R v CBH [2021] SBHC 125; HCSI-CRC 363 of 2021 (1 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v CBH
Citation:
Date of decision:	1 October 2021
Parties:	Regina v CBH
Date of hearing:	29 September 2021
Court file number(s):	363 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of two counts of having sexual intercourse with a child under 15 contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is sentenced to 12 months imprisonment. 3. 6 months is suspended for a period of 12 months under section 44 of the Penal Code 4. The defendant is to serve 6 months imprisonment. 5. Since the defendant had been remanded in pre-trial custody for a period of 5 months, he has served his term of imprisonment. 6. The defendant is to be released at the rising of the court.
Representation:	Mr. Paul Junior Fanasia for the Prosecution Mr. Hayniel Max for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (1) (b), S 139 (1), Penal Code [cap 26] S 24 (2)S 44 , Juvenile Offenders Act S 12 and 16
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v SM (Juvenile) [2018] SBHC 114

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 363 of 2021

REGINA

V

CBH

Date of Hearing: 29 September 2021
Date of Decision: 1 October 2021

Mr. Paul Junior Fanasia for the Prosecution
Mr. Hayniel Max for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr. CBH is a juvenile. He is charged with 2 counts of having intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He had pleaded guilty to both charges and he was convicted accordingly.
2. I must remind you that the offence that you are charged with is very serious and carries a maximum sentence of life imprisonment. The law under which you are charged recognises and intends to protect young children from sexual abuse by men or boys like yourself. Having said that the courts also have a discretion under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence.
3. The facts of your case as agreed to by the prosecution and the defence are the following:

The complainant in this case is Tina Jerina of Sorezaru Village, Vella la Vella. At the time of offending she was 13 years old. You were then 17 years of age.

Between 1^st January 2020 and 31^st December 2020, at Sorezaru Village, you had sexual intercourse with the complainant by penetrating her vagina with your penis. The first incident took place at the victim’s house whilst members of her family had gone to the main village, Boro. The second incident occurred in the same year whilst the complainant had gone out fishing. You went and called her and you walked together to an old camp house inside a coconut plantation and had sex with each other.

On the 12^th January 2021, the complainant had experienced abnormal medical conditions and was referred to Gizo Hospital. She was found to be 18 weeks pregnant. It is unclear who had impregnated her. You were then arrested and charged.

4. Having stated the facts in your case, I must inform you that the law in this country on such offending is very clear. It is wrong in law for you to have sexual intercourse with a girl who is under 15 years old and under 18 years old. It is the duty of the courts to punish offenders like yourself and the courts have set out guidelines that must be observed whilst sentencing offenders. The Court of Appeal in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 had set out those guidelines. They included age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself.
5. In applying the above guidelines to your case, the aggravating feature present in your case is one of age disparity. At the time of offending you were 17 years old and the complainant was 13 years. The age disparity between you is one of 4 years. Notwithstanding, I will also take into account that you were also a juvenile at the time of offending. You were under 18 years of age then. Apart from the penalty codified under the Penal Code, I am also required to treat you as a juvenile and to punish you according to the provisions of section 12 and 16 of the Juvenile Offenders Act. I have also noted that you and the complainant were just teenagers at the time of offending.
6. The other aggravating feature in your case is the repetition of the offence. In the agreed facts you had sexual intercourse with the complainant on two separate occasions. I agree that the repetition of the offence is an aggravating feature against you.
7. On your behalf it was submitted that you have pleaded guilty to the offending. I give you credit for the early guilty plea. Your early guilty plea not only shows that you are sorry for what you did but that you have owned up to your offending and you are willing to face the consequences of your action. Your guilty plea has also save the court time and resources in conducting a trial into the case. You have also save the complainant the agony and stress in having to give evidence in a contested trial.
8. I have noted that you are a first offender. You have no previous conviction. I must remind you that getting in trouble with the law at such a young age is not the pathway that you should take. Take this as a lesson for you and do not reoffend in future. The court might not be so lenient on you if you happen to come to court again.
9. I have also noted that you were 17 years old at the time of offending. You have just turned 18 years on the 29^th March 2021. You were a juvenile then and the court shall punish you taking into account the provisions of section 12 and 16 of the Juvenile Offenders Act. You were a Form I student at Buri Community High School at the time of incident. You are now not attending school. Your biological mother died when you were only 6 years old and you were brought up by your grandparents because your father and step-mother do not treat you well. I encourage you not to fall into life of crimes. Build on your side of life so that you can continue with your education for your own further betterment.
10. I have heard that the complainant was a willing participant. In this type of offending, consent is not a defence. I however will take into account this as a mitigating feature on the basis of the character of the complainant. In the agreed facts, it cannot be confirmed who had impregnated the complainant. That goes to her character as well.
11. I have also noted and will take into account the time you have spent in pre-trial custody from 18^th January 2021 to 2^nd June 2021.
12. I have read and have noted the various case authorities referred to by both counsel in their respective written submissions. Of particular reference is the case of R v SM (Juvenile) [2018] SBHC 114 in which a 17 year old was charged for 2 counts of sexual intercourse with a child under 13 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.He was sentenced to 12 months imprisonment for each count to be served concurrently. Time spent in custody was taken into account and he was released at the rising of the court.
13. The above case is similar to that of your case. The defendant in that case was a juvenile like yourself. He was sentenced to 12 months imprisonment. The time spent in custody was deducted and he was released at the rising of the court.
14. Having regard to section 12 and 16 of the Juvenile Offenders Act. I hereby sentence you to 12 months imprisonment. Six months of that sentence is suspended under section 44 of the Penal Code for a period of 12 months. You will serve a period of 6 months in prison. Since you have spent a period of 5 months in pre-trial custody, I will release you at the rising of the court.

Orders of the court

1. The defendant is convicted of two counts of having sexual intercourse with a child under 15 contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is sentenced to 12 months imprisonment.
3. 6 months is suspended for a period of 12 months under section 44 of the Penal Code
4. The defendant is to serve 6 months imprisonment.
5. Since the defendant had been remanded in pre-trial custody for a period of 5 months, he has served his term of imprisonment.
6. The defendant is to be released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge