R v Manele [2020] SBHC 37; HCSI-CRC 22 of 2019 (22 May 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Manele
Citation:
Date of decision:	22 May 2020
Parties:	Regina v Gabriel Manele
Date of hearing:	15 May 2020
Court file number(s):	22 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	Taking into account all of the above circumstances, I convict you on the charge of having sexual intercourse with a child under 15 years of age and sentence you to 12 years imprisonment. I further direct that the time spent in pre-trail custody be deducted from the total sentence.
Representation:	Mr. Andrew E. Kelesi for the Prosecution Mr. Allan Tinoni for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Constitutions 10 (1), Penal Code (Amendment) Sexual Offences) Act 2016, s139 (1) (a)
Cases cited:	Regina v Bade [2020] SBHC 1, R v Billam [1986] 1 WLR 349, Warren Rina Pana v Regina [2013] SBCA 19, Patterson Punikera v Regina

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 22 of 2019

REGINA

V

GABRIEL MANELA
Accused

Date of Hearing: 15 May 2020
Date of Decision: 22 May 2020

Mr. Andrew E. Kelesi for the Prosecution
Mr. Allan Tinoni for the Accused

SENTENCE

Bird PJ:

1. The defendant Gabriel Manele is charged with one count of having sexual intercourse with a child under 15 years of age contrary to Section 139 (1) (a) of the Penal Code (Amendment) Sexual Offences) Act 2016.
2. It was alleged that on the 24^th July 2016, at Tanagaogao Village, Talaura in the Guadalcanal Province, you had sexual intercourse with Alice Ghaua, a girl under 15 years to wit 7 years old.
3. Upon being arraigned on that charge on the 12^th April 2019, you have entered a not guilty plea. Upon further indication from your lawyer that you intended to change your plea, you were re-arraigned by the court on the 26^th November 2019.
4. Upon being re-arraigned, on the information, you have entered a guilty plea.
5. The facts of your case as presented to the court are as follows: -
   • That you are Gabriel Manele of Tanagaogao Village, Guadalcanal Province. You were born in 1988 and was 28 years at the time of offending.
   • The complainant was 7 years old at the material time and was attending Talaura pre-class.
   • You are the complainant’s uncle, being a younger brother to her mother.
   • You and the complainant lived together at the family house.
   • On the 23^rd July 2016, the complainant was sitting outside the house when you came and pulled her by the hand and led her into the room in the house.
   • There was no one at the house on the material time. You then undressed the complainant.
   • You then laid the complainant on the mattress and took off your long trousers and laid on top of her. The complainant saw her penis.
   • You then separated the complainant’s legs and pushed your penis into her vagina. The complainant felt pain in her vagina.
   • You then pulled out your penis, stood up and left the complainant in the room. The complainant later got up and went to her sister Joycelyn at the river. Joycelyn asked her what happen to her and the complainant told her what you have done to her and showed Joycelyn her vagina.
   • Joycelyn washed the complainant’s vagina and her clothes and took her to a person called Sikua and reported the mater. A medical report had confirmed that the complainant had injuries to her vagina as a result of the sexual assault.
6. The offence for which you are hereby charged is very serious and its seriousness is manifested in the maximum sentence of life imprisonment. That sentence is equivalent to a charge of murder which also carries a sentence of life imprisonment.
7. In your case, counsel for the prosecution had submitted that notwithstanding your guilty plea, there are several aggravating features against you that this court ought to take cognizance of. They are: -
   1. The complainant is very young. She was only 7 years old at the material time. You took advantage of her age and vulnerability.
   2. There is significant age disparity of 21 years between you and the complainant.
   3. You are a close family member to the complainant. You are the complainant’s maternal uncle.
   4. There is a breach of trust in your offending.
   5. The visible and psychological impact on the complainant.
8. Your lawyer have also made submissions on your behalf on this case. From those submissions, the court had noted the following as mitigating factors: -
   1. Your guilty plea. This has shown remorse on your part. The court has also noted that it was an advantage to the complainant in not having to come to court and to recite what had happened to her on that fateful day. Otherwise, it would have an additional devastating experience for her.
   2. You have no previous conviction and this is your first time to be brought before a court of law on a criminal charge.
   3. You are married with five children.
   4. You have spent more than 3 years in pre-trial custody.
   5. There has been a delay in the prosecution of your case for about 3 years 7 months.
9. The court had noted all of the above circumstances, and the court’s duty is to impose a penalty on you that would bring home that the court views such offending as extremely serious. This type of offending has become very prevalent in our various communities in the country. Any penalty imposed by the court must reflect the seriousness of such offending.
10. In this case, I wish to reiterate the comments I have made in the case of Regina v Thomas Ini Bade (HCSI- CRC No. 166 of 2019) in respect of the responsibilities, duties and obligations of the state under the international treaties/conventions that we have ratified.
11. Particular reference is made to Article 39 of the Convention of the Rights of a Child commonly known as CRC. This country had ratified that convention. Article 39 requires the state to provide special assistance for children who have been neglected, abused or exploited to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring the health, self-respect and dignity of the child. That is lacking in our country and I urge the Government to start implementing those provision. Mechanisims must be put in place so that states recognises the responsibilities and duties under those conventions.
12. In this case, I am greatly assisted by the cases cited by counsel in their submissions. Particular reference is made in respect of the case of R v Billam [1986] 1 WLR 349. The guidelines in that case were followed in the case of Warren Rina Pana v Regina CRAC No. 13/13.
13. In your case the aggravating features mentioned in paragraph 7 above are several. In applying the guidelines stipulated in the Billam’s case, the starting point in such cases as this would be 10 years imprisonment.
14. I have taken into account all of the aggravating features and the mitigating features in your case. With particular concern is the age of the complainant. She was only 7 years old. You are a father of 5 children and the complainant could just be as young as some of your children. You have no boundary. You absolutely have no respect for young girls. You could also be a threat to your young daughters.
15. You are a maternal uncle to the complainant. In your culture, you are highly regarded as the person responsible for the welfare of your sister’s children. In that position, you are in a position of trust. You have breached that trust placed upon you.
16. There is no psychological impact report in this case. In any event, the court takes into account the medical report of the complainant. You have achieved penetration on the complainant and that she had sustained injuries to her vagina. The offending happened on the 24^th July 2016 and by the 25^th July 2016 when the complainant was examined by the doctor, there were still blood stains on her vagina.
17. Taking into account the aggravating features in your case, I would have given you a sentence of 14 years imprisonment. However, I have also taken into account the delay in the prosecution of your case. You were arrested on the 27^th July 2016 and was remanded since then.
18. I am inclined to also take cognizance of the comments of the then Chief Justice, Justice Ward in the case of Patterson Runikera v Regina about delays. On page 2 of his judgment, he discussed Section 10 (1) of the Constitution and the effect it has on sentencing if there is a delay in the prosecution of a criminal case.
19. In your case, you have spent a total of 3 years 7 months in pre-trial remand. I therefore reduce the sentence I intend to impose on you for a period of two years.
20. Taking into account all of the above circumstances, I convict you on the charge of having sexual intercourse with a child under 15 years of age and sentence you to 12 years imprisonment. I further direct that the time spent in pre-trail custody be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge