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R v Ramaia [2021] SBHC 96; HCSI-CRC 97 of 2019 (24 July 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 97 of 2019

REGINA

V

TRULYN PENIEL RAMAIA

Date of Hearing: 23 July 2021
Date of Sentence: 24 July 2021

Mr. A Meioko for the Crown
Mr. I Waroka for the Defendant

Palmer CJ.

1. You have been charged with the offence of persistent sexual abuse of a child under 15 years contrary to section 142 (2) of the Penal Code as read with section 139 of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 ("the Amendment Act 2016"). This is a new offence enacted under the Amendment Act 2016 and carries a maximum penalty of life imprisonment.
2. Subsection 142 (2) provides:
   • "A person commits an offence if the person engages in an act in relation to a particular child that constitutes a sexual offence on 3 or more separate occasions occurring on separate days during any period."
3. The maximum sentence of life imprisonment reflects the level of seriousness and concern with which this type of offence is considered and viewed in the community and the need to protect young girls from other men and themselves. The protection of young children is the focus of this type of legislation and the law provides in the case of young children that consent is not a defence. Sexual intercourse with a child below the age of 15 years does not require lack of consent as an ingredient of the offence. This is an established principle in the law, that a child below the age of 15 years cannot consent and so the fact of sexual intercourse and the child’s age is sufficient to found a conviction; that is not disputed in this case.
4. The courts in the country have repeatedly stated that those who commit this type of offences should expect to be sent to prison. Each case however is to be treated separately on its merits and an appropriate sentence imposed.
5. It is of grave concern that this type of offending is becoming more prevalent and while the courts have a duty to ensure there is sufficient general and specific deterrence in the community by the type of sentences that are imposed, it requires the concerted and collaborative effort of all stakeholders in the community to address this deluge in sexual offending against young girls. It is shameful that this type of offending is becoming commonplace.
6. The starting point in this type of case without any aggravating or mitigating features, in a non-contested case is eight years^[1]. Where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
7. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the aggravating feature in this case, that of the age of the victim at 14 years.
8. Another aggravating feature in this case is that of repetition in the offending. There were three instances of sexual abuse in the offending put together under this one offence. This offence targets the repeated nature of offending and while there may have been consent, it is still an abuse.
9. A third aggravating feature is the disparity of seven years in the age of the defendant at 21 years old as opposed to the age of the victim at 14 years. As an older person, there is an expectation of being responsible and accountable in protecting young girls from this type of offence. He has failed to exercise restraint and responsibility in the circumstances of this case. As well he was already in a de facto relationship with another woman and so should have known better in not seducing the victim.
10. In mitigation, Mr. Waroka highlighted his age at 21 and that the sexual offending occurred with the consent of the victim, although that is no defence. It is important to keep in mind that this type of offence was created for this very type of situation to steer away and deter such men, young and old, from engaging in this type of illicit sexual relationship and activity with young and vulnerable girls, introducing them into sexual activity at such a young and tender age and corrupting their nature.
11. Sentences imposed in these type of offending must reflect the level of culpability and accountability based on the circumstances of offending and the offender.
12. I give credit for a guilty plea, which has saved court time and expense, and the complainant from having to give evidence under oath in court. This is also consistent with remorse.
13. The agreed facts disclose three instances of sexual contact, the first one, non-sexual involving touching, kissing and sucking of the victim's breasts and the remaining two each involving sexual intercourse.
14. The facts disclose that the defendant had contacted the victim and seduced her into a relationship and committed the offences as charged.
15. I note he is a first offender and has not been in trouble with the law previously and give credit for that as well. I note that he has cooperated with the police.
16. He is currently in a de facto relationship and plans to get married. He now has two young children, one is 3 years old and the other 2 months old.
17. He has been involved with the CAUSE Project in assisting to have solar lights installed as part of the rural community projects. He is also a member of the Christian Revival Church and has involved himself in community projects.
18. I also note there has been some delay in this case but that is balanced with the fact that he has been on bail for most of that time as well.
19. It is equally pertinent to note on the other hand that in sexual offences as a whole, and rape and attempted rape in particular matters mitigation personal to the offender will have less effect on the sentence than in most other serious crimes^[2]. In R. v. Phoboro^[3], Pallaras J. also remarked:
    • "... it is well established that in cases of sexual assaults, matters personal to an accused are likely to have less impact on the sentence than with other serious offences."
20. His mitigating factors accordingly need to be balanced with the aggravating features in this case and an appropriate sentence imposed.
21. Taking into account his guilty plea, that he is a first offender, is remorseful, with prospects of rehabilitation fairly good, this is to be reduced by 3 years and another year for delay, leaving a total sentence of 4 years to be served. The period spent in pre-trial custody is to be deducted from the sentence.

Orders of the Court:

1. Enter conviction for the offence of persistent sexual abuse of a child under 15 years contrary to section 142(2) of the Penal Code as read with section 139 of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Impose sentence of four years, the period spent in custody is to be deducted from the sentence.

The Court.

^[1] See Pana v. Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).
^[2] See comments of CJ Ward in R v Ligiau [1985/1986] SILR 214.
^[3] [2013] SBHC 8; para. 13 per Pallaras J.