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R v Kosa [2023] SBHC 175; HCSI-CRC 43 of 2022 (31 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 43 of 2022

REX

V

PAUL JUNIOR KOSA

Date of Sentence: 31 August 2023

Nagu H for the Crown
Rusi EP for the Defence

SENTENCE

Maina PJ:

1. The accused Paul Junior Kosa was charged on two Counts of sexual offences with Count 1 under section 139 (1) (b) of the Penal Code (Sexual Offences) Act 2016 and Count 2 on sexual intercourse with a child under 18 years under section 140 of the Penal Code (Sexual Offences) Act 2016.
2. The Count 2 was nollie prosequi by the DPP under section 68 (1) of the Criminal Procedure Code.
3. The accused Kosa pleaded guilty of sexual intercourse with a child under 15 and according convicted on own plea on the charge.

Summary of Facts

4. The defendant was 18 years old when he committed the offence and the victim was 14 year old at the time of the offence.
   • On the unknown date in November 2020, the complainant friend Elena Kidusi told her that the defendant wanted to see her. The complainant went and met Paul Junior Kosa at around 1am behind his house at Vaturua village, Small Gela Central Province.
   • Defendant asked her to have sexual intercourse but she was afraid and told him that she did not want to have sex. Defendant insisted and told the complainant that he loved her and wanted to have relationship with her.
   • Defendant then told the complainant to remove her clothes, which she did, and he had sexual intercourse with her by the style or way of penile-vaginal intercourse.
   • The complainant felt pain on her vagina and backside as it was her first time to have sex. She could not walk properly and returned home.

Maximum Penalty

5. The offence of sexual intercourse with a child under 15 is a serious offence and maximum penalty is liable to life imprisonment.

Starting Point

6. The starting point for rape offence and for you with the guilty plea is 5 years.

Mitigating and Aggravating Factors

7. For mitigating factors, the defendant is a first offender and plead guilty to the charge, early age of his life. He regretted what he had done to the victim. The court to take into account the delay of the case in the sentence.
8. For the aggravating factor, it is only the disparity age of 4 years but I would say is minor not much different to each other
9. I noted the cases referred to by both counsels in this jurisdiction on the sentence.
10. The Crown’s Counsel in the submission referred to the case on discretionary sentence of life imprisonment to the case of Tariani v Reginam [1989] SBCA 3; [1988-1989] SILR 7 (11 December 1989).
11. I noted the conditions stated in the case but they are for the cases:
    • where the offence or offences are in themselves grave enough to require a very long sentence,
    • the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and
    • offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.
12. The Crown asked the court to consider and satisfy the above for the accused case in the sentence. However, the agreed facts do not or seems not fulfill the condition and does not deserve such consideration.
13. With this case, the age disparity was 4 years, you were 18 years, and the victim was 14. It is noted but not so much difference. Both of you are young persons and with you are a youthful offender.
14. I also take into behavior of the victim that she participated in this incident when she herself went to you at 1am or at the night.
15. Upon taking into account the facts of the case, the mitigation and aggravation factors, no previous conviction, the prevalence of the kind of cases in our communities and the need to impose the deterrence sentences on these type of offences. I am satisfied that deserve a sentence of 3 years.

Orders of the Court

(i) Accused Paul Junior Kosa is sentence to 3 years imprisonment,
(ii) The time spent in custody with this case to be deducted from the sentence,
(iii) No further orders

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge