Regina v Malachi [2014] SBHC 10; HCSI-CRC 253 of 2012 (17 February 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 253 of 2012

REGINA

–V-

CLEMENT MALACHI

Date of Hearing : 7 February 2014
Date of Sentence : 17 February 2014

Mr. Aulanga for the Crown
Mr. Holara for the Defendant

SENTENCE

1. Mr. Clement Malachi, the Defendant, was charged with two counts of Attempted rape and one count of indecent assault under sections 138 and 141 (1) of the Penal Code respectively. The Defendant pleaded guilty to the Charges.
   
2. The agreed facts are that the victim was fourteen years old and the Defendant was 41 years old at the time when the Defendant committed the offences in 2012. The Defendant is the stepfather of the victim. In 2012, the Defendant and the Victim lived at Kukum in a dwelling house shared by the Defendant, his children, the victim's mother and the victim. On 31 January 2012, the Defendant attempted to rape the victim in their dwelling home at Kukum. He lay her down and put his penis to her vagina. He rubbed his penis on her vagina and attempted to penetrate her. On 1 February 2012, the Defendant indecently assaulted the victim. He called her to him and then held her breast, he sucked her breast and kissed her mouth and put his tongue into her mouth. On 2 February 2012 the Defendant again attempted to rape the victim in their dwelling home at Kukum. He instructed the Victim to take her clothes out and lay down. He held her breast and put his penis to her vagina. The mother of the Victim intervened and interrupted the Defendant. On 10 March 2012, the parties to this case reconciled when the Defendant's family compensated the Victim, the Victim's relatives and the wife. The compensation paid was $1,500.00 and two red money (Tafuliae).
   
3. It is submitted for the Prosecution that there are aggravating features in this case that need to be considered when sentencing the Defendant. Those features include the disparity between the age of the Defendant and the Victim. The relationship of the Defendant with the Victim as a Step Father creates a position of trust. The offences were committed at their dwelling home. And the commission of the offences within three consecutive days demonstrated the Defendant's uncaring attitude towards the victim as a step daughter, thus disregarded her youth and vulnerability.
   
4. The Defendant entered into two marriages. The first was in 1983 until his wife died in 2000. He had three children now adults from that marriage. He married his present wife in 2002. They have three children, a son and two daughters now ten years, eight years and six years old respectively. The victim is his wife's daughter before he was married to her.
   
5. The Defendant admitted that he was in breach of trust as a stepfather to the victim. He pleaded guilty at the first opportunity; that he was a person of good character; that his family had paid cash and tafuliae as a form of reconciliation and compensation.
   
6. There is obviously disparity between the age of the Defendant to the Victim. The Defendant was 41 years and victim was 14 years when the Defendant attempted to have sexual intercourse with the Victim without his consent. This occurred on two occasions. Further, there is breach of trust on the part of the Defendant as he is the stepfather of the victim. In that capacity, he should be the one to ensure the protection of the victim from sexual abuse in their dwelling home. In view of these aggravating circumstances, the proper sentences to be passed on the Defendant in relation to the attempted rape charges is three years imprisonment for each count and one year imprisonment for indecent assault.
   
7. However, there are mitigating circumstances to be taken into account in favour of the accused. They are that he pleaded to all the charges. That saves expenses to the Prosecution and Defence Solicitor. Further, it saves time for all the parties in this case including the court. The victim did not sustain any injuries in relation to the attempted rape charges. And that there was reconciliation and compensation paid by the relatives of the Defendant to the victim's relatives and the mother of the victim. It is clear from the evidence in this case that the offences were committed with the same victim and are closely connected in time.
   
8. The Defendant will accordingly be sentence as follows:
   

Count 1: Attempted rape – 2 years 6 months imprisonment.

Count 2: Indecent assault – 1 year imprisonment.

Count 3: Attempted rape – 2 years 6 months imprisonment.

The sentences for counts 1 and 3 are to be served concurrently.

The sentence for count 2 is to be served concurrently with the sentences to counts 1 and 3. The effective sentence to be served by the Defendant for attempted rape is 2 years 6 months beginning from 4 February 2012, (the date he was first placed in police custody). Order accordingly.

THE COURT