R v Tabaki [2018] SBHC 106; HCSI-CRC 143 of 2011 (3 December 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tabaki
Citation:
Date of decision:	3 December 2018
Parties:	Regina v Andrew Tabaki
Date of hearing:	26 November 2018
Court file number(s):	Criminal Case No. 143 of 2011
Jurisdiction:	Criminal
Place of delivery:	Gizo High Court Circuit
Judge(s):	Maina PJ
On appeal from:
Order:	The accused Andrew Tabaki is sentence to 3 years imprisonment One year of the sentence is suspended for one year
Representation:	Ms. F Fakarii & Mr I Kekou for the Prosecution Mr C Ruele & B Ifuto’o for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 143 of 2011

REGINA

v

ANDREW TABAKI
Accused

Date of Hearing: 26 November 2018
Date of Judgment: 3 December 2018

Ms. F Fakarii & Mr I Kekou for the Prosecution
Mr C Ruele & B Ifuto’o for the Accused

SENTENCE

Introduction

Maina PJ The accused Andrew Tabaki was charged with one count of defilement of a girl between 13 years and 15 years contrary to section 143(1) (a) of the Penal Code. At the arraignment, he pleaded guilty to the charge and accordingly I convicted him on the charge of defilement.

In brief, the agreed summary fact is that the victim Belinda Wagapu was born on 28^th July 1994 and the accused was born on 30^th October 1953. And there is a difference of 41 years with their ages at the time of the offence.

Victim with her brother and sister lived with the step-father and mother at Canaan village, Kohigo Island, Western Province. And the accused also lived at Canaan village, Kohigo Island. Victim used to go to the accused’s house and asked for food and as a result they created a relationship.

Sometimes between 28^th February 2009 and 31^st March 2009 the accused went to the victim’s mother and asked if the victim and her sibling could go to his house to cook some food. And in the afternoon victim and her brother and sister went the accused’s house.

When they arrived at the house, accused was in his room. He called out for the victim to come in his room. She went to him and accused gave some money to give to her sister and brother so that they can go to the store while the victim stayed with the accused. And they went to the store while the victim stayed with him in the house.

Accused asked the victim to clean his room and when she entered the room, he closed the door and asked her for sex. The victim went to the bed and removed her clothes and underwear. Accused rubbed his penis with the coconut oil until it erected. Accused then inserted his penis into the victim’s vagina and moved his buttock up and down until he ejaculated. The complainant felt wetness at her vagina. After that the accused warned the victim not to tell her parents about what he did to her.

The crown asked the court to take into account as aggravating factors the age disparity with difference of 41 years with their ages at the time of the offence. Breach of trust and though distant relatives they lived together at the community and strong families relationship between the accused and the victim’s family.

Crown acknowledges as for the mitigation that accused has five children but they did live with him and he has no formal job.

And for purposes or in the aggravating factors the defence acknowledges the breach of trust, the age disparity of 41 years and the victim is a child and of a vulnerable age.

And Counsel Ifuto’o B for the defence submitted for the court to take into account in the sentence, the delay of 9 years in finishing the case. The one month and few days in custody, and tough accused had 13 previous conviction, they do not relate to sexual offences and the last one was in 1991 before this one in 2009. The accused is now at the age of 65 years and he is currently on treatment for his medical/health condition. It should be taken into account in the sentence for this case.

The Sentence

The accused committed the offence in 2009 and the law is that any person charged and convicted under section 143 (1) (1) of the Penal Code shall be liable to imprisonment for five years. For the accused, he entered guilty plea and convicted on the charge for defilement.

Counsel for the Defence acknowledges the matters raised by the Crown as aggravating factors. With the breach of trust it is quite serious on part of the accused because the fact discloses that accused asked the mother of the victim and other children to go with him to his house and the mother trusted him for the safety of the children however he abused the victim or committed this offence to the victim. The fact of the case also reflects that the defilement has been carefully planned on part of the accused.

With the sentence for the accused Andrew Tabaki, I take into account aggravating factors the migrating factors raised by both counsels and it is my view the appropriate sentence for you accused is 3 years imprisonment.

ORDERS

1. The accused Andrew Tabaki is sentenced to 3 years imprisonment,
2. One year of the sentence is suspended for one year.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge