R v Rusu [2021] SBHC 49; HCSI-CC 596 of 2020 (10 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Rusu
Citation:
Date of decision:	10 June 2021
Parties:	Regina v Rusu
Date of hearing:	31 May 2021
Court file number(s):	596 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is hereby convicted of one count of having sexual 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. 2. The defendant is sentenced to 2 years imprisonment. 3. Since the defendant had already spent a period of 9 months and 25 days in pre-trial custody, I direct that he be released at the rising of the court. 4. 4. Right of appeal.
Representation:	Miss. Hellen Sekivara Naqu for the Crown Mr. Daniel Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 139 (1) (b)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Joe [2020] SBHC 81, R v Faenle [2019] SBHC 76

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 596 of 2020

REGINA

V

JAMES RUSU

Date of Hearing: 31 May 2021
Date of Decision: 10 June 2021

Miss. Hellen Sekivara Naqu for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 28^th January 2021, the defendant Mr. James Rusu is charged with one count of having sexual 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. Upon being arraigned on the 31^st May 2021, the defendant had pleaded guilty to the charges. He was thereby convicted accordingly.
2. The offence for which you are charged is very serious in nature and its seriousness is manifested in the maximum sentence of 15 years imprisonment. It is that serious because it intrudes into the private life of the victim. These laws are prescribed for the protection of young females from sexual abuse by males.
3. The facts of your case are as follows:

You are 20 years old. The victim was 13 years old at the time of offending.
On a Friday between 1^st November to the 30^th November 2019, you met the victim along the road at Namuruka, White River. She was returning home from a store. You asked the victim to come and meet you after dropping her shopping at home. The victim agreed to your request. She dropped her shopping at home and returned to meet you.
You went and sat with the victim at a scheduled place. You then asked the victim for sex. The victim agreed and told you not to tell anyone about you having sex with each other. You then told the victim to remove her clothes and she did. You had sex with her. After having sex you both left and went back to your respective houses. As a result of that sexual union, the victim fell pregnant. You were arrested on the 15^th August 2020 and was remanded in custody since then.

4. After stating the facts of your case, I have noted the guidelines set forth by this court in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145. The court had set out four factors that should be considered by the courts in the sentencing of offenders in sexual offences. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. Having noted those factors, it was submitted by Miss Naqu of the prosecution that there are in fact several aggravating features in your offending, the first being the young age of the victim. From the facts of your case, the victim was just 13 years old when the incident occurred. You must now know that having sexual intercourse with a girl of that age or below that age is unlawful. There are legal consequences that will be imposed when you commit those types of offending.
6. The second aggravating feature in your case is the age disparity between you and the victim. From the agreed facts you were 20 years old and the victim was just 13 years old. The age disparity between you was 7 years.
7. It was also submitted that another aggravating feature outlined in the Mulele case is the subsequent pregnancy. In the agreed facts, the victim fell pregnant following the sexual union between you and the victim. It was a one of occasion incident but unfortunately, the victim fell pregnant as a result.
8. Under our relevant laws, a female person who is under the age of 18 years is regarded as a child. In that instant, the victim was a child at the age of 13 years and she would have had the burden of raising another child of her own. It is a very unfortunate situation for the victim.
9. On your behalf, Mr. Kwalai of counsel had submitted that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your early guilty plea not only shows remorse on your part but that you have also own up to your offending and you are willing to face the consequences of your action. Your guilty plea also saves courts time and resources in conducting a trial into this case.
10. I am told that you have no previous conviction and as such you have no criminal history. You are a first offender and I commend you for living a life free from crime until this offending. Please learn from your mistake and try your best not to reoffend in future.
11. I am further told that you are a very young person and you have a good prospect of rehabilitation. Your youthfulness could have also contributed to your offending. The conduct of the victim had also led to your offending. She had willingly returned to meet you after she had already arrived back at her house.
12. I am also told that you have cooperated with the police during investigation which has led to your guilty plea in this court. I commend you for your honesty in dealing with the case against you.
13. I have noted that you have been remanded in custody since the 16^th August 2020. By today’s date, you would have been remanded in custody for a period of 9 months and 25 days.
14. I am referred to by counsel for the prosecution and the defence to various case authorities of the same nature previously dealt with by this court. In the case of R v Joe [2020] SBHC 81, HCSI-CRC 256 of 2019, the defendant was sentenced to 2 years imprisonment wholly suspended for 2 years.
15. In the case of R v Siosi Orisi, the defendant was sentenced to 4 years imprisonment for having sexual intercourse with a child under 15 years.
    16. In the case of R v Jacob Faenle [2019] HCSI-CRC 361 of 2018, the defendant was sentenced to 2 years imprisonment suspended for 2 years.
15. Taking into account the above cases and the particular circumstances in your case, I put your starting point at 4 years imprisonment. For the mitigating features in your case, I reduce that sentence by 2 years. I therefore sentence you to 2 years imprisonment.

Orders of the court

1. The defendant is hereby convicted of one count of having sexual 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.
2. The defendant is sentenced to 2 years imprisonment.
3. Since the defendant had already spent a period of 9 months and 25 days in pre-trial custody, I direct that he be released at the rising of the court.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge