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R v Poloso [2019] SBMC 13; Criminal Case 324 of 2018 (22 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 324 of 2018

REGINA

-V-

BEN POLOSO

Date of plea: February 21^st, 2019
Date of sentencing submissions: February 21^st, 2019
Date of Sentence: February 22^nd, 2019

Mr. Ismael. F. Kekou for the prosecution
Mr. Clifton. M. Ruele for the defendant

SENTENCE

Introduction:

1. On 21^st February 2019, the accused entered an unequivocal guilty plea to a count of indecent act, contrary to section 138(1)(a) & (b) of the Penal Code (Cap 26) as amended by the (Sexual Offences) (Amendment) Act 2016. I accordingly convict him on his own guilty plea. Therefore, I must make a just and appropriate sentence for his case.
   

Agreed summary facts:

2. The victim is Ms. Mary Qilarokoso who was 16 years old and was attending Grade five (5) at Taqibangara Primary School. The accused is Mr. Ben Poloso and he was 25 years old during the time of offending.
   
3. The accused and the victim are related as uncle and niece. The accused is a cousin brother to the victim’s mother. The victim was residing with her uncle Maecy Dolu and his family at Kumanibae village, Northeast Choiseul, Choiseul Province.
   
4. On 3^rd of December 2018, Maecy Dolu and his wife left to Susuka village for a week. The victim stayed home with the children of her uncle.
   
5. On 8^th December 2018, at around 10:00pm, while Maecy Dolu and his wife were still at Susuka village, the accused and Edwin went to Maecy Dolu’s house at Kumanibae village. The accused and Edwin were drunk and carrying a bucket containing homebrew.
   
6. The accused and Edwin met with Ms. Loen and the victim, thereafter, they all take turn on drinking homebrew from the bucket. Later they wanted some smokes so they walked to Gagara village to get smokes. As they were walking, it got dark so they used the torchlight app from Edwin’s mobile phone.
   
7. When they reached the river, mouth leading to Gagara village, Edwin and Loen waited there while the accused and victim proceeded to Gagara to get smokes. Edwin gave the mobile phone to the victim to help light their way to Gagara village. When they were far from Edwin and Loen, the accused asked the victim to shine the torch to his way but the victim was afraid of the dark and was torching in front of herself.
   
8. The accused then called to the victim from behind “Offum torch fastaem”, the victim was afraid and proceeded further ahead, the accused went after her and told her “torch come, “what na you frightem ya?. He continued, “you frightem me ya?”and how you fright nogud me fuckem you?”
   
9. Upon reaching the victim, the accused grabbed her hand and breasts. The victim released herself and escaped by running to Gagara village. She went and got to his cousin brother; Peter Qae’s house and told him what had happened.
   

Max Penalty:

10. The provision that best suit this case regarding the appropriate penalty is the one involving trust against child or section 138(1)(a)(b) & (a) of the Penal Code (Cap 26) as amended by the (Sexual Offences) (Amendment) Act 2016. “Child” as interpreted under this said amendment is a person below the age of 18 years, in this case, the victim is 16 years and the accused is his uncle.
    
11. The maximum penalty for Indecent Act without consent contrary to section 138(1)(a)(b) & (a) of the Penal Code (Cap 26) as amended by the (Sexual Offences) (Amendment) Act 2016 is 10 years’ imprisonment.
    
12. The amendment to the old provision of the Penal Code (Cap 26) only demonstrates how the lawmakers are serious about such offending involving breach of trusts against child. It is serious that the increase is a significant one, hence, reveals their mind to detest and condemn those who are responsible for committing such unsightly crimes.
    
13. Having averred the above, it is also the law of this nation that the maximum penalty is reserved for the worst type of offending and that cases are to be dealt with according to their own merits and unique set of facts^[1].
    

Aggravating factors:

14. Having perused the agreed summary of facts and due consideration to the circumstance of the offending, I find the following to aggravate the offending: -
    
    • 14.1. Breach of Trust – The accused is a maternal uncle of the victim. This is a trust that originates from being biologically related to each other and one that is assumed from birth. The accused ought to render love, care, respect and security to the victim instead he acted otherwise when he committed the offence, hence, ultimately breached the trust that he owed to his niece.
      
    • 14.2. The offence was committed at night – Offences which are committed at night aggravates it. It was dark and will be difficult for the victim to seek help and assistance as compared to daytime when villagers frequent the roads, the fact that it happened at night puts the victim’s life at greater risk and danger. She is a female and a vulnerable person in our society. It was also fortunate that she did not injure herself when she escaped for her safety from the accused to Gagara village.
      
    • 14.3. The accused was drunk when he committed the offence – It is the law of this nation that those who committed any offence when being under liquor or intoxicated must expect no leniency from the court^[2]. The accused consumed homebrew that night with the victim but this is not a license or warrant him to proceed to gain any sexual gratification from her. If that mindset was stimulated by alcohol, then I understand why it is regarded as an aggravating factor so to speak.
      
    • 14.4. There’s a huge age disparity of 9 years - The accused was 25 years and the victim was 16 years at the time of the offending. The difference between age simply demonstrate and differentiate the maturity of the human mind to think sensible and gauge between what is right and wrong. As the older person or adult, the accused is in a position expected to provide the most sensible and acceptable approach needed, he should render respect and care to the victim instead he did the opposite.
      

Case authorities:

15. In the case of Regina v Gogonokana,^[3] the accused pleaded guilty to a count of indecent act contrary to section 138 (1)(a)(b) & (d). He is related to the victim as adopted brother. The victim is in her 40’s while the accused was in his 20’s during the time of offending. The facts revealed that the accused licked the victim’s buttocks outside her clothing and held her breasts while she was sleeping. He was drunk during the commission of the offence. This court having considered the circumstance of offending, aggravating and mitigating factors, imposed a 16 months’ imprisonment.
    
16. In case of R v Buga^[4] The accused was charged with 1 count of indecent assault contrary to section 141 (1) of the Penal Code (Cap26). Facts revealed that the victim was drunk and slept near a SIEA pillar box at the gate to the SI Copra premises, Honiara. Having observe this, the accused took advantage of the situation by indecently assaulted the victim by touching her breast and vagina. Defendant pleaded guilty and was convicted and sentenced to pay a fine of $1,500 in default 3 months’ imprisonment.
    
17. In case of R v Rukarae^[5], Defendant was charged with 7 counts of indecent acts. He pleaded not guilty and the matter went to trial. The trial magistrate then found him guilty of 2 counts of indecent assault and convicted him accordingly. He was then sentenced to 3 ½ years’ imprisonment. The victim in this case was 10 years old during the time of offence and the accused is the grandfather. Facts revealed that the accused showed his penis to the victim and uttered words to the effect that it’s the organ used to penetrate female vagina. On another occasion the accused held the victim’s buttock and turned her to face up from her original sleeping position. It was at that stage he held her body inside her trouser.
    
18. In Regina v Pana^[6] the accused was sentenced to 2 years’ imprisonment after re-arraigned on charge of indecent assault. He committed this offence together with charge of defilement. The facts regarding the indecent assault was that the accused took the victim to his room, undressed her and touched her vagina with his fingers.
    
19. Having considered the circumstance of this case and the comparative cases cited above, it is my view that this case falls in between the case of Buga^[7] and Gogonokana^[8]. Therefore, any sentence that this court will impose must be one that falls between the ranges imposed in the two said cases and imprisonment sentence term is inevitable in this case.

Sentencing remarks:

20. At the outset, I must reiterate the paramount view, that is, this court condemns those who practices offences involving sexual immorality and indecency, more specifically when it involves family members and or persons in the position of trust. Such practices only depict persons who betrays their own responsibility which was vested in them on their ingress into this earth. It is sickening and at the same time sad to see such practices in our slowly developing nation. Further, it demonstrated decaying of moral and cultural norms and values.
    
21. If it is out of some lustful thoughts triggered by external drug use, alcohol, pornographic habit or effect from use of any penile herbal oils, then it is now the day to accept divine intervention and make amends or counter-twist to the steering wheel, because that pathway is predictable to be heading nowhere other than a hard hit on a concrete wall, that is when you will come before this Court to face the vibrant force of the law.
    
22. I must also say that vulnerable persons in our society needs to acknowledge the decaying status of our moral and cultural values, hence, they must take good care and safety of themselves. In the past, family members enjoyed together and on occasion party together with the word “respect” hovering over their head and in their minds. This is not the case today, hence, make good decision, be at the right place, doing right thing and at the right time. It is a best practice to foresee the consequence before accepting any offer from friends or peers.
    
23. The victim in this case was 16 years old and a grade 5 student during the time of the offending. However, the agreed facts revealed that she was drinking homebrew and smoking with the accused at the night of the offending. I am stunned to see that she embarks that path at that early stage of her life. This case must be a lesson learnt and a turning point in her life as well. Because as the saying goes, respect is not something one asks for but rather earned it, hence, she should respect herself and refrain from such activities and practices should she wants to go far in life.
    
24. Any sentence against offences of sexual immorality and indecency must one that carries the beacon of deterrence to demonstrate detest and repugnance to such behaviour in our society. Likeminded perpetrators and the general public must acknowledge the living presence of the rule of law and to understand that this court will not take offences of such nature with leniency.
    

Starting point:

25. I accept that this case falls on the lower scale of indecent act re-persons in the position of trust. The accused merely grabbed the breasts, there are no evidence of pre-planning or ill-motive, but a spur of a moment one that emanates out of foolishness of alcohol use. He clearly, took the impression to try his thoughtless luck while they were alone. He now faces the law for his ill actions.
    
26. Having discussed the apparent aggravating factors, comparative cases and the circumstance of the offending considering the accused level of culpability, the appropriate starting point in my view is 2 years’ imprisonment.
    

Mitigating factors:

27. I consider the following as mitigating factors: -
    
    • 27.1. Guilty plea and Remorseful – the accused entered an unequivocal guilty plea to the charge against him which also shows that he is remorseful and he accepts the consequences of his actions. I shall give full discount available in the case of R v Qoloni that is 30 % discount. His guilty plea has saves the courts time and resources of having a trial. It also avoids the strain to have the victim recount on the disturbing memory of what had happened.
      
    • 27.2. First time offence/ No previous conviction – this is the first time for the accused to had clash with the law. I accept that there’s prospect of rehabilitation.
      
    • 27.3. He is a 25 years old person and single – clearly, he has a huge future ahead of him and or that there’s more to life that he is yet to explore.
      

Sentencing consideration:

28. I reduce 8 months to consider his early guilty plea and 4 months to consider the fact that he is a first-time offender and that he is a young and single person who has a life and future ahead of him.
    

Sentencing Order:

29. I hereby sentence the accused; Mr. Ben Poloso to 12 months’ imprisonment.
30. Time spent in custody or pre-detention period shall be deducted from this head sentence.
    
31. 14 days right of appeal applies.
    

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

^[1] Sahu v Regina [2012] SBHC 122
^[2] R –v- Oma
^[3] Regina v Gogonokana [2018] SBMC 2018
^[4] R v Buga [2012] SBHC 131; HCSI CRC 99 of 2009 (5 December 2012)
^[5] Regina v Rukarae [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016)
^[6] Regina v Pana [2008] SBHC 402
^[7] Ibid 3
^[8] Ibid 4