Regina v AB [2010] SBHC 89; CRC55.2009 (24 March 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

Regina
represented by J. Suika

V

AB
represented by M. Waqavonovono

Date of hearing: 3 – 5 March 2010
Date of decision: 5 March 2010
Date of sentence: 24 March 2010

1. AB, now a young person, was charged with rape alleged to have been committed in September 2006. At that time he was a child within the definition contained in the Juvenile Offender Act [Cap 14]. For that reason the court was closed to the public during the hearing of this matter.
   
2. The victim of the rape was said to be VM. Both the accused and the complainant were working with or for their respective families in an agricultural area, cutting or preparing copra. They met fortuitously and the accused called his victim over from her party in full view of everyone there through his friend.
   
3. There is no issue within this trial that these two has sexual intercourse, so much is admitted by AB. Intercourse took place between these two in the accused's family copra drier. The issue in this trial is whether that intercourse took place with or without VM's consent.
   
4. Evidence in that regard was heard from VM in person. Other evidence called by the Crown during the trial established only the circumstances surrounding the movements of the two participants and not the actual issue of consent.
   
5. The evidence of consent or lack thereof comes from VM and from the unsworn statement of AB given to the court when called upon in his defence.
   
6. From that evidence it is clear that there are some inconsistencies that can be identified within the evidence of VM, but not such inconsistencies that it could be said that her evidence cannot be relied upon. It would be wrong, in the view of this court, to describe here evidence as 'riddled with inconsistency' as defence counsel has submitted. She was entirely consistent about the issue of consent and was not moved from that evidence during cross examination. She was frank in her answers, being prepared to admit when asked that AB had said to her why he wanted her to climb up into the copra drier on this afternoon.
   
7. When VM did climb into the copra drier at the request of AB she did know that he wanted her to climb into the drier so that he could have sexual intercourse with her. It may be, I do not know, that at that time she may have been inclined to agree to that intercourse, for she did indeed climb into the copra drier at his invitation.
   
8. What is clear from the evidence, though, is that prior to sexual intercourse taking place, she had come to the decision that it should not take place, and attempted in her own way to communicate this to AB by her actions. That AB continued along his intended path without the continued consent of VM is where AB crossed the line from lawful into unlawful behaviour. Once she had indicated to him that she no longer wished to participate in sexual intercourse with him, it was his duty to stop.
   
9. With children and young people involved, interpreting these signals is most difficult for them, hence the advice often given that sexual intercourse should not be considered until a much later age.
   
10. On the basis of the evidence in this trial the Court is satisfied that the Crown have proved beyond reasonable doubt that the accused had sexual intercourse with VM without her consent and he is accordingly convicted of that crime.
    
11. Following his conviction for that offence, a social inquiry report has been considered together with submission on sentence from both counsel. In sentencing the court will consider the sentencing options available in respect of a child on 13 years and some months at the time of the offence. The Crown concedes that the offender must be dealt with as at that age when the offence was committed.
    
12. Discussion took place between the offender, his family and counsel as to how customary reconciliation may take place as between these two families, for as at the date of hearing that has not yet taken place. The court was told however that the offender could return to his previous school to continue with his education.
    
13. Being satisfied that suitable arrangements have been put in place for a customary reconciliation to take place, the court is prepared to sentence AB to a sentence which reflects not only his young age, but also that this reconciliation is to take place, and that the young victim may have indicated some willingness at an early stage of the afternoon. Also taken into account is that between the offence being committed and the date of sentencing more than three and one half years have elapsed.
    
14. Three and one half years is a long period of time in anyone's life. In the life of a person who is now not even eighteen years of age it is an even more significant period. I take into account that which has taken place since the offence was committed and how that elapsed time has had an effect on AB.
    
15. Children and young people should be dealt with quickly after an allegation comes up. With that in mind I draw the attention of magistrates to the provisions of section 9 of the Juvenile Offenders Act [Cap 14]. Section 9 (10) provides for a juvenile court to deal with any alleged offence other than homicide. Whilst that provision is no more than permissive, magistrates should not be committing children or young people for trial in the High Court without having a good reason to do so.
    
16. There is no need, for example, to commit for trial, just because the maximum penalty is beyond a magistrates' jurisdiction. Jurisdiction is conferred, so it seems to me, by section 9 itself. There may be occasions when it is right to send a child or young person for trial in the High Court, but there will be more cases better dealt with in the Juvenile Court than in the High Court. The position may be different where the child or young person is jointly charged with an adult. There it may be more useful to keep the two or more alleged offenders together for trial, but where there is no adult involved, it is better for all that the juvenile court deals with the matter using its powers under the Cap 14.
    
17. AB is ordered to enter into his bond to appear if called upon for sentence to be imposed on him. He will only be called upon for sentence to be passed upon him in the event that customary reconciliation does not take place as I have been assured it will or in the event that he gets into any further trouble. In the event that he does not get into further trouble then all of this will be over when he has his nineteenth birthday.
    

Goldsbrough J

The accused and the victim in this case were either children or young people and therefore in the published version of this judgment their names have been replaced with 'AB' for the accused and 'VM' for the victim. The original judgment remains sealed in the High Court file. Only this version should be used by counsel or the Court as a precedent.