Regina v Fasua [2009] SBHC 54; HCSI-CRC 464 of 2007 (16 October 2009)

HIGH COURT OF SOLOMON ISLANDS
MWANESALUA, J

CRIMINAL CASE NO. 464 of 2007

REGINA

V

LESLIE FASUA

HEARD: 7 OCTOBER 2009
DELIVERED: 16 OCTOBER 2009

H. Kausimae for Crown
E. Cade for Accused

SENTENCING DECISION

1. MWANESALUA J: The accused, Leslie Fasua, is charged with six counts of defilement contrary, to section 14 2 (1) of the Penal Code ("the Code"). He pleaded guilty to all of them on arraignment and was convicted of the offences accordingly.

2. The accused lives in Honiara and is married with four children. A son aged nine years, a son aged seven years and twin sons aged three years. He lives in a house jointly owned by himself and another man, in Honiara. He is usually employed as a carpenter and earns about four hundred dollars a fortnight. He is the sole supporter of his wife and four children. He performs all of the heavy manual work to help support his family.

3. The victim lives in Honiara with her mother, who is employed as a house girl. The victim is the third and the last born child of her mother’s first marriage to a man who left the family in 1996, when the victim was still a baby. She does not attend school and is illerate.

4. In March or April 2006 the accused and the victim’s respective families returned to Adagege village. This was to enable the eligible members of their families to vote in the national election held in April 2006. The accused and the victim stayed at home for several months before returning to Honiara. The accused committed the offence charged in counts one to three in the information when they were in the village, on unknown dates in March, April and May 2006. On the other hand, he committed the offences charged in counts four to six at Honiara on unknown dates between May and June in 2007.

5. Section 142 (1) of the Code prohibits any person from having sexual intercourse with any girl under the age of thirteen years. This offence carries a maximum sentence of life imprisonment. But in practice, the imposition of this sentence is merely reserved for the worst case of its kind. In other instances depending upon their own factual basis, shorter terms may be imposed as permitted under section 24 (2) of the Code.

6. The victim was born on an unknown date in 1996. She would have been ten years old when the accused committed the first three offences in 2006; and then she would have been aged eleven years when he committed other three offences in 2007.

7. The facts relating the nature of assaults done by the accused to the victim are agreed by the prosecution and the defence in this case. They can be summarized as follows: The accused would approach the victim and ask her to accompany him to go to places to do certain things. While walking to such locations he would ask her for sex. He used no threat and violence to get her cooperation. They would then move to convenient places where he would ask her to lay down on the ground for him to have sex with her. Before he reached his climax, he would withdraw his penis from her vagina and ejaculate on her thigh. The accused gave the victim money for sex on the three occasions he had with her in Honiara. The victim sustained no injuries in her genitalia from the sexual assaults by the accused as confirmed by her medical report.

8. The type of offence committed by the accused is serious. That is reflected by the prescribed sentence of life imprisonment. Further, there are aggravating factors present in the accused’s offences. First, there is huge disparity between the age of the accused and the victim. The accused was aged 36 and 37 years and the victim was aged 10 and 11 years when the offences were committed. Second, the accused ejaculated on the victim’s thigh on all six occasions he had sex with her. That conduct would be humiliating to the victim, a child. He did not give his reasons for his conduct in that manner. That conduct would constitute child sexual abuse under the Convention to the Rights of the Child which this country is a party. Section 142 of the code would be a legislative measure within the terms of that Convention to protect girls under thirteen years of age from sexual abuse even though the Convention has yet to be enacted as part of the Law of Solomon Islands. And the third is that the accused repeated the offences.

9. The maximum sentence for defilement under Section 142 (I) the code is set by law. It is imprisonment for life. But the accused will only serve shorter sentences in this case. The level of sentences to be imposed on him are to reflect the nature of his assaults, the aggravating features, the consequences of such assaults to the victim and the mitigating factors taken into account in favour of the accused. The nature of offending, the aggravating features and the consequence to the victim have been alluded to above. The mitigating factors to be taken into account in favour of the accused in this case are these: He was of previous good character, earning income from his job as a carpenter to support his children, wife and himself; he cooperated with the police by admitting having sex with the victim; he pleaded guilty on the first opportunity. That saves time and expense of a trial, and, save the victim of the embarrassment of appearing as a witness at the trial; there was delay of twenty-seven months between his arrest and trial; the offences were committed with the cooperation of the victim, although consent is not a defence; and finally, the accused being a man of good character undergoing his first convictions and prison sentences are in themselves a substantial punishment.

10. In all the circumstances the accused is sentenced for his offences as follows:

Count 1 - 10 months imprisonment

Count 2 - 10 months imprisonment

Count 3 - 10 months imprisonment

Count 4 - 10 months imprisonment

Count 5 - 10 months imprisonment

Count 6 - 10 months imprisonment

All concurrent and 5 months to be suspend for 1 year. In the result the accused will only serve a term of 5 months in prison beginning from 7 October 2009. The accused is informed of right to appeal.

THE COURT