R v Faenle [2019] SBHC 76; HCSI-CRC 361 of 2018 (27 September 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Faenle
Citation:
Date of decision:	27 September 2019
Parties:	Regina v Jacob Faenle
Date of hearing:	24 September 2019
Court file number(s):	361 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	Count one (1) two (2) years imprisonment Count two (2) two (2) years imprisonment The sentences are suspended for two years on good behaviour.
Representation:	Mrs R Olutimayin with Mr. J Auga for the Prosecution Mr. R Manebosa S R for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (sexual Offence) Act 2016, s136 F(1) (a) (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 361 of 2018

REGINA

V

JACOB FAENLE
Defendant

Date of Hearing/Arraignment: 24 September 2019
Date of Sentence: 27 September 2019

Mrs R Olutimayin with Mr. J Auga for the Prosecution
Mr. R Manebosa S R for the Defence

SENTENCE

Maina PJ:

The Defendant JACOB FAENLE pleaded guilty on two the counts under section 139 (1) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. On the plea of guilty by the defendant, I convicted him on the charges.

Factual Backgrounds

The Defendant was charged on two counts under 136F (1) (a) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and alternative two counts of sexual intercourse with child contrary to section 139 (1) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. When arraigned on 18^th January 2019, Defendant pleaded not guilty on the two charges.
In this sitting, Crown decided to amend the charges and proceed with the alternative counts. A Nolle Prosequi was filed in the court and followed by the information under section 139 (1) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
Defendant pleaded guilty on the charges under section 139 (1) (b) of the Penal Code 2016 as amended and accordingly convicted him on the two charges of sexual intercourse with child under 15 years of age.

Facts

From the summary facts, the first offence happened on 7^th June 2017, when the victim with her friend was returning to their house at Manakwai village, North Malaita, Malaita Province. They came to Mrs Lois Toto’ona’s house and her friend then left and went back to her house. The Complainant then whistled to signal the Defendant (pssssssst) and the Defendant consequently called her to come to him. Both went into a room, undressed and laid on the bed. The Defendant put his erected penis into her vagina and had sexual intercourse with her.
The second incident happened on Sunday 11^th June 2017 as the bell rang and the Complainant left and on her way to church. As she walked passed the Defendant’s house, Defendant was coming down from his house to have a shower. The Complainant saw the Defendant and she whistled to signal Defendant again (psssssst). The Defendant went to her and both went into the room in a house. In the house both undressed and lay on the bed. Again, the Defendant put his erected penis into her vagina and had sexual intercourse with her.
Complainant’s mother went in the church and while she was there she found out the daughter was not at the church and so she went to look for her. The mother found her and the daughter told her that she was with the Defendant and he had sex with her.

The Law

The Penal Code - Part XVI in section 136 to 150 was repealed and replaced in Penal Code (Amendment) (Sexual Offences)Act 2016. It is well noted and understood that the intention of the Parliament with the 2016 Amendment on the Penal Code is to prevent the men from abuse on child and or certain categories of the people in the societies, communities or the country.
The offence under section 139 (1) (b) and (3) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 provide for maximum penalty 15 years imprisonment if the child is between 13 and 15 years of age. Consent is not a defence for this offence.

The sentence

The court can impose the maximum sentence on conviction of more serious case for the offence. It is from the acts, behavior or method used by the Defendant to have sex with the Complainant. For sure the seriousness in the criminality of the offence is accepted by the facts that sex with a child on this age is an abuse of right of the child. And each case depends on the circumstances, the offence, offender and the presence of aggravating and or mitigating features that will form or be considered on its own merits to arrive at an appropriate sentence.
The Defendant pleaded guilty on the two charges. He is single, young person and was 19 years old at the time of the offences, currently 21 years old, co-operate with Police investigation and no previous conviction. With these matters, I give credit to the Defendant and or to be taken into account in this sentence.
Counsel for the crown submitted the only aggravating factor for the case is offending was repeated and would continue if not quickly discovered. I would also state here that this attitude of people may also create or result to other serious issues to the Complainant or the communities. The aggravating factors are not materially or obviously felt rather anticipated.
There is no issue that the Complainant is protected or who was to be protected by the law, however, there were typical behaviours or actions by the Complainant in this relationship or with this affairs that resulted with the Defendant had sex with Complainant. Notably from the summary facts, the Complainant wanted or initiated the first moves that resulted the Defendant had sex with her on the two occasions. The Complainant was always a front liner or started the affairs by whistled (psssssst) that result to Defendant responded and had sex with her. The behaviour of the Complainant stands out very clear and would opt to some leniency or when deciding the appropriate sentences for the Defendant in this case.
Counsel Manebosa for the defence submitted that with the situation or circumstances in this relationship by the Defendant with Complainant. It was the temptations that even a religious person or pastor would take up immediately as chance or acted like the Defendant at the two occasions of sex with the Complainant.
There is a common saying that some men are like the crocodiles or sharks and if a person or you move close to them they’ll bite you.
And this is the situation the counsel is saying, but I would say the chance of sex with a child of such age is prohibited by the law.
Further while the counsel for the defence thought that is the situation, the wisdom of parliament for this legislation is or the principle of a fruit tree that you can harvest the fruits when it is ready. If it is not ready but you harvest it then you damage fruits. And if it is not yours, then ask the owner and if the owner allows when the fruits are ready then you may harvest. If he or she does not allow you to harvest the fruits, then you are in problem or commit an offence.
Both counsels asked the court to take into account the Defendant that is young, cooperated with Police investigation, still growing up and currently attending studies in mechanic and for his future life. With the mitigating factors the prosecution said that his being of young age that should earn him some credit and rebate.
The abuse by men to the children or small girls has regularly been reported in media and that suggest that this attitude of men is increasing. Such is a concern and courts is oblige to take into account when dealing with these types of cases.
The counsels also provided to the court with the submission on the sentences from the previous on defilement cases when it was under the former and amended provision of the Penal Code. With these facts and circumstances of this case the starting point in the sentence is 4 years.
Taking into account the submissions by both counsels, the matters stated above, the offence, offender and the typical circumstance of this case, the appropriate sentence for the defendant is two (2) year imprisonment for each count for sex with child between 13 and 15 years of age.

ORDERS

1. Count one (1) - two (2) years imprisonment
2. Count two (2) - two (2) years imprisonment
3. The sentences are suspended for two years on good behaviour.

THE COURT
Justice Leonard R Maina
PUISNE JUDGE