R v Konairamo [2019] SBHC 77; HCSI-CRC 183 of 2019 (17 October 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Konairamo
Citation:
Date of decision:	17 October 2019
Parties:	Regina v Vincent Konairamo
Date of hearing:	26, 27 September 2019
Court file number(s):	183 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina J
On appeal from:
Order:	I am satisfied the appropriate sentence for the Defendant is five (5) years imprisonment for each count for sex with child under 13 years of age.
Representation:	Mrs R Olutimayin with Mr. J Auga for the Crown Mr. R Manebosa for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016, s139 (1) (a)
Cases cited:	Pana v Regina [2013] SBCA 19, R v Mewa [2019] SBHC 33

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 183 of 2019

REGINA

V

VINCENT KONAIRAMO
Accused

Date of Hearing: 26, 27 September 2019
Date of Ruling: 17 October 2019

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

SENTENCE

Maina PJ:

The Defendant Vincent Konairamo pleaded guilty pleaded guilty on 2 count of sex with a girl under 15 years of age. Upon the plea of guilty, I convicted him on the two counts on the information.
The offence under section 139 (1) (a) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 provide for maximum penalty of life imprisonment. Consent is not a defence for this offence.

Facts

Complainant’s paternal grandfather is Mr Allan Abisia and both the Complainant and the Defendant resided with him at Aisalinga village, Central Kwara’ae. The Complainant is Elizabeth MUSU. She was about 9 years and Defendant was 32 years old at the time of the offences. The Defendant is the Complainant’s uncle.
On an unknown date between 1 January and 25 October 2018 in the afternoon the Complainant was in her grandfather’s house, the Defendant called her and told her to come with him to the stream beside the bamboo trees. The Complainant followed him to the stream.
When they arrived at the stream the Defendant told her to remove her clothes which she did and the Defendant removed his clothes. The Defendant told Complainant to lick his penis. He then pushed his penis in the Complainant’s mouth and she licked the penis of the Defendant. He then laid the Complainant on bamboo leaves on the ground and he widened her legs with his hands. The Defendant pushed his erected penis slowly until it went inside her vagina. She felt wet in her vagina and was very painful to her. The Defendant told the Complainant not to tell anyone when she got back home.
Again, on 25^th October 2018, the Complainant was looking after her uncle’s child in the grandfather’s house and the Defendant was inside the kitchen in the same house. The Complainant left the child and went inside the kitchen to ask the Defendant for matches.
The Defendant told her to take off her trousers and the Defendant moved close to her and licked her vagina, rubbed his penis on the outside of her vagina. While the Defendant was doing this to Complainant the grandfather unexpectedly arrived at the kitchen. He saw the baby standing alone and the grandfather called the baby’s name.
Both the Complainant and Defendant were taken by surprise and the Defendant stood up from the Complainant. The grandfather went inside the kitchen and saw the Complainant trying to zip up her trousers. He did not say anything and then he went out of the kitchen. The Complainant wore her trousers and remained in the kitchen.
The Defendant carried the child and went out to see the old man and gave him the key to his house which the Defendant had locked after the old man went out.
The matter was reported to the Police on 8 November 2018 and the Defendant was arrested on 19 November 2018.

The sentence

Sex with a child on this age and commonly described as “under age” is an abuse of right of the child and will have long-term detrimental effects on the victims. And the severity in the criminality of the offence to be accepted by the facts and all depends on the circumstances of each case, the offence, offender and the presence of aggravating and or mitigating features as they will form or be considered on its own merits to arrive at an appropriate sentence.
As stated with the cases Pana v Regina^[1] and R v Mewa^[2] of defilement under the former section 142 (1) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016, the onus of the court is consider the ages of the victims, the position of trust and the nature of that trust and the long-term detrimental effects on the victims for the assessment of the appropriate sentence. And the ranges of starting point is from 5 to 11 years.

Aggravating feature

Notably the aggravating feature of the case was at the time of the offences, the Complainant 9 years old and the Defendant was 32 years old, difference of 23 years. Defendant repeated the action. With position of trust the Defendant is the cousin brother of the Complainant’s father, uncle of the Complainant and she is his niece. The Defendant has the responsibility to look after his niece but he abused that trust.
By the facts and taking into account circumstances with aggravating feature the starting point for this case is 7 years.
I give credit and take into account the plea of guilty and early guilty plea and no previous conviction by the Defendant in the sentence.
Taking into account facts, aggravating features and or mitigation as both the Counsels submissions and the matters stated above, I am satisfied the appropriate sentence for the Defendant is five (5) years imprisonment for each count for sex with child under 13 years of age.

ORDERS

1. Count one (1) - five (5) years’ imprisonment,
2. Count two (2) - five (5) years’ imprisonment,
3. The sentence to run concurrently,
4. Any time spent in custody on remand to be deducted from the 5 years sentences to be served by the Defendant

THE COURT
Justice Leonard R Maina
Puisne Judge

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^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] [2019] SBHC 33; HCSI-CRC 591 of 2017 (19 March 2019)