R v Saenemua [2020] SBHC 44; HCSI-CRC 695 of 2019 (15 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Saenemua
Citation:
Date of decision:	15 July 2020
Parties:	Regina v Alfred Iro Saenemua
Date of hearing:	10 July 2020
Court file number(s):	695 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	I hereby sentence to 9 years imprisonment for the offence of having sexual intercourse with a child under 15 years of age. I direct that the time spent in pre-trial custody be deducted from the total sentence. Orders of the Court
Representation:	Mrs. Margaret Suifa’asia and Mr. Jonathan Auga for the Crown Mr. Sholto Rodney Manebosa for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016, s139 (1)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Regina v Pana [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 695 of 2019

REGINA

V

ALFRED IRO SAENEMUA

Date of Hearing: 10 July 2020
Date of Decision: 15 July 2020

Mrs. Margaret Suifa’asia and Mr. Jonathan Auga for the Crown
Mr. Sholto Rodney Manebosa for the Accused

SENTENCE

Bird PJ:

1. The defendant is charged with one count of having sexual intercourse with a child under 15 years of age contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the 18^th May 2020, the defendant had entered a guilty plea.
2. Sentencing submissions was adjourned to the 10^th June 2020. Counsel for the defendant was not ready on the 10^th June 2020. The matter was then adjourned to the 17^th June 2020 and again to the 2^nd July 2020, to the 6^th July 2020 and the 10^th July 2020. The various adjournments were made because counsel for the defendant had failed to endorse the agreed facts and had continuously failed to prepare for his client’s sentencing submissions. That attitude is uncalled for because it could amount to a contempt of court. It must stop. It is obvious that some legal practitioners had no regard for court direction orders. Apart from that, it must also be borne in mind that some of the defendants (as in this case) are remanded in custody and their cases must be dealt with by the court expeditiously. As the saying goes, justice delayed is justice denied.
3. The facts of this case are that you are from Gegeo Village, Malaita Province. You were 40 years old at the time of offending. The complainant is from Matu Village, Santa Cruz. She was born on the 5^th September 2014 and was 4 years old at the material time.

You were a neighbour to the complainant’s family at Naha 1 area.

On the 19^th July 2019, the complainant went to your area to play with other children. Whilst the children were playing, you called the complainant and took her into your family house. You led the complainant into your room and you laid her on your bed. You then widened her legs and pushed one of your figures into her vagina. You also had oral sex with the complainant by pushing your tongue into her vagina.

4. The offence that you are charged with is a very serious offence under our laws. It’s seriousness is manifested in a maximum penalty of life imprisonment. As an illustration, the seriousness of such offending is as serious as a murder charge which also carries the maximum life imprisonment term.
5. The prosecution had submitted that there are various aggravating factors in your case that this court must take note of. The most obvious one is the age disparity between you and the complainant. You were an adult of 40 years at the time of offending. The complainant was a child of 4 years old. The age disparity was 36 years. The fact that the complainant was only 4 years old is a very serious aggravating factor. This was confirmed in the cases of R v Ligiau and Dori [1986] SBHC 15 and Pana v Regina CRAC 13 of 2013.
6. You have taken advantage of the complainant’s vulnerability. At her tender age, she would not have suspected or would have known what your intentions were. She could not even comprehend the extent of your actions.
7. It was obvious from the facts that you premeditated the commission of the offence. You made sure that there were no adults around the area as well as in your house when you committed the offence. You took the child into the comfort of your top floor room and had sexual intercourse with her. You performed a very disgraceful behaviour on the child. It was a very selfish act of sexual lust and desire on a child of tender age. She was below the age of consent and what you did was for your own selfish self-satisfaction.
8. The child has sustained injuries to her vagina as a result of your conduct. Being so innocent of the implication and consequences of your disgraceful conduct, the complainant relayed to her mother and elder sister what you have done to her. She will never forget what you have done to her on that fateful day. It will ponder on her mind for the rest of her life.
9. The law is framed in such a way as to protect our female population from such disgraceful conduct from the male population. Such crimes as this, is now becoming very prevalent in all of our communities in the country. A good number of children of the female gender and who are below the age of 10 years have been sexually abused in their lives by adult male persons. This shows that there has been an erosion of social norms in our country.
10. The government of the day must also take an active role in trying to vigorously contain the escalating number of sexual related offences in the country. The job to try and curb crimes is not merely for the judiciary. The main duty of the judiciary is to punish the delinquents. What should the executive arm do, to try and curb the rising rates of crimes in the country? How could the executive promote the welfare of its citizens so that its citizens do not feel left out and would eventually turn to crime.
11. In your case, I have noted your past medical background in the report of Dr Paul Orotaloa dated the 15^th August 2019. The doctor had noted that you had sustained injuries to your brain from meningitis and you also had a history of delayed milestones in childhood. Notwithstanding, he had also stated that you have developed into an adult capable of looking after yourself and living meaningfully with others in the community.
12. With the doctor’s comments in mind, I would say that your action of the 19^th July 2019 is unacceptable and is highly deplored by this court.
13. I have noted that you are a first offender. You do not have a criminal history behind you. You have pleaded guilty to the offence which does not only show your remorse but that you have owned up to your offending and had therefore accepted responsibility for your actions.
14. I have also noted that members of your family and the complainant’s family members have conducted reconciliation for your offending. As a result of the reconciliation, the relationship between the two groups had been mended. Nonetheless, I do not think the reconciliation would weigh more in your favour. A criminal offence had been committed and you have to face the consequences.
15. It is accepted in a number of sexual offences cases, that the sentencing tariff has been between the ranges of 5 years to 12 years imprisonment. I have also taken cognisance of the starting point of 8 years imprisonment that the Court of Appeal had indicated in the case of Pana v Regina CRAC 13 of 2013. The court had also stated in that case that the very young age of the complainant is a serious aggravating feature which in itself should increase the sentence substantially over the starting point.
16. In this case, the complainant was a 4 year old child. You have pushed your figure and your tongue into the complainant’s vagina. Your action had corrupted the mind of the child. The child will have to live with that bad memory for the rest of her life. She sustained injuries to her vagina as a result of your disgraceful acts on her.
17. Taking into account all of the above circumstances, I hereby sentence to 9 years imprisonment for the offence of having sexual intercourse with a child under 15 years of age. I direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the Court

THE COURT
Justice Maelyn Bird
Puisne Judge