R v Subukalia [2020] SBHC 102; HCSI-CRC 171 of 2019 (13 November 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Subukalia
Citation:
Date of decision:	13 November 2020
Parties:	Regina v Joseph Subukalia
Date of hearing:	11 November 2020
Court file number(s):	171 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted on 3 counts of defilement of a child under 15 years contrary to section 142 (1) of the Penal Code (cap 26). 2. The defendant is sentenced to 3 ½ years imprisonment on count 1. 3. The defendant is sentenced to 3 ½ years imprisonment on count 2. 4. The defendant is sentenced to 3 ½ years imprisonment on count 3. 5. Sentences on counts 1, 2 and 3 to be served concurrently. 6. Time spent in pre-trial custody to be deducted from total sentence. 7. The defendant to be released at the rising of the court. 8. Right of appeal.
Representation:	Mrs. Olivia Manu Ratu for the Crown Mr. Daniel Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, S. 139 (1) [cap 26], S.142 (1) [cap 26], Juvenile Offenders Act [cap 14] S.16
Cases cited:	Director of Public Prosecution v Mulele and Poini v Director of Public Prosecution [1986]SBCA 6,R v Hou [2014] SBHC 68, R v Fasua [2009] SBHC 54

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 171 of 2019

REGINA

V

JOSEPH SUBUKALIA

Date of Hearing: 11 November 2020
Date of Decision: 13 November 2020

Mrs. Olivia Manu Ratu for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. Joseph Subukalia was originally charged with three counts of having sexual intercourse or indecent act of a child under 15, contrary to section 139 (1) of the Penal Code (cap 26). The defendant had pleaded not guilty to those charges. On the 29^th September 2020, the Director of Public Prosecution made an oral application in court for an amendment of the filed information. The application was granted and the defendant was then charged with three counts of defilement of a girl under 15 years contrary to section 142 (1) of the Penal Code (cap 26).
2. The defendant was re-arraigned on the amended charges on the 2^nd October 2020. He entered guilty pleas to all three charges. For various reasons, sentencing submissions were not made until the 11^th November 2020.
3. Under section 142 (1) of the Penal Code (cap 26), the maximum penalty for the type of offending that you have committed is one of life imprisonment. You would now know and would have now realised that this type of offending is very serious. Its seriousness is manifested in the maximum term of life imprisonment. This type of offending is similar to the offence of murder which carries a mandatory term of life imprisonment.
4. The facts of your case are that both you and the complainant had stayed at Mbarana Settlement, Northwest Guadalcanal, Guadalcanal Province. In 2014, you were 16 years old and the complainant was 8 years old. You were living with your mother and step father in a Red house owned by Melinda Kii at Mbarana. The complainant was also living at Mbarana with her adoptive mother Hilda Kii.
5. The first incident occurred on an unknown date between 1^st June 2014 to 30^th June 2015. You were then a Form 2 student at Naha. On that occasion, you were doing your school work in the Red House when the complainant came past your house. You called her and the complainant came inside the house. Whilst in the house, you laid the complainant on the bed, lifted her skirt and widened her legs. You then pushed your erected penis into her vagina and had sex with her. After that, the complainant left and fetched water and you continued doing your school work.
6. The second incident occurred on an unknown date between 1^st June 2014 to 30^th June 2015. On that occasion, you were seated in a hammock in the complainant’s home kitchen. You laid the complainant on top of you. You then unzipped your trousers and pushed your penis into her vagina. You then turned her around and continued to have sex with her. You also kissed the complainant on her mouth.
7. The third incident occurred on an unknown date between 1^st June 2014 to the 30^th December 2015. That incident occurred at night time underneath the house that you were living in. The complainant was in the kitchen and she went past you. You were then playing martial arts with a wooden dummy. The Complainant appeared to have been disturbing you. You then pulled the complainant to the side of the house, beneath the main house. No one saw you. You then unzipped your trousers, took out the complainant’s trousers and pushed your penis into her vagina. The complainant felt your penis penetrating her vagina. After that you separated and the complainant went upstairs. You also went inside the room that you were occupying with other boys. You were arrested by the police on the 12^th April 2018 and had remained in custody since. You have been on remand in custody for a period of about 2 years and 5 months.
8. For this offending, the prosecution had submitted that the court must take into account that aggravating features are present therein. In the case of Direct of Public Prosecution v Mulele and Director of Public Prosecution v Poini [1986] SBCA6, the Court of Appeal had highlighted four factors that the court must take into account on sentencing offenders in this type of offending. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself.
9. In your case, the factor that I must take into account in your sentence is the age disparity. In 2014, you were 16 years old. The complainant was just 8 years old. Your age disparity was 8 years. You were a juvenile and the complainant was just a child. She might not have reached puberty stage yet on that occasion.
10. Connected to the above is because of her age, the complainant was very vulnerable. You took advantage of her age and vulnerability for your own sexual gratification.
11. The court had also noted that you have committed the offending over a period of time. You had sexual intercourse with the complainant on three separate occasions. You have corrupted the complainant’s mind and on the third occasion, it could be seen that she was into that kind of sexual activity. That is a very sorry state of affairs for the complainant.
12. On your behalf, it was submitted that you are first offender. You have no previous convictions. The court has however noted that you have committed a very serious offence at a very young age.
13. You have pleaded guilty to your offending and I give you credit for that. Your guilty plea shows not only remorse but that you have come to terms with your offending and have agreed to take responsibility of your actions. I have read the report from the Social Welfare Division which also confirms that you are sorry for what you have done. Your guilty plea also saves time and resources from conducting a trial into your case.
14. I have noted in your favour that you have been on remand in custody for a period of 2 years and 5 months.
15. I have noted from the court file that you were committed to this court on the 24^th September 2018. The information against you was filed by the Director of Public Prosecutions on the 31^st July 2019, some 10 months after your committal. I do not see why it should take the Director more than 10 months just to file the information in your case. I am therefore entitled to say that the office of the Director of Public Prosecution had delayed the prosecution of this case for more than 10 months.
16. I am told that you were 16 years old in 2014 when you committed the offending. You were 20 years old when you were arrested by the police on the 12^th April 2018. That position had led to the confusion in dealing with your case at first instance. You were a juvenile in 2014 but an adult when you were arrested for the offendings.
17. In any event, the sentence that would be imposed against you would be one that would show that you were a juvenile at the material time and that you must be dealt with under the provisions of the Juvenile Offenders Act (cap 14).
18. This court is empowered under section 16 of the Juvenile Offenders Act, to impose a range of punishments on delinquents like yourself. In their discretion, the court may inter alia dismiss the charge, order a fine or even sentencing the offender to a term of imprisonment.
19. I have been referred to in a number of case authorities from both Mrs Ratu-Manu for the prosecution and Mr. Kwalai for the defence and I am grateful for their assistance. I take into account the cases of R v Hou [2014] SBHC 68, HCSI- CRC 25 of 2014 and R v Fasua [2009] SBHC 54, HCSI- CRC 464 of 2007 and have noted what was said by the court in those cases.
20. In your case, I have noted that there was no force, threat or violence used on the complainant. I am however, very concerned that you have committed the offending on a vulnerable young child. I am equally concerned that this type of offending has become very prevalent in our communities. I must remind you that the laws are enacted to safeguard and protect our young female population from selfish sexual lust from perpetrators like yourself.
21. The sentence that I will impose upon you will bring home to offenders and would-be offenders that the courts do not tolerate and condone this types of offending.
22. Taking into account the circumstances of your offending, together with the aggravating and mitigating features in your case, the case authorities, the undated juvenile social inquiry report and the provisions of section 16 of the Juvenile Offenders Act (cap 14), I hold that a term of imprisonment should be imposed against you. I hereby sentence you to 3 ½ years’ imprisonment each for counts 1, 2 and 3 respectively. I further direct that the sentences are to be served concurrently.
23. Since you have been remanded in custody for a period of 2 years and 5 months, you have fully served your imprisonment term.

Orders of the court

1. The defendant is convicted on 3 counts of defilement of a child under 15 years contrary to section 142 (1) of the Penal Code (cap 26).
2. The defendant is sentenced to 3 ½ years imprisonment on count 1.
3. The defendant is sentenced to 3 ½ years imprisonment on count 2.
4. The defendant is sentenced to 3 ½ years imprisonment on count 3.
5. Sentences on counts 1, 2 and 3 to be served concurrently.
6. Time spent in pre-trial custody to be deducted from total sentence.
7. The defendant to be released at the rising of the court.
8. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge