R v Faukona [2020] SBHC 86; HCSI-CRC 93 of 2019 (15 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Faukona
Citation:
Date of decision:	15 August 2020
Parties:	Regina v Ben Faukona
Date of hearing:	13 August 2020
Court file number(s):	93 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Impose sentence of 2 years. 2. The period spent in pre-trial custody to be deducted. 3. Direct that the balance of sentence remaining to be suspended for a period of 12 months
Representation:	Andrew Ega Kelesi with John Wesley Zoze (assisting) for the Crown Benham Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (amendment) (Sexual Offences) Act 2016, S. 140 (1) (a)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 93 of 2019

REGINA

V

BEN FAUKONA

JUDGMENT: 13 August 2020
SENTENCE: 15 August 2020

Andrew Ega Kelesi with John Wesley Zoze (assisting) for the Crown
Benham Ifuto’o for the Defendant

Palmer CJ.

1. You pleaded guilty to a charge of having sexual intercourse with a child under the age of 18 years contrary to section 140 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. This is a new offence created under the Penal Code (Amendment) (Sexual Offences) Act 2016, and carries a maximum sentence of 15 years imprisonment. The seriousness of this offence is reflected by the maximum sentence that has been fixed by the Legislature. Secondly, the same law also provides that consent is not a defence. While that is so, where there is evidence of consent (not present in this case) that normally would go towards mitigation in the case.
3. There are good reasons why such a law is in place and the courts in this country have repeatedly stated that those who commit this type of offence should expect an immediate custodial sentence. While there have been more serious cases of this type of offending, the sad thing is that this seems to be prevalent in the country.
4. The court therefore must bear in mind the revulsion of the community and the need to protect young girls in our society. The courts in this country have duty to ensure there is sufficient general deterrence in the community by the type of sentences that are imposed.
5. The facts showed that the defendant was at the time of the commission of offence a juvenile at 14 years of age. That he is closely related to the victim as a first cousin and that even though the victim had told him that he should not be doing what he did because they were related he persisted in his efforts and had sex with the victim.
6. The aggravating features in this case include the age of the victim at 15 years as a child, the breach of trust by a close relative and the physiological effect upon the victim of the offence both physical and mental.
7. In contrast, I note the following mitigating factors raised on your behalf, that you are a first offender, and entered a guilty plea at the earliest opportunity. I give credit for both, in particular your guilty plea, which not only shows remorse and contrition, but has saved court time and resources, and saved the victim from having to go into the witness box and relive the terrible experience that she was subjected to.
8. I accept submissions from your counsel, that your prospects of rehabilitation and reintegration back into your community as a young person are good. I note that compensation has been paid in the sum of 10 baniau (Kwaio shell money), reconciliation conducted between the two parties and relationships restored. This is a necessary part of healing and restoration. I note no further harm or injury was caused or weapon used.
9. I note you have served 4 months in pre-trial custody and that this is to be reflected in the sentence to be imposed by having it deducted.
10. I am satisfied the starting point in your case should be 5 years. I have been referred to a number of case authorities and thank Counsel for their written submissions. Each case however is to be determined on its own merits. This case falls in the lower range. I deduct 2 years for the guilty plea, and another year for other mitigating factors including in particular the fact that you were a juvenile at the time of the commission of the offence; you were only 14 years old at that time, leaving a total sentence of 2 years to be served. The law does provide a separate sentencing regime for juveniles and in so far as it is possible to consider other alternative sentences to be imposed.
11. This type of offences however is very serious and so you can expect to be imprisoned immediately to show the Courts disapproval and reflecting the community’s aversion and Parliament’s concerns.
12. I take into account the fact that you have already spent 4 months in pre-trial custody and direct that it be deducted. I am satisfied it is also sufficient punishment and so further direct that the remainder of the sentence be suspended for 12 months. If you re-offend then you may be arrested and required to serve the balance of the sentence apart from being sentenced for that new offence as well.

Orders of the Court:

1. Impose sentence of 2 years.
2. The period spent in pre-trial custody to be deducted.
3. Direct that the balance of sentence remaining to be suspended for a period of 12 months.

The Court.