R v Joe [2020] SBHC 81; HCSI-CRC 256 of 2019 (28 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Rayson Joe
Citation:
Date of decision:	28 August 2020
Parties:	Regina v Rayson Joe
Date of hearing:	25 August 2020
Court file number(s):	256 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	i) 2 years imprisonment ii) The imprisonment term is wholly suspended for 2 years.
Representation:	Mr. Andrew Kelesi for the Prosecution Mr. Chris Rarumae for he Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal code Amendment) (Sexual Offences) Act 2016, S.139 (1)
Cases cited:	Mulele v Director of Public Prosecution, Poini v Direction of Public Prosecution [985-1986] SILR 145, Regina v Pana [2013] SBHC 88, R v Manele [2020] SBHC 37, R v Faenle [2019] SBHC 76

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 256 of 2019

REGINA

V

RAYSON JOE

Date of Hearing: 25 August 2020
Date of Decision: 28 August 2020

Mr. Andrew Kelesi for the Prosecution
Mr. Chris Rarumae for the Accused

SENTENCE

1. The defendant Rayson Joe is charged with one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the 25^th August 2020, the defendant had pleaded guilty to the offence.
2. At the outset, I must remind you that the offence for which you are charged is very serious in nature and it carries a maximum imprisonment term of 15 years. The purpose for enacting such legislation is to protect our children from being sexually abused by males like yourself.
3. The facts of your case are as follows:

The incident complained of, happened on the 18^th November 2018 at the road side at Malakerava Two point. The complainant was 13 years and 5 months old at the material time. The complainant and you were acquainted to each other. After having talked to each other by mobile phone, you picked the complainant in the vehicle you were driving in the afternoon of that day. The complainant was supposed to be dropped off at the Gizo market. At the market you told the complainant that you were going to Titiana to leave the taxi with the owner. The complainant asked you that she wants to go with you to Titiana. You went together to Titiana and picked someone there to take you back to Gizo. It was already dark when you arrived back in Gizo and you were both dropped off at Gizo wharf.
At the United Church area, you used your brother-in-law’s vehicle and went to Tophill area to drop the complainant. She was not dropped off at that place and you both decided that she be dropped off at Malakerava to follow the short-cut back to her house.
At Malakerava, the complainant decided to stay a bit longer with you. By then, it was about 11:30 pm whilst parked there, you both decided to get intimate and started kissing each other. That led to you having sexual intercourse with the complainant. You were found in each other’s company at about 3:00 am on the 19^th November 2017. A compensation of $10,000.00 was paid to the complainant’s family.

4. In order for me to reach an appropriate sentence in this case, I must take into account the aggravating as well as the mitigating features in your offending. The prosecution had submitted that one of the aggravating feature in this case is your age disparity. The complainant was 13 years and 5 months at the time of offending. You were 19 years old then. The age disparity is about 6 years. At your age, you should have been able to exercise restraint on that occasion.
5. Another aggravating feature in your offending is that the said offending occurred at night time. You should have acted more responsibly and should have reminded the complainant that it was getting very late at night time. She should be back home as soon as you have arrived back from Titiana.
6. On your behalf it was submitted that you have pleaded guilty to the offending at first opportunity. That in my view, not only shows remorse on your part but that you have come to terms with your offending and the consequences that would follow. I give you credit for admitting your offending.
7. You are a first time offender. You have no previous convictions. You are not a habitual offender and as such, you pose no threat to the community. The incident was a one off occasion.
8. You have co-operated with the police in their investigation. You have also pleaded guilty at the Magistrate Court as well as this court. I have also noted that you were 19 years old at the time of your offending and your youthfulness may have also contributed to this offending. This does not mean that this court condones your action.
9. You are currently working as a taxi driver and you are supporting your mother and a sibling. At the time of your offending, you were also working as a taxi driver. I must urge you that in your work environment, you must learn to respect all passengers and more especially your female passengers so that you do not fall into the same trap again. Most of all, you must also have respect for yourself, your job, your family and for God. That is how you will be successful in life.
10. I have also noted that you have paid compensation of $10,000.00 to the complainant’s family. The relationship between the complainant’s family and your family have been restored. I have also viewed the payment of compensation as a sign of remorse on your part.
11. In the case of Mulele v Director of Public Prosecution and Poini v Director of Public Prosecution [1985- 1986] SILR 145, the court set out four requirements to be taken into account in sentencing offences of the like nature as this. They included:
    1. Disparity of age;
    2. Abuse of position of trust;
    3. Subsequent pregnancy; and
    4. Character of the girl herself.
12. In your case, the age disparity is not too high. The complainant is a child of just above 13 years and you were only 19 years old then. I do not see your acquaintance with each other as a situation that you were placed in a position of trust. Fortunately for you, there was no subsequent pregnancy in your offending.
13. In the agreed summary of facts, I could see that the complainant’s character at the time of your offending was somewhat inviting. She followed you at her own will. She could have been dropped off at the Gizo market, the Tophill area and at Malakerava short-cut but she chose not to. She knew that it was getting very late at night but she had decided to stay with you a bit longer on the night of the 18th November 2017. She did not make any attempt to return home until you were found together in the early hours of the 19^th November 2017.
14. I have also perused the medical report of the complainant and have noted the conclusion which states that there could have been a previous sexual encounter by the complainant. That also goes to the character of the complainant.
15. I am guided by the sentencing of like offences in the cases cited by both counsel for the prosecution and the defence. After having taken into account the gravity of the offending in the cases of R v Pana [2013] SBHC 88, CRC 402/08, R v Gabriel Manele [2020] SBHC 37, CRC 22 of 2029, and R v Faenle [2019] SBHC 76, CRC 361 of 2018 and others, I view your offending at a lower part of the scale.
16. I put the starting point in your offending at 4 _½ years imprisonment. With the mitigating features in your case together with the character of the complainant, I sentence you to 2 years imprisonment for the offence of having sexual intercourse with a child under than 15 years old.

Orders of the court

1. 2 years imprisonment
2. The imprisonment term is wholly suspended for 2 years.

THE COURT
Justice Maelyn Bird
Puisne Judge