R v Taburi [2021] SBHC 34; HCSI-CRC 506 of 2018 (25 March 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Taburi
Citation:
Date of decision:	25 March 2021
Parties:	Regina v Frank Taburi
Date of hearing:	24 March 2021
Court file number(s):	506 of 2018
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 on each count. 2. Impose sentence of 2 years each for count 1 and count 2, to be served concurrently. 3. The period spent in custody is to be deducted from the sentence. 4. Direct that the sentence of 2 years is to be suspended for 12 months.
Representation:	Mr. J W. Zoze for the Crown Mrs. S. Karani for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 136 (1) (b)
Cases cited:	Pana v. Regina [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 506 of 2018

REGINA

V

FRANK TABURI

Date of Hearing: 24 March 2021
Date of Sentence: 25 March 2021

Mr. J. W Zoe for the Crown
Mrs. S. Karani for the Defendant

Palmer CJ.

1. You have been charged with 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. This provision covers offences committed with girls between the ages of 13 and 15 years of age and carries a maximum sentence of 15 years imprisonment.
2. The maximum sentence of imprisonment reflects the level of seriousness and concern with which this type of offence is considered and viewed in the community and the need to protect young girls from other men and themselves. Young children fall within this category. The same law provides that consent is not a defence. Sexual intercourse with a child below the age of 15 years therefore does not require lack of consent as an ingredient of the offence. This is an established principle in 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.
3. The courts in the country have repeatedly stated that those who commit this type of offence should expect an immediate custodial sentence. There are however varying degrees of seriousness and the court is expected to treat each case separately on its merits and to impose an appropriate sentence.
4. Sadly, this type of offence is becoming more prevalent in this country and the courts have a duty to ensure there is sufficient general and specific deterrence in the community by the type of sentences that are imposed.
5. The starting point in this type of case without any aggravating or mitigating features, in a non-contested case is eight years^[1]. Where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
6. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the aggravating feature in this case, that of the age of the victim at 13 years.
7. Mr. Zoze for the Crown also submits another aggravating feature, that of repetition in the offending.
8. A third aggravating feature is the disparity in the age of the defendant at 19 years old as opposed to the age of the victim at 13 years. Being older, there is an expectation of being responsible and accountable in protecting young girls from this type of offence.
9. In mitigation, Mrs. Karani for the defendant submits that there are two main distinguishing features in this case to others, being the young age or youthfulness of both parties in this case and secondly, that there was consensual sexual intercourse although that was no defence to the offending. Understanding the background of offending is also relevant to the consideration of sentence to be imposed.
10. In terms of the age difference, both were young at the time of the offending. The defendant was only 19 years old and in secondary school in the fifth form, while the victim at 13 was in year 5 in primary school. Other cases that have been brought to my attention reflect a wider age gap or disparity and where the offender is of mature years. Sentences imposed in those instances have also reflected the level of culpability and accountability based on the circumstances of offending and the offender.
11. I give credit for a guilty plea, which has saved court time and expense, and the complainant from the distress of having to relive the trauma from the witness box.
12. I note you are a first offender and has not been in trouble with the law previously and give credit for that as well. I note that you have cooperated with the police, and from the beginning in your record of interview had not denied that sexual intercourse had occurred. I note the submissions of your counsel that your change of plea at this late stage after thorough advice should not be taken against you, but to be credited as an early guilty plea, that opportunity not accorded until late at trial stage.
13. I note your education has suffered a setback as a consequence of this charge hanging over your head for the past 3 years or so. Your counsel has indicated to the court that after this case has been resolved that you wish to pursue your education opportunities thereafter.
14. I accept submissions from your counsel that you are remorseful over what has happened and wish to move on and make a fresh start in life. Your plea of guilty is consistent with remorse and a realization and acceptance of the error of your ways.
15. I note you have not re-offended since and have been of good behavior and kept the peace. You have learnt your lessons the hard way and if you did not know then that it was wrong and against the law, you now know that having sex with a young girl below the age of 15 years even if she consents is a serious offence and you can be sent to prison for a long time.
16. I accept your prospects of rehabilitation are good. You have the support of your family and the presence of your father in court is demonstrative of that fact.
17. Taking all the circumstances of offending and your personal circumstances into account, I am satisfied the starting point in this case should be five years. I deduct 2 years for your guilty plea and 1 year for other mitigating factors, leaving a total sentence of 2 years to be served. I am also satisfied that the period spent in custody is to be deducted from the sentence imposed.
18. I am also satisfied, taking everything into account, in particular your mitigating factors that the sentence of two years should not be served immediately but suspended for one year.

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 on each count.
2. Impose sentence of 2 years each for count 1 and count 2, to be served concurrently.
3. The period spent in custody is to be deducted from the sentence.
4. Direct that the sentence of 2 years is to be suspended for 12 months.

The Court.

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^[1] See Pana v. Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).