Regina v Jeffrey [2012] SBHC 62; HCSI-CRC 187 of 2010 (23 March 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number: 187/2010

Regina v. Phobro Edward JEFFREY

Hearing: 21 March 2012

Sentence: 23 March 2012

For Prosecution: L. Fineanganofo (Ms.) with H. Kausimae

For Defence: B. Hiele

Palmer J.:

The defendant, Jeffrey Edward Phobro has been convicted on his guilty plea to a charge of defilement contrary to section 143(1)(a) of the Penal Code. This charge carries a maximum sentence of five years imprisonment.

He had been initially charged with rape, a more serious offence but on the date scheduled for his trial, the charge of rape was withdrawn and substituted with defilement, a lesser offence.

He pleaded guilty to the charge on arraignment, at the earliest available opportunity and credit is given for this. He has no previous convictions at date of trial and so due credit is also given although the court is aware that there is another separate charge of rape against him in relation to another victim. I disregard that however in considering sentence in this matter.

No violence, force or threats were involved and that the victim suffered no injury. I note that the facts agreed to show the victim went willingly to meet the defendant at an agreed isolated place and agreed to have sex with him when asked. The matter did not become known until some months later when news about the incident eventually came to the attention of the mother who then reported the matter to the police in January 2010.

On the other hand, it is important to bear in mind that the law protects young girls not only from this type of activity by older men like the defendant but also from themselves. This is all the more important when young girls like the victim in this case, who was a little over 13 years old at the time of the incident and by law is called a "child", must be protected from this type of activity and preying offender. The law places the burden of responsibility on the defendant once he is convicted of this type of offence; that is why consent is not an issue in this type of offence. It is complete once the act and age of the victim have been proven.

As usual the court must bear in mind the prevalence of this type of offence in the community, the revulsion of the community, the sanctity of marriage and value placed on it and young children, the need to protect them in our society, so that men like this defendant do not see them as sex objects but as precious souls who will grow up to become useful members of the community in due course. The courts therefore have duty to ensure there is sufficient deterrence in the community through the type of sentences that are imposed. The courts in this country must not resile from their duties and impose sentences that are mercifully weak.

An immediate custodial sentence for this type of offence is inevitable; the length or period of incarceration will vary in accordance with the circumstances of each case and offender and whether aggravating factors exist.

While this may be a one off incident, it cannot be described as something done on the spur of the moment. The defendant deliberately went out of his way to lure the victim to an isolated spot to commit the offence. He is married, with two small children. Mr. Hiele points out that his family have struggled to look after themselves since this matter has been reported to the police and while the court sympathizes with the situation, this was brought about through his own actions.

The victim was known to him as a relative, a cousin. Both were from the same village and so he would have known that she was only a young child. In custom he would be in a position of trust and responsibility to her and would have been obliged to look after her.

A number of cases have been referred to for comparison purposes. In Regina v. Rasini and Others^[1], sentences of 6 months - 9 months were imposed with three months and four months respectively suspended for one year. The effective sentences therefore were three months and five months respectively. The major mitigating factor was that the court found the victim was as much the initiator of the offences as the defendants and in some instances gave much of the lead towards the sexual encounters with the defendants. The court felt compelled to have her bound over as well.

In Regina v. Fasua^[2], the offence with which the defendant was charged with was much more serious than this case, the victim being below the age of 13 years when the first offences were committed. The age disparity was also huge; he was about 36 and 37 years when the offences were committed. I am unable to determine any particular mitigating factor in this case other than the normal mitigating factors of a guilty plea, cooperating with police and no previous convictions. He was sentenced to 10 months with 5 months suspended.

In Zale v. Regina^[3] the appellant was sentenced in the Magistrates' Court to 9 months for three counts of defilement and sentenced to a total of 27 months. On appeal this was reduced to 3 months on each count and made consecutive. The total sentence imposed was 9 months. The main mitigating factor for the reduction of the sentence was delay.

Each case must be determined on its own merits. I take into account all the relevant matters referred to in his mitigation and impose a sentence of 18 months. The period spent in custody is to be taken into account.

Orders of the Court:

1. Enter conviction on his guilty plea.
2. Impose sentence of 18 months, with the period spent in custody to be taken into account.
   

The Court.

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^[1] [1991] SBHC 27; CRC 025 of 1990
^[2] [2009] SBHC 54 HCSI-CRC 464 of 2007 (16 October 2009)
^[3] [2005] SBHC 54; HCSI-CRC 495 (30 March 2005)