R v Belo [2021] SBHC 17; HCSI-CC 608 of 2019 (15 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Belo
Citation:
Date of decision:	15 April 2021
Parties:	Regina v Thomas Belo
Date of hearing:	8 April 2021
Court file number(s):	608 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is convicted on one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code [cap 26] as amended by the Penal Code (Amendment)) (Sexual Offences) Act 2016. 2. The defendant is sentenced to 9 years imprisonment 3. I direct that the time spent I pre-trial custody to be deducted from the total sentence 4. Right to appeal
Representation:	Ms. Elma Rizzu for the Prosecution Mr. Rodney Sholton Manebosa for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 139 (1) [cap 26], Penal Code section 136 [cap 26]
Cases cited:	Mulele v Director of public Prosecutions and Poini v Director of Public Prosecution [1986] SBCA 6, Pana v Regina [2013] SBCA 19, Qoloni v Regina [2005] SBHC 73

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 608 of 2019

REGINA

V

THOMAS BELO

Date of Hearing: 8 April 2021
Date of Decision: 15 April 2021

Ms. Elma Rizzu for the Prosecution
Mr. Rodney Sholton Manebosa for the Accused

SENTENCE

Bird PJ:

1. The defendant, Mr. Thomas Belo is indicted with one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being initially arraigned, the defendant had entered a not guilty plea. It was during pre-trial conference stage that an indication of a change of plea was taken. The defendant was re-arraigned on the 10^th March 2021 and he pleaded guilty to the charge. He was convicted accordingly.
2. The offence of having sexual intercourse with a child under 15 years is very serious in nature. To manifest its seriousness, a maximum sentence of life imprisonment could be imposed by the courts. This will bring home the message that the courts frowned upon such offending and they are not to be tolerated.
3. The facts of your case are that you are from Funafou Village, North Malaita, Malaita Province. The victim is also from Funafou Village. You are an uncle to the victim’s mother. The victim was born on the 24^th July 2009. She resides at Lau Valley with her parents and she attended Class 2 at Lau Valley School. At the material time, the victim’s family and you were both living at Lau Valley area. The complainant’s family used to live at your house.
4. On the 24^th July 2019, the victim and her father were attending a two weeks church programme at Lau Valley field. The victim wanted to drink so she went back to her house. She had to walk past your house along the way. It was getting dark then and as she went passed your house, she did not see anyone. As she stood outside of your house, you came from behind her and held her dress and pulled her into your house. The victim saw you and recognised you.
5. The victim tried to get away from you but you were stronger. You tore the neck of the victim’s dress and removed her trouser. You switched the light off and instructed the victim to go inside your room. You further instructed the victim to undress. When she refused to undress, you forced her. The victim was afraid and did what she was instructed to do. You then removed your clothes and lay down on the bed whilst holding a grip on the victim. You lay the victim on top of you and you pushed your penis into her vagina and had sexual intercourse with her. The victim cried as it was very painful and that she did not accept what you did to her.
6. Not long after, you heard the victim’s mother calling out for her and you quickly got up, wore your clothes and got out from the room. The victim also got up, straightened her clothes and ran out to her mother and aunty outside your house. The victim’s aunty asked the victim what happened and the victim told her what you did to her. She was later taken to Seif Ples and she was examined by Dr Metolo Silas. It was stated by Dr Silas that there was redness at the right side next to the vaginal opening. You were arrested and was remanded in custody since 27^th July 2019.
7. From the above stated facts, I am now required to impose a sentence against you that will bring out the magnitude of your offending as opposed to your circumstances. The case of Mulele v Director of public Prosecutions and Poini v Director of Public Prosecution [1986] SBCA 6 (1985-1986 SILR 145 sets out four guidelines in sentencing offenders in like offences for which you are charged with. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
8. In your case, it was submitted by Ms. Rizzu of counsel for the crown that there is a huge age disparity between you and the victim. At the time of offending, you were 71 years old and the victim was 10 years old. The age difference between you and the victim was 61 years. You were at a ripe old age of 71 years and you acted as a silly teenager. Your action does not speak well of your character towards children.
9. I am also told that there is an abuse of position of trust in your case. You are and uncle to the victim’s mother. In our culture, you are the victim’s grandfather and in that position, you are obligated to be concerned about the victim’s welfare and total wellbeing. The family and community at large expect you to take responsibility of the welfare of their children and you have breached the trust placed upon you. From your attitude, you are not someone to be trusted with children.
10. It is submitted that another aggravating factor in your case is the young age of the victim. At the material time, the victim was only ten years old and was below the consenting age. Being a child the victim is very vulnerable to abuse from adults like you.
11. I am told that the abuse on the victim was premeditated. It is obvious from the facts that the victim was alone as she walked past your house. It was also getting dark and the victim did not see you. From behind her, you held her dress and took her into your room. From those facts, it is also obvious that you were watching the victim.
12. I am also told that you are a repeated offender. You have a previous conviction for a sexual offence. You were sentenced to 6 years imprisonment on the 10^th August 2012 for the offence of rape contrary to section 136 of the Penal Code (cap 26). From that offence you could have been released from incarceration on the 10^th August 2018. With the normal 1/3 remission, you might have been released from incarceration on the 10^th August 2016. Whichever date you were released from incarceration, the court had noted that it did not take you long to commit another sexual assault against a child. Upon these discussions, the court views your current offending as very serious.
13. It is also submitted by the prosecution that you have made threats of harm on the victim if she did not follow your instructions. Being a child of only 10 years, even without a threat of actual violence, the child would have been very frightened. It is obvious that the child was terrified and as soon as she heard her mother calling, she straightened her clothes and ran to her and her aunty.
14. I have also heard submissions from your lawyer, Mr. Manebosa. He had submitted that you are now 73 years old and had 4 children. You have pleaded guilty to the offending which shows that you have own up to the offending and willing to take responsibility of your actions. Your guilty plea also saves time and resources from conducting a trial into the case. You have also save the victim the distress of having to recount the traumatic experience in court. I am also told that you have co-operated with the police during investigation.
15. I am also told that you have a medical condition being hypertension that requires treatment. You are taking treatment for that condition at the Rove Correctional Services Clinic. I have also heard that you have been remanded in custody since 27^th July 2019. To this date, you have been in pre-trial custody for 1 year, 8 months and 17 days.
16. After having said the above, I must say that the court is very concerned about the prevalence of offences of a sexual nature especially sexual assault on children. It is obvious that there is total disregard of the life and total wellbeing of a child. Children have the same rights as adults and they ought to be treated with respect and dignity notwithstanding their age.
17. I have heard cases like yours time and time again and the sentences imposed by the courts do not seem to bring home that such actions and behaviours are not tolerated and condoned by the courts. It is my view that apart from the punishments imposed by the courts, there ought to be other facilities or avenues created by our government to try and curb the increase of sexual assault cases. The increase in such cases is alarming in the past years.
18. I have been referred to in a number of previous cases on sentencing like offences as yours and I am grateful for counsel for that. From the cases cited by counsel, the sentencing range of like offenders was an imprisonment term from between 4 years to 12 years depending on the gravity of the offending as well as the age of the victims.
19. The case that sets out guidelines on sentencing of offences of this nature is that of Pana v Regina [2013] SBCA 19, SICOA- CRAC 13 of 2013. In that case, the Court of Appeal put the starting point at 8 years if the victim is below the consenting age.
20. In your case, the victim’s age is way below the consenting age of 18 years and therefore I will put your starting point at 8 years. You have a previous conviction on a sexual offence and that is an aggravating factor in your case. Taking into account your previous conviction as well as the other aggravating features discussed above, I increase your sentence by 4 years.
21. For your guilty plea and bearing in mind the principles cited in the case of Qoloni v Regina [2005] SBHC 73, HCSI-CRC 076 of 2005, I am also inclined to reduce that sentence. I have also taken note of your medical condition of hypertension for which you are currently receiving treatment although there is no medical report confirming that. I hereby reduce your sentence by 3 years. You are hereby sentenced to 9 years imprisonment on one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

Orders of the court

1. The defendant is convicted on one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) Sexual Offences) Act 2016.
2. The defendant is sentenced to 9 years imprisonment.
3. I direct that the time spent in pre-trial custody to be deducted from the total sentence.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge