R v Ofonau [2022] SBHC 12; HCSI-CC 522 of 2018 (28 March 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ofonau
Citation:
Date of decision:	28 March 2022
Parties:	Regina v Timothy Ofonau
Date of hearing:	22 March 2022
Court file number(s):	522 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of 1 count of indecent act contrary to section 138 (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is hereby sentenced to 12 months imprisonment. 3. The defendant is to be released at the rising of the court. 4. Right of appeal.
Representation:	Mrs. Margaret Suifa’asia for the Crown Mr. Daniel .Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136F (1) (a) & (b), S 138 (1) (a), (b) & (c)
Cases cited:	R v Ligiau & Dori [1985-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 522 of 2022

REGINA

V

TIMOTHY OFONAU

Date of Hearing: 22 March 2022
Date of Decision: 28 March 2022

Mrs. Margaret Suifa’asia for the Crown
Mr. Daniel. Kwalai for the Defendant

SENTENCE E

Bird PJ:

1. By information filed on the 21^st February 2019, the defendant Mr Timothy Ofonau was charged with one count of rape contrary to section 136F (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (hereinafter referred to as the ‘Act’) and one count of indecent act without consent contrary to section 138 (1) (a), (b) & (c) of the Act. Upon negotiation between the parties. a nolle prosequi was filed in respect of that information and the defendant was thereby discharged. On the 3^rd December 2021, amended information was filed on one count of indecent act contrary to section 138 (1) (a) & (b) of the Act. Upon being arraigned on the information, the defendant had entered a guilty plea and he was convicted accordingly. Due to various reasons, sentencing submissions were not heard until the 22^nd March 2022. The defendant now appears before me for sentence.
2. You must understand that the offence for which you are charged is serious and carries a maximum sentence of 7 years imprisonment. From the agreed facts, the victim in this case is a 14 year old girl. You must be reminded that quite apart from the offence that you have committed, the victim is a child and it is against the law for you to do what you did to her.
3. The facts of your case are as follows:

You and the victim are both from Isabel Province. You were 46 years old at the material time and the victim was 14 years old.
On the 15^th December 2017, at Kolobabale Settlement at about 9.00am, you arrived at the settlement. You drank beer with the victim’s father the whole day. In the evening, you told the victim’s younger brother and James Melchoir to go to the store at Efata Village. You went after them.
A short while after that, the victim went to the garden which was not far from their house to harvest kumara for dinner. The victim dug kumara then brushed and cleaned the garden. You then came from behind her and startled her. The victim was not happy and asked you what you were doing. You both stood there and talked until rain started to fall. You both took shelter under a tree. Whilst you were under the trees, you told the victim to remove her shirt and her bra. She did. You held her against your body and touched her breasts and then fondled her vagina.
At that moment, the victim’s parents called out to her and you immediately ceased touching her and left the place. The victim wore her bra and shirt and went to her parents who met her at the garden.
You were arrested on the 23^rd January 2018 and escorted to Honiara from Buala. You were formally remanded in custody on the 30^th January 2018.

4. After having stated the facts in your case, and in order for me to impose an appropriate sentence against you, I will have to discuss the aggravating and mitigating features in your case. It is submitted by Mrs Suifa’asia of counsel for the prosecution that there are several aggravating features in your case. Firstly is the age disparity between you and the victim. At the time of offending, you were 46 years old and the victim was 14 years old. There is a huge age disparity of 32 years. At your age, you should be like a grandfather to the victim.
5. Another aggravating feature is the place of the offending. According to the agreed facts you committed the indecent act on the victim at an isolated place in the garden. No one was present at that time.
6. It is also an aggravating feature that you were under the influence of alcohol on that occasion. You have gone to the victim’s village on the date of offending and had been consuming alcohol with the victim’s father the whole day. Your actions could have been premeditated because you followed the victim from behind to the garden and startled her. You then executed your lustful desire on the victim. You immediately escaped when the victim’s parents called out to her.
7. On your behalf, Mr Kwalai of counsel had submitted that you have pleaded guilty to the offending. I give you credit for your guilty plea. Your guilty saves the court’s time and resources in conducting a trial into the matter. It also save the victim further stress and trauma in having to come to court to give evidence in a contested trial. The guilty plea also shows that you are remorseful and sorry for your actions.
8. You are married with 4 children. You have held several responsible positions in your community, your church and schools before your incarceration. I am also told through your own submission for mercy that you have achieved various certificates from various courses that you participated in during your time in remand in custody. That is a plus for you. However, having noted those, I am also minded to note the comments of Ward CJ in the case of R v Ligiau & Dori [1985-1986] SILR 214 whereby he stated that in sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crime.
9. I am also informed that you were remanded in pre-trial custody since the 30^th January 2018. I have noted that your case had been delayed for more than 4 years. The cause of the delay in the timely prosecution of this case is nothing to do with you. It was mostly caused by the office of the DPP and especially with a number of changes of prosecutors. A proposal sent by your lawyer in 2020 to the office of the DPP was not addressed by that office until 2021.
10. For the type of offences that you are charged with the sentences imposed on previous cases ranges from a suspended sentence to one of imprisonment. In your case you have been remanded in custody for more than 4 years and taking into account the peculiar circumstances in your case, it is my view that you have in fact served a sentence more than what the appropriate sentence should have been.
11. For the offence that you have committed, I put your starting point at 2 years imprisonment. For the aggravating features in your case, I increase that sentence by I year. For the mitigating features and especially your early guilty and the substantial delay in the prosecution of your case, I reduce that sentence by 2 years. I hereby sentence you to 12 months imprisonment. Since you have spent 4 years in pre-trial custody, I direct that you be released at the rising of the court.

Orders of the court

1. The defendant is convicted of 1 count of indecent act contrary to section 138 (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 12 months imprisonment.
3. The defendant is to be released at the rising of the court.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge