R v Topo [2018] SBHC 99; HCSI-CRC 113 of 2018 (29 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Topo
Citation:
Date of decision:	29 November 2018
Parties:	Regina v James Topo
Date of hearing:	21 & 23 November 2018
Court file number(s):	CRC 113 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	Accordingly, I sentence the accused James Topo to 6 years imprisonment. The time spent in custody for this case to be deducted.
Representation:	Ms. F Fakarii for the Prosecution Mr. B Ifuto’o for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment Sexual offences) Act 2016
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 113 of 2018

REGINA

v

JAMES TOPO

Date of Hearing: 21 and 23 November 2018
Date of Judgment: 29 November 2018

Ms. F Fakarii for the the Prosecution
Mr. B Ifuto’o for the Accused

SETNENCE

Introduction

Maina PJ: The accused James Topo from Rapata village Kolombangara, Western Province is charged with one count of Sexual intercourse with a child under 15 years of age contrary to section 139 (1) (a) of the Penal Code (Cap 26) as amended by the Penal Code (Amendment Sexual Offences) Act 2016. On arraignment to the charge the Accused pleaded guilty and I therefore convicted him on the charge.

The law in section 139 (1) (a) of the Penal Code Cap 26 as amended by the Penal Code (Amendment Sexual Offences) Act 2016 states that a person commits an offence if the person has sexual intercourse with a child who is under 15 years of age and if a child is under 13 years of age or the offender is a person in a position of trust in relation to the child, the maximum penalty is life imprisonment.

The brief summary of the case is the victim Alice Kuria was aged 11 years old and the accused James Topo aged 25 years old at the time of the offence. The victim is the accused half-sister as they have the same mother but different fathers.

The victim was asleep in her room when the accused woke her up and told her to go to him and see what he described as something or when he said to her “Alice kam lukim something ya”. The victim woke up and went to the accused’s room and upon entering the accused told the victim to take off her clothes but the victim refused to do that and said “Mi less” But the accused kept on to repeat the demand for her to take off her clothes with strong voices.

The victim was afraid and so she removed her clothes. The accused said to the victim to lay down but she refused, so accused pulled her to the floor and held her breasts. Accused then opened the victim’s legs and pushed his erected penis into her vagina. Victim felt pain and struggled and asked to the accused to let or release her. She tried to shout but accused told her not to shout and accused covered her mouth with his hands.

Accused proceeded to have sexual intercourse with the victim but only half of his penis penetrated into the vagina. When the accused finished with the victim, he told her not to tell anyone and if she did, he will kill her to die.

Later the victim’s sister-in-law Elizabeth Reto noticed that the victim was not eating food and asked her if she was sick. Victim in reply had told Reto that her lower abdomen was painful because the accused had lay on top of her and pushed his penis into her vagina.

Both counsels submitted that the accused pleaded guilty at the first opportunity and he has no previous conviction and the court to take into account in the sentence and as it also save a lot of resources on the prosecution of this case.

Victim was 11 years old and the accused’s half-sister and she should rely on him for protection and security but instead the half-brother insisted and had sexual intercourse with the victim. The offence was committed at the night time or time to sleep.

It is a serious breach of trust on part of the accused to look after this small girl. The fact that he is the victim’s half-brother is disgrace and shameful behavior on his part him and such is condemned by the people in our communities and societies. An acts or behaviors by the accused is also not accepted in customs in some places and would create bigger things or problem with the girl’s people and the accused i.e. compensation and even violence towards each other’s group.

It creates a be long term scar of shame to the victim and her families as this is the attitudes, cultures or way of living in the typical Solomon Islands societies.

I have said in other cases that I had dealt in months or weeks ago that sexual offences are increasing in this country as reported by the media and with the sexual offence cases coming to the court. At this court circuit in Gizo, the majority of cases for plea and mention cases are with sexual offences cases.

This is an alarming situation as it shows no respect to each other worse so there are rape cases, sexual intercourses without consent with girls under age, sex with relatives by granddaddy, daddy, uncles and others. And I wish to reiterate that this is a concern and we must care about our community and people. For the court are obliged to impose general deterrence sentence to deter the accused and any other people who wanted practice this type or method of sex by rape and sexual behaviours.

For you accused James Topo with your offence I give credit for plea of guilty and no previous conviction. And taking into account the aggravating and mitigating factors it is my view that the appropriate sentence with this case is 6 years. And accordingly, I sentence the accused James Topo to 6 years imprisonment.

The time spent in custody for this case to be deducted.

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