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R v Losiga [2024] SBCA 18; SICOA-CRAC 37 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against the order of acquittal of the Respondent, Joel Losiga (“the Respondent”), Defendant in the High Court, on the 18^th August 2023, on the lesser offence of Indecent Act on a child under the age of 15 years.
2. The Respondent had been initially charged with the offence of Sexual Intercourse with a child who is under the age of 15 years, contrary to section 139(1)(b) of the Penal Code, as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (“the Amendment Act 2016”). At the time of the alleged commission of the offence the child was 14 years old.
3. The maximum penalty for this offence is 7 years imprisonment, where the offender is a person in a position of trust in relation to the child, or 5 years in any other case. It is not in issue that the Respondent is related to the victim as an uncle or cousin.
4. In his judgment, the learned Judge found against the evidence and acquitted the Respondent (Defendant in the High Court) of the initial charge of sexual intercourse with a child under the age of 15 years.
5. In her closing submissions on this matter, the learned Director of Public Prosecutions, Mrs. Olutimayin submitted to the Court that in the event the initial charge was dismissed and the Respondent acquitted, that it was still open to the Court to convict the Respondent of a lesser offence, pursuant to section 159(2) of the Criminal Procedure Code (cap. 7).
6. The lesser offence referred to is section 139(2) (b) of the Amendment Act 2016. That section provides as follows:
   • “Section 139. Sexual Intercourse or Indecent Act – Child under 15
   • (2) A person commits an offence if the person commits an indecent act on or in the presence of a child who is under 15 years of age.”
   • (Emphasis added).
7. The maximum penalty for the offence is 7 years imprisonment, where the offender is in a position of trust in relation to the child, or 5 years imprisonment in any other case.
8. The relevant provision which was relied on by the learned Director to support her submission to convict on a lesser offence, is Section 159(2) of the Criminal Procedure Code. Section 159(2), provides as follows:

“When offence proved is included in offence charged

159.- (1) ...
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.” (Emphasis added).

9. The learned Judge correctly dismissed the objection by defence Counsel Mr. Ifuto’o in the High Court and held that he could convict on the lesser offence if the facts establish beyond a reasonable doubt the elements of the offence of indecent act. He also correctly held, that there were three key elements for proof to the required standard, being,
   • (1) The identity of the defendant;
   • (2) Whether the act was indecent; and
   • (3) Whether it was committed on or in the presence of a child under 15 years.

The Appeal Grounds.

10. The Appellant appeals against the orders of the High Court on the following three grounds:
    • Ground 1: His Lordship erred in law when he incorrectly stated the alternative offence urged on him by the Crown as 39(2)(b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 instead of section 139(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
    • Ground 2: The trial judge erred in law when he incorrectly stated the elements of s139 (2). The trial judge erred when he added “in the presence of a child” as an element of the offence of indecent act on a child who is under 15 years of age, contrary to section 139(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
    • Ground 3: His Lordship erred in law when he found that the Crown is required to prove that the Respondent was in a position of trust to the complainant, on the charge of indecent act contrary to s 139(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act.
    • The orders sought under section 21(2) of the Court of Appeal Act in turn are:
    • (1) That the order of acquittal be set aside and substituted with an order of conviction on the offence of indecent act on a child who is under 15 years of age.
    • (2) That the Court impose an appropriate sentence.
    • (3) Any other orders that the Court deems fit.
11. In his submissions in court, Mr. Zoze of Counsel for the Appellant, informed the court that he would focus on the second ground of appeal as the main basis of the appeal.

The issue on appeal.

12. The issue on appeal is the finding of the learned Judge in his judgment commencing from paragraphs 16-18. At paragraph 17 in particular, in the last sentence, he states:
    • “The last element (iii) require that the indecent act must be committed in the presence of EK (the victim).”
13. At paragraph 18, he considered the meaning of “indecent act” as defined in section 136 (B) (1) and (2) of the Amendment Act 2016, and applied a strict interpretation to the definition as being inapplicable to the circumstances of the victim in this case as she was sleeping. He reasoned that the legislation sought to protect young girls from men doing indecent acts in the presence of young girls. All the examples referred to were related to indecent acts committed in the presence of young girls and so in the circumstances of this case, the fact that the victim was supposedly sleeping meant that essential requirement of it being committed in her presence (because she was asleep) was not fulfilled and so the Respondent could not be convicted of that lesser offence of indecent act.
14. The Appellant on the other hand submits that, this is where the learned Judge erred in law when he confined the meaning or application of the definition of “indecent act” to that of it having been committed in the presence of the victim only, when the Crown’s case was that it was committed with or on the victim. It was immaterial therefore whether she was asleep or not as it was witnessed in any event by the witness, Hellen (also known as Jemimah Ben).
15. The Respondent on the other hand sought to argue in lieu thereof, that the orders of the Court was unassailable on another ground being, that the Court had no jurisdiction in any event to make any finding of a lesser offence in relation to sexual offences, as section 168 of the Criminal Procedure Code (cap. 7) (“CPC”) was not subsequently amended to cater for the new offences, which would have replicated sections 141(1), 142 and 145 of the repealed provisions.
16. That provision (section 168) provides as follows:
    • “Person charged with defilement of a girl under fifteen years of age may be convicted of an offence under sections 141(1), 142 and 145 of the Penal Code
    • 168. When a person is charged with the defilement of a girl under the age of fifteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1), 142 and 145 of the Penal Code, he may be convicted of that offence although he was not charged with it.”(Emphasis added).
17. Mr. Ifuto’o of Counsel for the Respondent submits that when the Amendment Act 2016 was made, no consequential amendment was made to section 168 of the CPC, to replace those repealed provisions being, sections 141(1), 142, and 145 of the Penal Code. Accordingly, he submits that in relation to sexual offences, the Court did not have jurisdiction to convict on a lesser offence as opposed to section 159 of the CPC, which should be read as applying to other offences, but excluding sexual offences.
18. Section 141(1) of the repealed provisions expressly provides for the offence of indecent assault as follows:
    • “141 (1) Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and shall be liable to imprisonment for five years.”
19. It is not in issue that the maximum penalty of five years for the offence of indecent assault pursuant to section 141(2), is less than 7 years for the offence for an offender in a position of trust but the same maximum in any other case, of 5 years.
20. The offence under section 142 on the other hand enables a conviction to be entered under subsection 142(1), of sexual intercourse with any girl under the age of thirteen years, for which the maximum penalty is life imprisonment. The submission therefore by learned Counsel Mr. Ifuto’o does not coincide with the power of the court in section 168, to convict of an offence that is of a more severe penalty, of life imprisonment.
21. Subsection 142(2) on the other hand does allow for a conviction on an “attempt to have unlawful sexual intercourse with a girl under the age of thirteen years”, for which the maximum penalty is one of two years.
22. The other offence provided for in section 168 of the CPC is section 145, which relates to the offence of “Procuring defilement of woman by threats or fraud or administering drugs”. This is classed as a misdemeanour and the maximum penalty is two years.

Decision.

23. The submission therefore by Mr. Ifuto’o that the Court does not have jurisdiction to convict for a lesser offence in regards to sexual offences as set out in section 168 of the CPC, is distinguishable and cannot be sustained. That provision does not refer to any “lesser offence”, but to an offence, being sections 141(1), 142 and 145 of the repealed legislation.
24. Section 159 of the CPC on the other hand, is clear in terms of its application to the class of lesser offences, and is of general application to all offences, including sexual offences. To read it as limiting its application to other offences and excluding sexual offences will be reading words into that section, which is not permitted.
25. Section 168 of the CPC on the other hand, empowers the court to convict of the offences specifically mentioned being, sections 141(1), 142, and 145, but which are not necessarily lesser offences. Section 142(1) for instance, as pointed out earlier in this judgment applies to an offence of sexual intercourse with a girl under the age of thirteen years, which carries a maximum sentence of life imprisonment.
26. Section 159 provides as follows:
    • “When offence proved is included in offence charged
    • 159.- (1) When an person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.
    • (2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.” (Emphasis added).
27. In the case of Regina v. Oli^[1], this Court said:
    • “Section 159 (2) gives a discretion to a trial judge to convict on a lesser offence where the facts proved satisfy the elements of such lesser charge. If a judge is satisfied that an accused should be acquitted of the offence charged, but the elements of a lesser charge are proved beyond a reasonable doubt, it will only be in some exceptional circumstances that a conviction should not be entered on the lesser charge.”
28. This is a general provision that gives jurisdiction to the court to convict of a lesser offence although he was not charged with it, if the particulars or facts establish the elements of that lesser offence to the required standard.
29. This is the submission of the Crown to the Court in this case and which correctly, the learned Judge agreed to, having found facts that were consistent with the commission of a lesser offence of an “indecent act”, pursuant to section 139(2) (b) of the Amendment Act 2016.
30. Where he erred however, was in confining the commission of the lesser offence of “indecent act” to application of the words “in the presence of” the victim, and omitting the other part, which says “on or in the presence of”, the victim. The Court cannot pick and choose the words of the legislation but apply the law as written. By omitting the words “on the victim”, he committed an error of law which resulted in an erroneous finding that resulted in the acquittal of the Respondent.
31. We are satisfied accordingly the appeal should be upheld, the orders of acquittal of the Court below quashed and the matter reverted back to the High Court for sentencing.
32. The Respondent is released on bail and required to appear before the High Court on the Friday 1^st November 2024 at 9:30 am for sentencing submissions etc.

ORDERS OF THE COURT:

1. Allow the Appeal.
2. Quash the orders of acquittal of the Court below.
3. Enter conviction on the offence of indecent act contrary to section 139(2) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
4. Revert the matter back to the High Court for sentence consistent with this Court’s reasoning.

Muria P
Palmer CJ
Gavara-Nanu JA

^[1] [2018] SBCA 3; SICOA-CRAC 32 of 2017 (11 May 2018)