R v Bui [2021] SBHC 32; HCSI-CRC 562 of 2020 (25 February 2021)

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Case name:	R v Bui

Citation:

Date of decision:	25 February 2021

Parties:	Regina v Nevol Bui

Date of hearing:

Court file number(s):	562 of 2020

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	1. Ct 1 – 3 years imprisonment, 2. Ct 2 - 3 years imprisonment, 3. Ct 2 sentence is suspended on good behaviour for 2 years, 4. The suspended sentences to commence after the imprisonment of Ct 1, 5. Any period in custody to be deducted from the sentence. 6. No further orders

Representation:	Meioko A and Kelesi for the Prosecution Gray G Public Solicitor and Max H for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] section 139 (1) (b)

Cases cited:	Mulele v Director of Prosecution and Poini v Director of Prosecution [1985 – 1986] SILR 145

Meioko A and Kelesi for the Prosecution
Gray G Public Solicitor and Max H for the Defence

You, Defendant Nevol Bui have been charged and pleaded guilty on the charge of sexual intercourse with a girl under 15 years of age contrary to section 139 (1) (b) of the Penal Code (Cap 26) as Amendment by the Penal Code (Sexual Offences) Act 2016.

Upon the plea on the charges you pleaded guilty on counts 1 and 2 and you were accordingly convicted on all of them.

Complainant Angela Hopa was 13 years old and was attending grade 5 at Poitete Primary school at the time of the offending. The Defendant at that time was 25 years old.

On July 7, 2020, between 1700hrs and 1900hrs, at Poitete Station, Kolombangara Island the Defendant was drunk. He went to the complainant house and asked her for complainant’s cousin sister Rose. Complainant told him that Rose had already left to her home. Later the Defendant with Complainant then left the house and went to a garden.

When they reached the garden, the Defendant and Complainant undress themselves and they had sexual intercourse in the garden.

After they had sex in the garden both walked back to the station and complainant followed the defendant to his house. They stayed at the Defendant’s house and had sexual intercourse again. In the next morning the complainant left the defendant’s house and went back to her house.

The offence of sexual intercourse with child under 15 years of age is an offence is under section 139 (1) (b) of the Penal Code (Cap 26) as Amendment by the Penal Code (Sexual Offences) Act 2016. And under the under the amended Act 2016, sexual intercourse is either the penetration of the penis, use the fingers, tongues or objects in the vagina of the child who is under 15 years of age.

Sexual intercourse as under the amended Act 2016 is either the penetration of the penis, use the fingers, tongues or objects in the vagina of the child who is under 15 years of age.

For all the sexual intercourse charges against the defendant, they were penetration of the penis in the vagina.

It is the parliament’s wisdom to protect a child who is under 15 years of age until they are mature or at the right age when they may be able to decide of what should be right and proper for them, likewise to protect the abuse of a child.

I noted the comment by the Public Solicitor in his submission for the sentence when he made reference to the harvesting of the small coconut crab (kasusu) they are nice to eat, the fingers and soft balls of the kasusu. He said it is nice and soft to eat the small kasusu but we may destroy the productions or availability of kasusu and they should be left to big and before we can harvest them.

I would agree with the Public Solicitor’s view with the kasusu example to some extent i.e. the environmental and conservational reasons but with the offences of sexual intercourse with child under 15 years of age, the punishment may be bitter, unpleasant or horrible to the defendant and even to the families.

With this type of offences the court had outlined or sketched out in Mulele v Director of Prosecution and Poini v Director of Prosecution [1985 – 1986] SILR 145, four features the court should consider in the sentence, they are age disparity, abuse of trust, subsequent pregnancy and character of the girl.

These features should be noted in the consideration or they are guiding the aggravating features on this type of offences.

Accused had pleaded guilty to the two charges and I give him credits for the guilty pleas, at the first appearance he decided to do so and no previous conviction. Notably there is also no aggravating feature.

Defence submitted the offences arose on a boy and girl relationship and asked the court into account in the sentence. I noted that relationship however the law is just clear that it is an offence or is not yet right for the defendant to have sexual intercourse or penetrate his penis in child’s vagina.

The Crown submitted to the court to impose general deterrence as to send a clear message direct to the people that sexual intercourse with a child is wrong and the court will not tolerate these kinds of offences.

With that I also noted something interesting at the court circuits here or this part of the jurisdiction. There are numerous sexual offence cases coming to the court. I would say that this type of case have regularly come to court for mentions and trails. At the last two circuits in the 2020 I dealt or disposed by convictions and sentences of the sexual offence cases. Now at this two week’s circuit I have a trail case of rape and beside two rulings on the appeal cases and with this case dealt with 8 plea of guilty cases and all are with sexual offence cases.

What this simply means is a concern of numerous occurrences of this type of cases in our communities. A concern at all times must be taken into when considering the appropriate sentences for the defendants at this time and to deter the people from committing the offences.

Taking into account the circumstances of the case, the submissions by the Crown and Defence counsels and the concern on regular occurrences of sexual offences in this part of jurisdiction, the defendant Nevol Bui is sentenced to a total of 6 years imprisonment to be served as by the following orders.

High Court of Solomon Islands

R v Bui [2021] SBHC 32; HCSI-CRC 562 of 2020 (25 February 2021)