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R v Roges [2020] SBHC 64; HCSI-CRC 303 of 2019 (29 June 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 3030 of 2019

REGINA

V

JIMMY ROGES

Date of Sentence: 29 June 2020

Counsels
Kelesi/Meioko for Crown
Tinoni A for Defence:

SENTENCE

Maina PJ:

The Accused JIMMY ROGES pleaded guilty and convicted on one count of sexual intercourse with a girl under 13 years contrary to section 139 (1) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. An offence, if the child is under 13 years of age or the offender is a person in a position of trust in relation to the child punishable up to life imprisonment.

The accused is 70 years old and the complainant is 6 years old and both are from Nimula village, Kohingo Island, Western Province. Accused is related to the complainant as her uncle. The father of the complainant is the accused’s brother.

Facts

On the 19^th July 2018 at Dokulu village, Kohingo Island, the complainant’s mother took her to look after her younger brother inside the room while the mother prepares the dinner. At that time the accused was there and he called the complainant from the room area of the house. Accused was sitting on top of a bench and the complainant came and sat beside him. Accused removed complainant’s trousers and he pushed one of his fingers into her vagina. Accused told her not to tell her mother about what had happened. The matter was reported to the police and the accused was eventually charged.

The facts was read and explained by Counsel Kelesi for the Crown to the accused. Upon completion of putting the facts to the accused, I asked the accused if her understands the facts and if it is true or “hem tru”. Accused replied “yia”. I asked the accused again what he meant when he said “yia”. Accused replied again “yia hem true, hand nomoa ia”. I asked Defence Council Tinoni, if it was his client’s instruction to him and Counsel Tinoni said that is according to his client’s instruction to him “yia but longo hand, finger nomoa ia”.

Whether it was “finger nomoa ia” (just only a finger) under section 136D of the Penal Code (Amendment) (Sexual Offences) Act 2016, sexual intercourse is the penetration, to any extent, of the genitalia or anus of a person by an object manipulated by another person, except if that penetration is carried out for a lawful medical purpose or is otherwise authorised by law.

For the aggravating features, it appears to be only the age of 70 years for the accused and 6 years for the victim, a disparity of 64 years.

For mitigation and besides guilty plea at the first instance and no previous conviction, defence counsel submitted and asked the court to take into account in the sentence personal and family background. Accused is old with 70 years, no wife for more than 20 years and live with other people. He is experiencing weakness, lack of coordination when walking and no proper hearing, rely on his family members to look after him, lives in small leaf house and he felt sorry for what he had done.

The courts when determining the appropriate starting point applies the common principle of sentencing that sentence of the Defendant is based on the particular circumstances of the offending of the offence and notably, own merit, circumstances, the aggravating factors and the mitigating factors of the offending.

Further case authorities have put the starting point on the types of cases as there is no tariff fix by the Act of Parliament or law. Besides the standing point of 8 years with similar offence under the old provision as in Pana v Regina^[1] the case of Regina v Osiri^[2] with guilty plea on charge under section 139 (1) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 the starting point was 5 years for adult of 25 years and victim of 14 years difference of 14 years. With this case the accused is 70 years and the victim was 6 years an according Counsel Tinoni was just only the finger. It is my view that the appropriate starting point for the sentence is 6 years.

You have committed the offence to satisfy your own sexual desires in total disregard for the child’s dignity. She is a small child and worse so you have displayed your own attitude of “olo” (old man) and an act that will have impact on the life of this child.

Taking into account age disparity of 64 years, the impact to the future life of the small girl and noted the mitigation and personal and family background of the accused, I sentence the accused Jimmy Roges to 3 years imprisonment.

Orders

1. Accused Jimmy Roges is sentenced to 3 years imprisonment,
2. One year of the sentence is suspended on good behaviour for 2 years and to commence after the serving of two years imprisonment,
3. Any time spent in custody to be deducted from the sentence,
4. Right to Appeal.

THE COURT
Justice Leonard R Maina
Puisne Judge

^[1] [2013]SBCA 19
^[2] [2018]SBHC37