Regina v Phobro [2013] SBHC 8; HCSI-CRC 408 of 2011 (21 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 408 of 2011

REGINA

v

EDWARD JEFFREY PHOBRO

Hearing Date: 18 February 2013
Sentence Delivered: 21 February 2013

Coram: Pallaras, J.
Crown: Ms. L. Fineanganofo
Defence: Mr. L. Hite

Sentence:
(Pallaras J)

1. The offence of defilement of a girl between thirteen and fifteen years of age is proscribed by section 143 of the Penal Code (Cap.261). It provides for a maximum penalty upon conviction of five years imprisonment. It is clear that in these times such a sentencing range is inappropriate and severely limits the sentencing discretion of the Court for cases such as this.
   
2. You have pleaded guilty to one count of defilement and as was submitted on your behalf, you will be given the benefit of your plea. By adopting this course, you have avoided the time and public expense of a trial and have spared the young Complainant the trauma of giving evidence in court.
   
3. I am told by the prosecution that you approached the Complainant while she was at school and told her to meet you later at a place near her village. You had told her that you would give her what was described as a "custom blessing".
   
4. I was told, in somewhat confusing terms by the Prosecution, that the purpose of this was to protect the Complainant. When pressed, however, the prosecution were not able to say from whom the Complainant was being protected.
   
5. I was then told that the "blessing" was to ensure that a particular male person would think of the Complainant and that it would also ensure that she would get married – whether to that particular person or not was also not made clear.
   
6. The Prosecutor then informed me that the Complainant willingly had sexual intercourse with the accused, undressing herself and submitting to the accused without any threat or force being exercised against her. After I raised the issue of whether the consent was an informed consent, the prosecutor did not allege that the consent was obtained as a result of the claims of the accused and indicated that I should proceed on the basis that the sexual intercourse was completely consensual.
   
7. It was therefore accepted by the prosecutor and, apparently, by the Director of Public Prosecutions, that the consent was freely given.
   
8. While I have serious misgivings that this was so, in the absence of any submissions by the Crown to the contrary and after being informed that these issues were considered by the Prosecutor and by the Director, since I have not had the benefit of seeing the Complainant or hearing what she had to say, I accepted the plea as offered.
   
9. I commented when convicting the accused and repeat here, that this type of offending might well be regarded far more seriously by the law than the current penalty suggests. It is clear that an adult male who prevails upon a very young girl to have sex with him, with for example, a promise to deliver via a favourable spell a happy marriage, may well be committing the offence of rape and not defilement. Prosecutors should be on guard against regarding consent given in this way as amounting to a genuine and informed consent for the purposes of determining which offence has been committed.
   
10. In this case, there is even more reason for concern as I am informed that the accused has a previous conviction for defilement in circumstances remarkably similar to the present case. For that offence, he was sentenced to 18 months imprisonment. Again this sentence highlights the need for the Law Reform Commission to review the law in relation to the offence of defilement to ensure that it meets contemporary expectations of the community and of the Court, particularly when the offender repeats his crime.
    
11. In the present case, the Complainant was 13 years of age. The accused was her uncle, was aged about 31 years old and, as discussed, had a prior conviction for defilement. In addition to the very young age of the Complainant, the significant difference between the ages of the accused and the Complainant, the serious breach of the position of trust held by the accused as the uncle of the Complainant and the element of pre-planning accompanying the crime are all features which significantly aggravate this offence making it a very serious case of its type.
    
12. I am told that the accused is married with two children, has limited education and is employed in subsistence farming and fishing. I am asked to make any sentence imposed concurrent with the sentence currently being served for the previous offence.
    
13. It is well established that in cases involving sexual assaults, matters personal to an accused are likely to have less impact on the sentence than with other offences and although I accept all of the matters put to me on behalf of the accused, there is in truth very little in those matters that can properly be said to be mitigatory.
14. Given the several very serious aggravating features of this case, I am of the view that the sentence should be close to the maximum provided by law. While the accused is not to be punished a second time for his first crime of defilement, he cannot receive the benefit of being considered as a person with no previous offending.
    
15. I cannot accept the submission that it would be appropriate to pass a concurrent sentence. It plainly is not appropriate. The offences occurred approximately two months apart, at different places with different victims. He is, however, to be given credit for his plea of guilty.
    
16. This is an offence committed by a man who preys on young children to satisfy his own perverse desires. He represents a real danger to the community, especially to the population of young females in our community. There are fewer types of offences in which the protection of the community plays a greater role and where the need to impose a sentence which sends a clear message of general deterrence is needed. From his history, it is also plain that there is a need for specific deterrence for this accused lest he think that his outrageous conduct will ever be tolerated or accepted by decent Solomon Islanders and this Court.
    
17. Considering all of these factors, I would have imposed a sentence of imprisonment of 4½ years but will reduce that by 1 year to take into account his guilty plea. The accused is sentenced to imprisonment for a period of 3½ years, such term to commence at the expiration of any sentence currently being served. He is to be given credit for 41 days already spent in custody for this offence.
    

THE COURT