R v Abarina'a [2021] SBHC 176; HCSI-CRC 271 of 2021 (3 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Abarina’a
Citation:
Date of decision:	3 September 2021
Parties:	Regina v Sweetlyn Abarina’a
Date of hearing:	3 September 2021
Court file number(s):	271 of 2021
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)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. 2. Impose sentence of 4 years. 3. The period spent in custody is to be deducted from the sentence.
Representation:	Mr. J W Zoze for the Crown Mr G Male for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, R. v. Phoboro [2013] SBHC 8

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 271 of 2021

REGINA

V

SWEETLYN ABARINA’A

Date of Hearing: 3 September 2021
Date of Sentence: 3 September 2021

Mr. J W Zoze for the Crown
Mr. G Male for the Defendants

Palmer; CJ

1. You have been charged with a serious offence under our laws, that of sexual intercourse with a child under 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. This provision more specifically covers offences committed with girls between the ages of 13 and 15 years and carries a maximum sentence of 15 years imprisonment.
2. The maximum sentence of 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 other men. Young children of tender age fall within this category.
3. 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.
4. 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.
5. 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.
6. 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.
7. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following aggravating features in this case. First, is the age of the victim at 14 years, which places her at a tender and vulnerable age at the time of the commission of the offence; her young age is a serious aggravating feature^[1].
8. The second aggravating feature is the disparity in age. The defendant was a mature person, older than the victim at 28 years with an age difference of about 14 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.
9. The third aggravating feature is the position of trust and responsibility as an in-law to her, which you took advantage of and abused. There is an expectation placed on you but you allowed your feelings and desires to take control of you. You took advantage of your age and position of trust.
10. Further, being married also places a responsibility on you to be more discerning and accountable. You have caused needless distress and trauma upon the victim and upon your home and family and others as well.
11. Fourthly, there is evidence of pre-meditation and planning involved in the offence. Consent of the complainant is no defence.
12. The fifth aggravating feature is the physical, psychological and emotional trauma caused and resulting in the corruption of a young child in her growth and development. It will take time for her to come to terms with the negative effects of what has happened prematurely in her childhood.
13. These aggravating features collectively merit the increase of an additional two years raising the sentence to 10 years.
14. On the other hand I note your mitigating factors and balance these against the aggravating features present in your case. Credit is given for an early guilty plea 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.
15. 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. I allow a deduction of 3 years.
16. I note this is your first time to appear in court, a first offender with no previous convictions and have not been in trouble with the law before. I note your personal circumstances that you support your family and aging parents. That you have three children, the youngest being six months old. I note that he is attending a vocational school at this point of time. I deduct another two years.
17. It is equally pertinent to note on the other hand that in sexual offences as a whole, matters mitigation personal to the offender will have less effect on the sentence than in most other serious crimes. In R. v. Phoboro, Pallaras J. remarked:
    • "... it is well established that in cases of sexual assaults, matters personal to an accused are likely to have less impact on the sentence than with other serious offences."
18. I note that compensation has been paid to resolve the issue in custom, and allow harmony and peace among family members. I also note that he has cooperated well with police and deduct another 1 year.
19. His mitigating factors however need to be balanced with the aggravating features in this case and an appropriate sentence imposed.
20. Taking everything into account, I am satisfied a sentence of 4 years is appropriate in the circumstances of this case. The period spent in pre-trial custody is to be deducted from the sentence.
21. 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)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.
2. Impose sentence of 4 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