Regina v A'aron [1999] SBHC 128; HC-CRC 014 of 1998 (4 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 14 of 1998

REGINA

V

CRAIG A’ARON

High Court of Solomon Islands
(KABUI, J)

Hearing: 3rd November, 1999 at Gizo
Judgment: 4th November, 1999 at Gizo

Chief Inspector Taro for the DPP
S. Watt for the Accused

SENTENCE

(F.O. Kabui, J): You, Craig A’aron, were charged with having unlawful sexual intercourse with Anita Simon a girl under 13 years of age on 23^rd February 1996 at Titiana Village near Gizo in the Western Province. You were charged under section 134(1) of the Penal Code Act (Cap. 26) (now section 142(1) of the Penal Code Act). This offence is called “defilement” in the language of the criminal law. In simple terms, it is the abusing of females who are of the age of 13 years and below that age by males by way of having sexual intercourse with them even with their consent. The penalty for this offence under section 142(1) of the Penal Code Act is imprisonment for life. You pleaded guilty before me for this offence. That is to say, you admitted committing the offence on the date alleged, upon Anita Simon a girl of 11 years 10 months of age. I therefore convicted you of this offence on your own plea. I entered on the Court record a plea of guilty against you. It is now my duty to consider what sort of sentence I should impose upon you for this offence. The maximum penalty of imprisonment for life stipulated by section 142(1) of the Penal Code Act for this offence speaks for itself. That is to say, the offence you committed is a very serious offence indeed. Whilst this section does speak in mandatory terms it must however be read and understood subject to section 24(2) of the Penal Code which states:-

“(1) ........................................

(2) A person liable to imprisonment for life or any other period may be sentenced for any shorter term.
(3) .......................................
(4) ....................................
(5) ....................................”

I am therefore able to consider a term of sentence less than imprisonment for life in your case. Your lawyer, Mr. Watt urged me to consider a more lenient sentence in your case. He gave me useful guidance as to the principles I should apply in arriving at a sentence appropriate for your case. He pointed out to me that I should consider these matters in your favour:-

(a) You are a first offender. This is important. You have not offended since the date of the offence you committed;

(b) Whilst you are a little older than Anita Simon who was at that time was almost 12 years of age, the age gap between both of you is not too great. That is to say, you were both young persons at the time of the offence;

(c) You held no position of trust towards Anita Simon. That is to say, you were not her father, brother, uncle, teacher, priest, doctor, lawyer or a guardian;

(d) What you did to Anita Simon does not result in her being pregnant with a child so as to affect her physical and mental health;

(e) You and Anita Simon met up at the video place at Titiana and had sexual intercourse after she had asked and you had given her one dollar she had asked for. It was a “chance” meeting. You did not plan it. You used no force upon Anita Simon nor any form of coercion upon her. In fact, Anita Simon was an active accomplice in what happened between both of you. In fact, she was to be blamed also for what happened;

(f) You co-operated with the Police in their investigation of this offence. You also admitted to the Police that you committed the offence in you caution statement to the Police on 18^th November, 1996. You have shown remorse by pleading guilty to this offence, and saved Anita Simon from giving evidence against you and being cross-examined in the witness box, an experience to be avoided for young persons such as Anita Simon;

(g) You have one child and are about to marry the mother of your child. You are also employed in the timber industry in a family business. A custodial sentence would be a step backward in this regard. That is to say, you are about to be a father and provider for a young family at your home village. I would add that marriage in a Melanesian society is an event that stabilises a young man in society. It locks him into responsibility and makes him a mature person psychologically amongst his kinsmen. Society expects him to be this and must be to be considered a good man in his society;

(h) Your case has been hanging over your head for about 3 years through no fault of yours;

(i) The attitude of the Gilbertese community generally towards this offence is not that serious as opposed to other communities in Solomon Islands. Loss of virginity by a Gilbertese girl such as Anita Simon is of significance only at the time of marriage. It causes “great shame” to the parents of the girl who is marrying. It means the girl is faulty because she is not a virgin. It reflects upon her parents for being too lax in the up-bringing of their girl.

In support of your case, your lawyer Mr. Watt cited a number of case’s decided in this jurisdiction on sentencing in defilement cases such as in your case. These cases are Mulele v DPP, Poini DPP (CA) [1985/86] S.I.L.R. 145, Berekame v DPP (CA) 1985/86 S.I.L.R. 272, R v Ligian and Dori [1985/86] S.I.L.R 214, R v Peter Taku (Civil Case No. 3 of 1995) (unreported). Bati v DPP (CA) [1985/86] S.I.L.R. 268, Dalo v R (1987) S.I.L.R. 43 R v Naptali Mule (Civil Case No. 24 of 1991) and R v Kaboma & Others (Civil Case No. 12 of 1992) (unreported). Your lawyer, Mr. Watt also cited relevant passages from the text Principles of Sentencing, 2^nd Edition, 1979 by D. A. Thomas and a relevant passage at page 240 from Text book of Criminal Law, 2^nd Edition, 1983 by Glanville Williams. These cases and the relevant principles cited by your lawyer, Mr. Watt are useful to me in that they help me to narrow down my focus on what level of sentence I should impose upon you. I am most grateful for your lawyer’s effort in helping me to reach a just decision in your case. However, the offence you committed still remains a very serious offence. Young girls must still be protected against sexual abuse committed upon them by males of all ages. This is the bottom line policy of the Courts. It is however within this policy that justice begs for mercy. It means that each case must be decided according to its own facts and circumstances to find where justice is to be applied in each case. In your case, I have taken into account all the matters raised by your lawyer, Mr. Watt, for my consideration. My assessment of you is that at the time you committed this offence you were young and free to mix with friends and others without any sense of restriction within a Gilbertese community at Titiana. You were asked by Anita Simon for one dollar for sex and you agreed. You did not think twice and you had sex with her without the slightest inkling that you were committing an offence under the criminal law of Solomon Islands. This of course is not a defence to plead ignorance of the law. It was bad luck on your part. It was unfortunate for you to get caught by the conduct of Anita Simon on that day. However, in your caution statement to the Police you said you had sex with Anita Simon twice. This offence was repeated once more on another date. You admitted in your caution statement to the Police that Anita Simon’s pubic hair had not fully grown nor were her breasts fully developed. These physical features did point to the fact that she was a small girl as a matter of common sense. However, the fact that she was not a virgin was a matter, in my view, capable of confusing you. It may be that her father had already abused her before you did. However, this does not in my view make you a hardened criminal. Everyone makes mistakes in life. Some are caught. Some are never and will never be caught by the law. You were found out and the law caught up with you. You must therefore be punished. This is what the law says must be done. This is a case where I must impose a custodial sentence to demonstrate the seriousness of this offence and to reaffirm to the community that the criminal law frowns upon the abuse of young girls in Solomon Islands. This is obviously the intention of Parliament when it stipulates imprisonment for life as a penalty for this offence. In my view, you must be sent to prison for 9 month for this offence. However, your lawyer, Mr. Watt, suggested to me that any custodian sentence I impose upon you should be suspended in your case for the reasons he advanced in your favour. In other words, your lawyer, Mr. Watt, urged me that justice in your case lie in a suspended sentence. I have the power to do this under section 44 of the Penal Code Act (Cap. 26). I am prepared to do this in your case. I would therefore suspend this sentence of 9 months imprisonment I impose upon you under section 44 of the Penal Code Act above for 12 months. This means that you will not go to prison from the rising of the court but if you during the period of 12 months you commit another offence punishable by a penalty of imprisonment, this sentence of 9 months imprisonment may be re-activated by the Court under section 45 of the Penal Code Act above. This means the Court that deals with any subsequent offence committed by you within the 12 months period from the rising of the Court in which you are convicted for that subsequent offence may order that you go to prison for 9 months for this offence. It is therefore important that you commit no serious offence during the next 12 months to stay away from prison. I feel this is where justice lies in your case. Section 44(6) of the Penal Code Act above requires me to explain to you in ordinary language your liability under section 45 of the Penal Code Act above. I will do so now in Pidgin English which is the common media of communication in Solomon Islands. I have therefore complied with section 44(6) of the Penal Code Act above. As required by section 44(1) of the Penal Code Act, I order that the sentence of 9 months imprisonment I impose on you for this offence shall be suspended for 12 months from the rising of this Court. You are of course entitled to appeal against this sentence.

F. O. Kabui
Judge