulele v DPP and Poini v DPP [1985-1986] SLLR 145. In that case, the court had set out four features that must be observed and considered by the courts in sentencing sexual offenders. The four features included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. On behalf of the prosecution, they have outlined four aggravating features. Those features included person in a position of trust, age of the complainant, age disparity and psychological harm and trauma. I have heard from the agreed facts that you and the complainant are first cousins. Your father and the complainant’s mother are siblings. You are therefore a person in a position of trust.
6. The complainant was only 10 years old when you had sexual intercourse with her. Her age is a very serious aggravating factor that must be considered against you. You were 24 years old then. You were an adult person. Being your first cousin, you should have had regard and respect for the complainant. It is an accepted norm in Solomon Islands that cousin brothers are supposed to look after and protect their cousin sisters. You had no regard for that norm and had sexually abused her at a very young age.
7. What I must also consider as very serious in your case is the age disparity between yourself and the complainant. The age difference was 14 years. You were an adult and she was just a child. Being an adult person, you should have known the difference between right and wrong. You chose what was wrong instead. You were the one who initiated the idea and suggested it to the complainant. It is a disgrace that you have used your matured age to take advantage of an innocent child. You had no respect for her as your cousin and no respect for your respective families. Your action is highly deplored.
8. The complainant was not impregnated by you and there is no suggestion that she is of bad character. In relation to the issue of psychological harm and trauma on her, there is no evidence adduced before me on the adverse effects on the complainant. However, I hereby endorse and will apply the comment by the Court of Appeal in the case of R v Bonunga [2014] SBCA 22, SICOA-CRAC 12 of 2014. On that note, I will take judicial notice of the long-term impact and trauma on the complainant despite of medical and professional evidence.
9. On your behalf, it is submitted by your lawyer that you should be given credit for your guilty plea. I have perused the court file. I am unable to find in the file that you have initially entered any plea to the charge. In light of that position, I am able to take it that you entered your plea on 4 April 2025. You are hereby given credit for your guilty plea. You have no prior conviction. You are a first offender and I have noted that.
10. Your father has paid compensation to the complainant’s parents and the broken family relationship between the respective families have been mended. Our constitution recognises the application of custom. In that regard, custom compensation could be recognised as a mitigating factor. It must however be noted that the payment of compensation should not and must not be seen as a means of buying out ones guilt and punishment for the wrongs one has done.
11. I have also noted your personal circumstances. You are now 31 years of age. You are married with one child. You are not employed. Having noted them, I am also minded to note that in the case of Ligiau and Dori [1986] SBHC 15, the court stated that in sexual offence cases, matters personal to the offender must have less effect on sentence.
12. The starting point in the sentencing of sexual offenders is as stated by the Court of Appeal in the case of R v Pana [2013] SBCA 19; SICOA-CRAC 13 of 2013. The said court put the starting point at 8 years imprisonment for a child under the age of consent. The offender in that case was sentenced to 11 and ½ years imprisonment for defilement. The victim was 3 years old.
13. In your case, the complainant is under the age of consent. That puts your starting point at 8 years imprisonment. Further assistance on the sentencing method can be extracted from the case of Bara v Regina [2018] SBCA 10; SICOA-CRAC 36 of 2017. The Court of Appeal had set out guidance in which a starting must be stated. From the starting point, there will be adjustments having regard to the aggravating and mitigating features.
14. From the starting point, I regard the following as aggravating in nature. The complainant was a child under the age of consent. She was 10 years old. There was a breach of trust. The complainant is your very close family member. She is your first cousin. I also regard the disparity of age as aggravating as well as the long-term psychological harm and trauma on her. I will increase the starting point by 2 years.
15. I have regard to you guilty plea and that you are a first time offender. Your guilty plea makes it possible for the complainant not to be subjected to further stress and trauma to give evidence in court. To some extent, I also note that compensation has been paid by your father. For the mitigating factors stated herein, I will reduce your sentence by 10 months.
16. The offending for which you are charged and convicted of occurred on 6 August 2018. The case was committed to this court on 5 February 2021. The information against you was filed on 15 February, about 10 days after your committal. By July 2021, your case was ready for trial. You abscond bail since then. You were in breach of your bail conditions. You left your village and went to Makira Province without leave of the court. Your action have led to the delay in progressing your case to completion. The warrant of arrest issued by this court on 25 July 2022 has only been executed by the police on 15 March 2025. You have been in custody since then.
17. Upon the above reasons, I will not take into account the delay in the finalisation of your case and the period of time that you have spent in custody.

Orders of the court.

1. Mr Eddie Kalafi, you are hereby convicted of one count of sexual intercourse – child under 15 contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. You are hereby sentenced to 9 years and 2 months imprisonment.
3. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge