R v Mindu [2021] SBHC 1; HCSI-CRC 221 of 2019 (8 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Mindu
Citation:
Date of decision:	8 February 2021
Parties:	Regina v Tusania Mindu
Date of hearing:	3 February 2021
Court file number(s):	221 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is hereby convicted on one count of having sexual intercourse with a child under 15 years old contrary to section 139 (1) (a) of the Penal code (Amendment) (Sexual offence) Act 2016. 2. The defendant is sentenced to 1 ½ years imprisonment. 3. The sentence is suspended for a period of two years.
Representation:	Mr. Andrew Meioko for the Prosecution Mr, George Gray and Mr. Paul Olisi None for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 139 (1) (a)
Cases cited:	Mulele v Director of Public Prosecutions; Poini v Director of Public Prosecutions [1986] SBCA 6

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 221 of 2019

REGINA

V

TUSANIA MINDU

Date of Hearing: 3 February 2021
Date of George Gray and Mr. Paul Olisi None for the Accused

Mr. Andrew Meioko for the Prosecution
Mr. George Gray and Mr. Paul Olisi None for the Accused

SENTENCE

1. The defendant Mr Tusania Mindu 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. The defendant had initially pleaded not guilty to the charge. Upon being re- arraigned on the 2^nd February 2021, the defendant had entered a guilty plea.
3. The offence for which you are charged is very serious and carries a maximum imprisonment term of life. As a comparison, it is as serious as a murder charge. The court frowns at such offending.
4. The facts of your case are as follows:

You are from Nazareth Village, Marovo Lagoon, Western Province.

You were 22 years old at the time of offending.

The complainant is also from Nazareth Village and was 12 years old.

She was born on the 17^th January 2006.

On an unknown date between 1^st and 31^st of April 2018, you and your brother Fred Mindu had gone to drop your brother to board a ship enroute to Honiara.

You then went to Berina Rest House to charge your speaker.

You saw the complainant at the Rest House and said to her “me likem you”.

Whilst you were talking, the complainant’s mother was angry and shouted at the complainant.

You then left and went away and heady home to Nazareth.

5. As you, Fred and two other boys reached the solpower station, you noticed that the complainant was following from behind. You asked her why she was following you and she said that her mother was angry with her and chased her. You and the other boys told her to return to her mother several times but she refused. She told you and the other boys that she was going to her brother’s house at Nazareth. You all walked to Buni Camp.
6. From Buni camp, you used two canoes and paddled to Nazareth. Upon arrival at Nazareth, you told the complainant to go to her brother’s house. She refused and decided to stay with you at Fred’s house. Fred and Willie slept on the floor of the house and you and the complainant slept on a high bed. Fred and Willie joking told both of you to have sexual intercourse.
7. You then touched and played the complainant’s vagina. The complainant enjoyed it and felt aroused and allowed you to continue playing with her vagina. She separated her legs and you sucked her breast. She undressed and separated her legs and you had sexual intercourse with her by pushing your penis into her vagina. You then fell asleep. Early the next day morning, you and Fred took the complainant back to Seghe.
8. Upon those facts, the prosecution had submitted that some aggravating features are present in your offending. Firstly is the age disparity between yourself and the complainant. You were 22 years old and the victim was 12 years old. The age difference was one of ten years.
9. Secondly is that the complainant was only 12 years old. Owing to her young age, she is vulnerable to abuse.
10. On your behalf, it was submitted that you have pleaded guilty to the offending. I give you credit for that. Your early guilty plea not only shows remorse but that you have come to terms with your offending and taken responsibility of your actions. Your early guilty plea also saves time and expenses from conducting a trial into the offending.
11. You are a first offender. You have no criminal record. I commend you for that and I urge you to live a crime free life from now on. You have not committed any further offendings since this case.
12. You are a young person. You could have committed the offending due to your youthfulness. On the same token there is a possibility of rehabilitation for you. Learn from your mistake and try to live a responsible and respectful life. Respect yourself so that you will be able to respect your fellow citizen especially the women and young girls.
13. I have noted that you are a standard 6 leaver. You have now intended to attend Mabusu Training Centre, Gizo to undertake a trade in carpentry.
14. The court has also noted that you have committed this offending in about April 2018. You gave your statement to the police on the 18^th October 2018 admitting to the offence.
15. I have had the opportunity to read the case authorities cited by both the prosecution and the defence and I am grateful for their assistance.
16. In the case of Mulele v DPP and Poini v DPP [1985 – 1986] SILR 148, the court had outlined four features that should be considered in sentencing this type of offences. The four features included age disparity, abuse of trust, subsequent pregnancy and character of the girl herself.
17. In this case, there is no breach of trust and no subsequent pregnancy. I therefore rate this case at a lower scale.
18. On the issue of the character of the complainant, the conduct and action of the complainant is questionable. The complainant forced herself to follow you and the other boys on that occasion.
19. I am mindful of the fact that consent is not an issue in this case but the complainant’s conduct on the date in question, goes to her character. She enjoyed the sexual encounter with you and willingly took active part in the process.
20. The complainant refused to go back to her mother. She also refused to go and sleep at her brother’s house at Nazareth Village.
21. Taking into account all of the above discussions, I am of the view that the defendant is hereby sentenced to 3½ years imprisonment. Upon taking into account the mitigating features discussed above, I reduce that term by two years.
22. I further hold that due to the character of the complainant as discussed, I can hold that her conduct had led to this offending.
23. I have also noted that there has been some delay in the prosecution of this case. The defendant had not contributed to the delay.
24. For the reasons stated in paragraph 22 and 23 above, I would suspend the sentence of 1 ½ years for a period of 2 years.

Orders of the Court

1. The defendant is hereby convicted on one count of having sexual intercourse with a child under 15 years old contrary to section 139 (1) (a) of the Penal code (Amendment) (Sexual offence) Act 2016.
2. The defendant is sentenced to 1 ½ years imprisonment.
3. The sentence is suspended for a period of two years.

THE COURT
Justice Maelyn Bird
Puisne Judge