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R v Roy [2024] SBHC 17; HCSI-CRC 44 of 2022 (15 February 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 44 of 2022

REX

V

JUNIOR ROY

Date of Hearing: 13 February 2024
Date of Sentence: 15 February 2024

Kelesi A & Tonowane N for the Crown
Aisa T for the defendant

Sentence

Maina PJ:

1. You, Defendant Junior Roy pleaded guilty on one count of amended information on sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal Code (Cap 26) (Amendment (Sexual offences) Act 2016.
2. Upon the own plea of guilty you were accordingly convicted on the charge of rape.

Summary of Agreed Facts

3. The Crown and Defence Counsels provided the following as agreed facts of the case.
4. At the time of the incident the accused was Junior Roy was 20 years old and Complainant Margaret Herisi was 13 years old who is known as someone who is hyperactive or best describe as lunatic.
5. This incident happened on 29 April 2021, at about 7:00pm, when the accused was returning from zone 1 to zone 5 in Pangoe Village. On his way he met Pitaqae, Rosevita, and Eunice along the road at zone 5 and they told him that the complainant had asked for him, and she was at the house.
6. At the road, they forced him to go and see the complainant and they made dirty jokes to him with a torch light (4-inch length) that he was holding in his hands at the time.
7. Accused then went to the house where the complainant was in with the three people. They three stayed in the living room when the accused went to the bedroom but the bedroom door was locked and he stood at the door and called her name.
8. The Complainant responded and opened the door and accused went and sat her on the bed. The accused then asked if he could have sex with her. She did not say anything but follow what the accused asked her to do.
9. Due to what or rumours the accused heard about her that she had several sexual partners, he had second thoughts otherwise he contracted disease from the Complainant.
10. The accused then asked her if he could finger her with the torch and she agreed to him. He then proceeded and inserted or pushed the torch into her vagina. He pushed the torch into her vagina for less than 2 minutes.
11. After the incident, the accused came out from the room and again stood with the three people who went with him inside the living room. Later he left them and went on to the market.
12. A registered nurse of Pangoe Clinic had medically examine the Complainant on the next day after the incident and noted the Complainant’s vagina was swollen, both vagina lips swollen with irritation on the skin of labia minor and majora. There were injuries to the vaginal walls and cervices’
13. The Complainant was medically examine on the next day by a register nurse of Pangoe Clinic. The nurse noted that the Complainant’s vagina was swollen, both vagina lips swollen with irritation on the skin of labia minor and majora. There were injuries to the vaginal walls and cervices.
14. Accused was arrested on 2 May 2021 and transported over to Gizo and kept at Gizo Police Custody on 7^th – 9^th May 2021 until he was remanded at Gizo Correctional Facility on 10 May 2021 until was released 16 July 2021 on bail. He was further remanded on 10 July 2023 at Gizo Correctional Facility Services until today.
15. Defendant had spent 9 months and 12 days in custody.

Maximum Penalty

16. The maximum penalty for the offence of sexual intercourse with a child under 15 years of age contrary to section 139 (1) (b) of the Penal Code (Cap 26) (Amendment (Sexual offences) Act 2016 is 15 years imprisonment.

The starting Point

17. For the starting point the Crown in their submission referred to the case of Pana v Regina^[1] when the Court of Appeal said at paragraph [15]:
    • “(15) Although the age of rape victim is always a factor, we consider that when the victim is a child below the age of consent that should always bring the starting point up to eight years”
18. Crown counsels also cited in the case of Rex V Sinatau^[2] when the Court of Appeal held and reaffirmed the starting point of 8 years.
19. Further with the sentencing of the accused both counsels in the submissions referred to the starting point of rape or sexual intercourse without consent in the recent case of Bade v R^[3] when the Court of Appeal increased the starting point of rape case when stated at Para 35:
    • “35.Having considered all of these matters, we consider the starting point for a contested rape should now be eight years imprisonment. Where there is a guilty plea it should be six years. Even a peremptory reading of the authorities we have referred to above will show that the aggravating uplifts will frequently take starting points into the 12 year and above range. That is an appropriate starting point to condemn the worst of this type of offending”.
20. The case cited above refers to what is stated for rape cases with higher maximum penalty however with this offence, the maximum penalty is 15 years imprisonment of sexual intercourse with a child under 15 years of age.
21. The format or principles of sentencing have been reiterated in the case of Tii v Regina^[4] when the Court of Appeal stated that a sentence should be crafted to attain the goal of punishment, deterrence and rehabilitation. Both counsels submits to the court and agreed the appropriate starting point should be 8 years. With the circumstances and the vulnerability and conditions of the victim, it is my view that the starting point for this accused should be 8 years.

Mitigation

22. Defendant Junior Roy was a young boy and 20 years old at the time of the offence. He has pleaded guilty to the charge and has no previous conviction.
23. Defence counsel Aisa submits that the plea of guilty on his part shows his remorseful for his action. Counsel Aisa also refers to the Pana v Regina^[5] that served of young complainant from distress of relieve of trauma at the witness box. She said the lesser extent is the pragmatic fact that saves the court’s time and expenses.

Aggravating factors

24. Complainant was 13 years old at the time of the offence and described in the agreed facts as lunatic. To what extent both counsels did not specify to the court.
25. The age difference or disparity age of 7 years
26. The injuries to the vagina or sustained by the victim and noted by the nurse at the Pangoe Clinic that her both vagina lips was swollen with irritation of the skill of labia minor and major, the injuries to the vaginal wall and cervices.
27. Victim was hyperactive or lunatic person, the accused took an advantage of her vulnerability on body and mind to commit the offending on her.
28. The use of weapon, a torchlight to penetrate in the victim’s vagina.

The Sentence

29. With the plea of guilty, conviction on the charge and starting point has been fixed it is now for the court to determine the appropriate sentence for this accused.
30. I give you credit to the guilty plea, no previous conviction and they are taken into account in the sentence. Among them is also the delay in the prosecution of this case.
31. It is essential to consider the condition of the victim as both counsels in the agreed facts described her as “hyperactive or best describe as lunatic”. In Solomon Islands’ Pidgin English, it would be “Ka karange” and I will take it up in this sentence in that sense. I would conclude that the victim was sick or vulnerable and any act of her or what she done cannot be said of her good mind. Otherwise they were not intended or from her good mind but she did so.
32. You used a torched light and pushed in the vagina that caused injuries to the victim your counsel said it was a violent sexual behaviour or act on your part. That would create or rise the seriousness of your case.
33. I have considered the entire case and taking into account the facts, mitigation and aggravating features, notably the vulnerable position of the victim and used a weapon to penetrate in the victim’s vagina.
34. By common knowledge, the vagina should be for the penis however, you use an object and that raises the seriousness of what you did to the victim. Such person as you deserve deterrence sentence and or any other person who may think to involve or undertake such act of sexual intercourse. I am satisfied and sentence you Junior Roy to 9 years imprisonment.

Orders of the Court

1. Defendant Junior Roy is sentence to 9 years imprisonment.
2. Any time spend in custody to be deducted from this sentence.
3. No further orders

THE COURT
Hon Justice Leonard R Maina
Puisne Judge

^[1] [2013] SBCA 18; SICOA CRAC 13 of 2013 (8^th November 2013)
^[2] SICOA 9027 of 2023
^[3] [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023)
^[4] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
^[5] [2013] SBCA 19; SICOA-CRAC 13 of 2023 (8 Nov 2013)