R v Siru [2020] SBHC 87; HCSI-CRC 212 of 2020 (17 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Siru
Citation:
Date of decision:	17 August 2020
Parties:	Regina v Joshua Siru
Date of hearing:	13 and 17 August 2020
Court file number(s):	212 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1 Enter conviction for the offence of sexual intercourse with a child under 15 years contrary to section 139(1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. 2 Impose sentence of 6 years. 3 The period spent in custody is to be deducted from the sentence.
Representation:	Mr. A.E Kelesi for the Crown Mr. B. Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code ( Amendment0(Sexual Offences) Act 2016, S. 139 (1) (a)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 212 of 2020

REGINA

V

JOSHUA SIRU

Date of Hearing: 13 and 17 August 2020
Date of Sentence: 17 August 2020

Mr. A.E Kelesi for the Crown
Mr. B. Ifuto’o for the Defendant

Palmer CJ.

1. You have been charged with a very serious offence under our laws, that of sexual intercourse with a child under 15 years contrary to section 139(1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. This provision more specifically covers offences committed with girls under the age of 13 years and carries a maximum sentence of life imprisonment.
2. The maximum sentence of life imprisonment reflects the seriousness and concern with which Parliament holds in respect of this type of offences and the need to protect young girls from the predatory activities of men. Young children of tender age fall within this category. The same law also provides that consent is not a defence. Sexual intercourse with a child below the age of 15 years (previously described as defilement) does not need evidence of lack of consent. It has long been the law that a child below the age of 15 years cannot consent and so the fact of sexual intercourse and the child’s age is sufficient to found a conviction. That is not disputed in this 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 and specific deterrence in the community by the type of sentences that are imposed. The courts have a duty to rebuild the walls of respect, restraint and purity as they relate to the attitudes and behavior of men towards young girls and children in our community.
5. The starting point in this case without any aggravating or mitigating features, in a non-contested case should be eight years. Where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
6. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following additional aggravating features in this case. First, is the age of the victim at 12 years and 8 months, which places her at a very tender and vulnerable age at the time of the commission of the offence. Her young age is a very serious aggravating feature^[1].
7. The second aggravating feature is the disparity in age. The defendant was a mature person, older than the victim at 44 years with an age difference of about 32 years between you. This places him in a position of trust and responsibility over the victim. You failed to take care of her as the older and mature party.
8. The third aggravating feature is the position of trust and responsibility as an uncle he held, as a close relative of the victim, which he took advantage of and abused. She expected you to take care of her, her parents expected you to take care of her, society expected you to take care of her, the law expected you to take care of her, but instead you betrayed and breached that family trust and confidence in you as an uncle and allowed your feelings and desires to take control of you. You took advantage of your age and position of trust to abuse her. You have caused needless distress and trauma upon the child and whatever emotional and psychological damage may have been caused will take many long years to heal.
9. The fourth aggravating feature is the physical and physiological harm and injury caused, a form of invasive violence of a young and helpless child who could not defend and protect herself from your advances and was sexually violated to satisfy your desires. Your actions obviously caused untold suffering and pain that she will have to endure for some time to overcome this unwanted invasion of her body and personality at such a vulnerable age. The summary of facts showed she experienced bleeding and sharp pain to her private part when having shower.
10. The fifth aggravating feature is the manner in which it was done in the presence and without due regard to her cousin who witnessed when the defendant was forcefully taken away by the Defendant. This eventually led to the discovery of the offence when her cousin reported the matter to her mum who then reported the matter to the police.
11. These aggravating features collectively merit the increase of an additional two years raising the sentence to 10 years.
12. On the other hand I note your mitigating factors and balance these against the aggravating features present in your case. Credit must be given for your guilty plea given at the first opportunity, which apart from the utility of saving court time and expense, saves the complainant from the distress of having to relive the trauma from the witness box.
13. A guilty plea is also demonstrative of remorse on your part and a realization and acceptance of the error of your ways. That is always the first step towards change, reformation and a successful rehabilitation. As a young man, your prospects of rehabilitation are good.
14. I note you paid the victim $200 as compensation. The family of the victim has also taken a pig worth $1,800.00, a TV screen and a generator as compensation from you.
15. I note that you have no previous convictions and that this is your first time to appear in court. Credit is given for this.
16. The courts have duty to protect the helpless, the weak and those who are vulnerable, by ensuring that an immediate custodial sentence is imposed for this type of offending. It also has a duty to send out a clear message that those who commit this type of offence must expect a lengthy prison sentence. Each case has to be determined on its own merits and an appropriate sentence imposed that balances those elements of retribution, deterrence, prevention and rehabilitation.
17. Taking all your mitigating factors into account, I deduct 2½ years for your guilty plea, and 1½ years for other mitigating factors, leaving a total sentence of 6 years to be served. I am also satisfied that the period spent in custody is to be deducted from the sentence imposed.
18. You have a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Enter conviction for the offence of sexual intercourse with a child under 15 years contrary to section 139(1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Impose sentence of 6 years.
3. The period spent in custody is to be deducted from the sentence.

The Court.

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^[1] R v Ligiau and Dori [1986] SBHC 15