R v Menadol [2021] SBHC 54; HCSI-CRC 581 of 2020 (4 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Menadol
Citation:
Date of decision:	4 August 2021
Parties:	Regina v James Menadol
Date of hearing:	19 July 2021
Court file number(s):	581 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
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 hereby sentenced to 2 ½ years imprisonment. 3. I direct that the time spent in pre-trial custody be deducted from the total sentence. 4. Right of appeal
Representation:	Mrs. Dalcy Belapitu Oligari for the Crown Mr. Bobby Harunari for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S139 (1) [cap 26]
Cases cited:	Mulele v DPP and Poini [1985-1986] SILR 145, Pana v Regina [2013] SBCA 19, R v Paikai [2021] SBHC 12,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 581 of 2020

REGINA

V

JAMES MENADOL

Date of Hearing: 19 July 2021
Date of Decision: 4 August 2021

Mrs. Dalcy Belapitu Oligari for the Crown
Mr. Bobby Harunari for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. James Menadol 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 arraigned, the defendant had pleaded guilty to the charge. He was thereby convicted accordingly.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. In sentencing you, I am required to take into account the facts, the aggravating features and the mitigating features in your case.

The facts

3. The facts as were agreed to by both parties in your case are as follows:

You are from Neo Village, Santa Cruz, Temotu Province. The complainant is from Malo Village, Temotu province. You were 77 years old at the time of offending and the complainant was 4 years and 5 months old. You are married to the complainant’s grandmother so you are the complainant’s step grandfather. At the material time, you were residing with the complainant’s family at Henderson.
On the 10^th August 2020 at about 1.30pm, the complainant was playing inside their house at Top Timber area at Henderson while her mother was breastfeeding her younger sibling in the family bedroom. You were inside another bedroom and you called the complainant to come to you. When the complainant walked into the room where you were in, you lay her down on the floor and licked her vagina. The complainant was in pain. After sometime, the complainant’s mother called the complainant and you released her.
When the complainant’s mother asked her what you were doing to her, she told her mother that you licked her vagina with your tongue. Upon hearing that, the matter was reported to the police and you were charged. You were remanded in custody on the 12^th August 2020 to this date.

4. In sentencing you for the offence that you are charged with, the court must take into account the aggravating features and the mitigating features of the case. On behalf of the crown, Mrs. Oligari had submitted that there are several aggravating features in your offending. On the outset, I wish to state that in the case of Mulele v DPP and Poini [1985-1986] SILR 145, the Court of Appeal had set our four conditions that should be considered by the courts in sentencing like offenders. These conditions included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, there is a presence of a very huge age disparity. You were 77 years old and the complainant was a child of only 4 years and 5 months old. The age difference was more than 73 years. The courts do not condone and will not tolerate such offending as this.
6. The very young age of the complainant is a serious aggravating feature in your case. The complainant was just over 4 years old and you robbed her of her innocence. The child is below the consenting age. You have taken advantage of the complainant’s very young age and her vulnerability for your own selfish lust. I deplore your action towards this very young child.
7. You are the complainant’s step grandfather. You are in a position of trust to the complainant. As a grandfather, you should have been the person to provide love, care and attention to the child. You should have regard for the welfare and total wellbeing of the child. Instead you have sexually molested the complainant for your own satisfaction and self-gratification. You should be ashamed of your foolish actions toward the complainant. You have no respect for the dignity of the child. I am very concerned that this type of offending is very prevalent in our communities and households. The homes that were supposed to be safe havens for young children are no longer safe because adult people within the household are committing these very serious crimes right inside the family homes. It is highly deplored and a clear message must be sent out to offenders and would-be offenders that the courts will not tolerate and do not condone such actions.
8. It is also submitted by the crown that there was some pre-meditation in the commission of the offence by yourself. In the agreed facts, you were the one that called the complainant to come to you in the room you were occupying.
9. On your behalf, it was submitted by Mr. Harunari of counsel 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 but that you have own up to your offending and you are willing to face the consequences of your action. Your guilty plea also saves the courts time and resources in conducting a trial into this case. It also saves the complainant further stress and trauma in having to come to court and reciting her experiences of the past.
10. The court had noted that you are a first offender. You have no previous convictions and I commend you for living a crime free life for the most part of your life. I have also noted your personal circumstances and have also noted that case authorities had it that in sexual related cases, personal circumstances of accused persons do not weigh heavily as mitigating features.
11. I am told that you have co-operated well with the police during investigation of this case. I commend you for owning up to this offending and allowing the court to deal with your case expeditiously. I will also take into account the time you have spent in pre-trial custody whilst awaiting finalisation of this case.
12. I am also told that you are a sickly person. You previously suffered from tuberculosis and you also have recurrent pneumonia. You were admitted at the National Referral Hospital on the 4^th January 2021 for severe pneumonia. I have noted that remaining in incarceration is adverse to your health condition.
13. The court is assisted by counsel in providing previous cases that the court had dealt with in like offences. In the case of Pana v Regina [2013] SBCA 19, SICOA-CRAC 13 of 2013, the Court of Appeal had put a starting point of 8 years if the victim was below the consenting age. Notwithstanding that range, each case will also depend upon its own sets of facts and circumstance.
14. In the case of R v Paikai [2021] SBHC 12, HCSI-CRC 6 of 2020, the defendant pleaded guilty to two counts of having sexual intercourse with a child under 15 years. He was sentenced to 3 years imprisonment. The victim was 7 years old and the defendant had sexual intercourse with the child by inserting his tongue into her vagina and performed cunnillingus.
14. Taking into account all the above circumstances in your case, I hereby sentence you to 2 ½ years imprisonment. Time spent in pre-trial custody is to be deducted from total sentence.

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 hereby sentenced to 2 ½ years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the total sentence.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge