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R v B [2021] SBHC 109; HCSI-CRC 27 of 2020 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 27 of 2020

REGINA

V

MR. B

Date of Hearing: 26 August 2021
Date of Decision: 10 September 2021

Mrs Elma V Rizzu & Francisca Luza for the Crown
Mr. Allan Tinoni for the Defendant

SENTENCE

Bird PJ:

1. On the 5^th August 2021, the defendant, Mr B was acquitted of one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He was found guilty of a lesser charge of indecent act of a child under 15 years contrary to section 139 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. To protect the identity of the victim, the defendant in this case is merely referred to as Mr. B.
2. The long delay in delivering sentence in this case is that both the prosecution and the defence had failed to make sentencing submissions on the scheduled dates. The lawyer acting for the defendant had further delayed the filing of the defendant’s sentencing submission until the 1^st September 2021.
3. The maximum penalty codified under our laws for the offence that you have been convicted of is one of 7 years imprisonment. The victim in this case is a 1 year and 1 month old baby, a child of very tender age. You are the victim’s maternal uncle.
4. In sexual offences cases the Court of Appeal in the case of Mulele v DPP and Poini v DPP [1986] SBCA 6, [1985-1986] SILR 145 set out certain guidelines and factors that the courts must consider amongst other things in the sentencing of like offenders. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, it was submitted by counsel for the prosecution that the very young age of the victim is a serious aggravating feature against you. The victim was not even 2 years old when you sexually molested her. Justice Ward CJ, had considered the young age of the victim as a serious aggravating feature in the case of Regina v-Ligiau and Dori [1986] SBHC 15, [1985-1986] SILR 214.
6. Another aggravating feature in your case is the huge age disparity between you and the victim. At the time of offending, you were 20 years old and the victim was just 1 year and 1 month old. The age difference between you was 18 years and 11 months.
7. It was further submitted by the prosecution that there is an abuse of trust in your offending. You are the victim’s paternal uncle. You reside in the same house as the victim. In our culture, the victim would look upon you as a father figure. Your grandmother left the victim in your care and custody because she trusted you to take good care of the child. The trust placed upon you is enormous. Your action towards the victim is a clear show of abuse of your position of trust towards the victim.
8. On your behalf, Mr. Tinoni of counsel had submitted that you are a first offender. You have no previous conviction. You are now 22 years old and you are single. You attended formal education up to grade 4. You could not continue your education because of financial difficulties. You have been of assistance to your sister and members of your family through fishing for sale and consumption. I am nonetheless minded to note that an offender’s good character, although should not be ignored does not justify a substantial reduction of what would otherwise be the appropriate sentence. That was the view of the court in the case of Milberry v R [2002] EWCA Crim 2891 at paragraph 29.
9. It was also submitted on your behalf that you have a health condition that the court must take note of. A copy of your medical card was attached to the submissions filed on your behalf. It would have been of more assistance to this court had you and your lawyer obtained a recent medical report on your health condition. The last entry in your medical card was a visit to a clinic on 10/8/19. I have nonetheless noted that you were a known heart failure patient since you were about 3 to 4 years old.
10. I am also informed that you are a good candidate for rehabilitation. You were 20 years old at the time of offending. You are now 22 years old. You could have committed the offending due to your youthfulness and I sincerely hope that you have seen the consequences of your action and have learnt from it. I have also noted that you have continued to attend court for the past 2 years to date.
11. It is also submitted on your behalf that you have spent a total of 1 month and 3 days in pre-trial custody. I am also urged to take into account that period in sentencing you.
12. I am also urged by both counsel for the prosecution and defence that in sentencing, I must also take into account previous cases of the like nature that were dealt with by this court. In the case of R v Velo [2021] SBHC 31, HCSI-CRC 540 of 2019, the defendant had pleaded guilty to one count of having sexual intercourse with a child under 15 years contrary to section 139 (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of indecent act of a girl under 15 years contrary to section 139 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He was sentenced to 3 years imprisonment on count 1 and 2 years imprisonment on count 2 but suspended for 2 years after serving sentence on count 1.
13. In the case of R v Tata, the defendant pleaded guilty to one count of indecent act on a child under 15 years contrary to section 139 (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He was sentenced to 2 years imprisonment. The court took into account the pre-sentencing period of 11 months and 21 days and released him at the rising of the court.
14. In your case, you were 20 years old at the time of offending. I take into account your youthfulness and your prospect of rehabilitation. I also take into account your medical condition. You have also stated that you would reconcile with your family members on your return to the village. I urge you to facilitate that reconciliation so that your cordial family relationship could be mended. Upon those grounds, I hereby sentence you to 2 years imprisonment but wholly suspended for 2 years upon good behaviour.

Orders of the court

1. The defendant is sentenced to 2 years imprisonment but wholly suspended for 2 years on good behaviour.
2. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge