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R v Lokohia [2023] SBHC 107; HCSI-CRC 301 of 2023 (29 September 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 301 of 2023

REX

V

BARTHOLOMEW LOKOHIA

Date of Hearing: 25 September 2023 (Sitting at Lata Court House)
Date of Sentence: 29 September 2023

Mr Zoze and Ms Mutukera for the Crown
Mr Houa for the Defendant

SENTENCE

Introduction

1. Defendant is Bartholomew Bongo Lokohia comes from Tahua village, Duff Islands in Temotu Province. Mr Lokohia is charged with one count of “attempt rape” contrary to Section 136 (F) (3) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual offences) Act 2016 – “the 2016 Act”. Crown alleged that Bartholomew Bongo Lokohia on a date unknown between 1^st June 2021 and 30^th June 2021, at Kaulu village, Duff Island, Temotu Province, did attempt to rape Delma Melany.

Guilty plea on arraignment premised on agreed facts

2. Mr Lokohia was arraigned at trial on 25/09/2023. He pleaded guilty to the charge of “attempt rape” premised on summary of agreed facts settled on 22/09/2023 and filed on 25/09/2023. I think counsel for their cooperation and assistance. I will enter a conviction for the charge. I will adopt the agreed facts in full as follows: -
   1. The defendant is Bartholomew Bongo Lokohia of Tahua village, Duff Islands, Temotu Province. The defendant was 62 years old at the time of offending.
   2. The victim is Delma Melaney she was 11 years old at the time of offending.
   3. The defendant is related to the Complainant’s mother. They are cousins. The complainant will call the defendant his uncle.
   4. The alleged incident occurred on an unknown date between 1^st of June 2021 and 30^th of June 2021 at Kaula village, Duff Island, Temotu Province.
   5. On the date of the offending, the victim was having a walk from her house. On the way upon reaching the house of the defendant’s son, she saw the defendant sitting down at the house.
   6. The defendant then called out to the complainant to bring lime to him. After taking the lime, the defendant asked her to further fetch fire for him to light his smoke. The Complainant obeyed.
   7. After the complainant brought the fire to the defendant, she went and sat down with defendant at the veranda of the house.
   8. Whilst they were sitting down, the defendant asked the victim whether she wanted to have sex. The victim replied no.
   9. At that instance the defendant holds the right hand of the complainant and pulled her into the room inside the house. There the defendant removed the victim’s trousers and skirt. He did not remove her shirt.
   10. The defendant removed his own trousers and pushed her to the floor. Then he laid on top of her and tried to push his penis inside her vagina but could not penetrate her. The complainant felt the defendant’s penis around the complainant’s vagina.
   11. The defendant shook his buttock up and down and rubbed his penis around the complainant’s vagina.
   12. The complainant stood up and saw whit discharge on her thighs. She told the defendant that she was frightened. She wore her trousers and skirt and run back to their house.
   13. After three weeks the victim told Roger Sanisi about the incident. It was Roger Sanisi who told the complainant’s mother what the complainant told him. The complainant’s mother Hellen Hilongi asked the complainant and the complainant confirmed the incident.
   14. The complainant’s mother reported the matter to Lata Police station.

Starting point sentence and aggravating features

3. Now I have to determine the appropriate sentence to impose. Maximum penalty available for his offence is 20 years imprisonment. I have power to impose a lesser term of imprisonment. At the outset there must be a custodial sentence. Court must take heed of the protection of women and girls that Parliament intended through the reform made in the 2016 Act. Many cases were cited to me as comparative precedents, which I read and have given me guidance. I am grateful to counsel. However, I must consider Court of Appeal sentencing guidelines and the merit of this case as paramount to the comparative sentencing guidelines precedents.
4. The first thing is to set the starting point sentence as dictated by Court of Appeal sentencing guidelines. There is not much argument that the appropriate starting point sentence for this offending is 5 years. There is no violence or weapon involved and no penetration occurred.
5. I will uplift the 5 years sentence to 9 years because of the presence of 4 serious aggravating features namely (i) age disparity (victim 11 years and defendant 62, huge age difference of 51 years); (ii) young age of the victim (11 years); (iii) abuse of position of trust (defendant is complainant’s uncle) and (iv) psychological impacts (court to always take judicial notice despite lack of expert evidence).

Mitigating factors

6. But then there are mitigating factors present to reduce the 9 years sentence in favour of the defendant. The mitigating factors are – (i) early guilty plea and remorse; (ii) first time offender with no previous conviction; (iii) time spent in custody and (iv) medical condition of the defendant and his old age.
7. I wish to expand on the mitigating factors to justify the reduction made:-
   1. Early guilty plea and remorse- has two benefits. First it shows defendant’s true remorse and also the victim is excused from the trauma she would endure in the witness box at the vacated trial to recount her ordeal. Second it saves Court’s time and resources to vacate a trial. For these two benefits, I will deduct 2 years.
   2. First time offender with no previous conviction – I will deduct 1 year.
   3. Time spent in custody – I will deduct 5 months – March to July 2023.
   4. Old age and health issues – the defendant is currently 64 years. Life expectancy for men in the village in Solomon Islands is 61 years (Togovi case). It is said in Togovi that old age is an important factor that must reduce a sentence for a defendant. Court must recognise that each year of a sentence in prison represents an unusually substantial proportion of the period of life left to an aged offender. Court must consider the “reasonable expectation of usual life” after release from prison. For an old man like the defendant there is not much reasonable expectation of usual life after release because he will grow very old and fragile by time of release. To make matters worse in terms of old age, the defendant also has health issues with acute pain in his knees making him to walk with the aid of a walking stick. His medical card also shows he has obesity. For his age I observed that he is too fat. Probably that fat and weight is affecting his knees. These factors justify a heavy reduction of 3 years. For a young age offender, I will normally consider old age and ill heath as mitigation factors.

Conclusion and Orders

8. Court will convict the defendant as charged on the basis of his entering a guilty plea. Court will sentence the defendant to 3 years imprisonment. I will deduct 5 months’ time spent in pre-trial custody. The final head sentence to impose is 2 years and 7 months or 31 months. Order accordingly.

THE COURT
Hon. JUSTICE JOHN .A. KENIAPISIA
PUISNE JUDGE