R v Anak [2022] SBHC 91; HCSI-CRC 298 of 2022 (17 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Anak
Citation:
Date of decision:	17 November 2022
Parties:	Rex v Raya Tuan Anak
Date of hearing:	15 November 2022
Court file number(s):	298 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr Rayan Tuan Anak is convicted of 1 count of sexual intercourse – child under 15 years contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The time spent in pre-trial custody is to be deducted from the total sentence. 3. Right of appeal.
Representation:	Mr. Andrew Meioko for the Crown Ms Tracey Aisa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016 [cap 26] S 139 (1) (a) Penal Code [cap 26] S 24 (2)
Cases cited:	R v Ligiau & Dori [1985-1986] SILR 214, R v Phoboro [2013] SBHC 8, R v Rayson Joe [2019]

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 298 of 2022

REX

V

RAYA TUAN ANAK

Date of Hearing: 15 November 2022
Date Decision: 17 November 2022

Mr Andrew Meioko for the Crown
Ms Tracey Aisa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Ryan Tuan Anak is charged with 1 count of sexual intercourse- child under 15 years contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He pleaded guilty to the charge and he was convicted accordingly. He now appears before me for sentence.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. These laws are enacted to safeguard and protect young girls from sexual exploitation. Notwithstanding the maximum sentence, the courts are empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence depending on the peculiar circumstances of each case. It is on that basis that the court is entitled to take into account the aggravating features and mitigating features in each cases.
3. In your case, the agreed facts are that you are a Malaysian national. You are 48 years old. The complainant is a 12 years old girl from Choiseul Province. You asked the complainant to have sex with her twice and you gave her $50.00.
4. On an unknown date between 1^st September 2021 to 12^th September 2021, the complainant was residing in the Camp Manager’s house at Tuzu logging camp. On or about 8.00pm, you were playing games on your mobile phone and you saw the complainant. You went behind the kitchen house and called her. The complainant came to you. You asked to have sex with her and she agreed. You laid her on the ground and removed her clothes. You pulled down your trousers to your knees, lay down on top of the complainant, pushed your penis inside her vagina and had sexual intercourse with her. Following the incident, you paid to the complainant’s family the sum of $10,000.00. The matter was then reported to the police and you were arrested and charged.

Having stated the facts in this case, I must now discuss the aggravating and mitigation features in your case. It is submitted by Mr Meioko for the crown that the starting point is for this court to consider and take into account the sentencing principles enunciated in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 412. The court had set out from factors in that case that courts should be guided by in the sentencing of sexual offenders like yourself. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself. Having set out those guidelines, it is submitted by Mr Meioko that there is presence of a huge age disparity in your case. From the agreed facts, you were 48 years old and the complainant was only 12 years old. The age disparity between you was one of 36 years. That is a very huge age difference. You could have been seen as a father to the complainant. That aspect makes your offending serious. It is further noted by the court that the complainant was only 12 years old and you have corrupted her at a very young age. I have noted that the complainant had consented to the act of sexual intercourse but it is no defence for you. In fact it is an aggravating feature that the complainant was a child of 12 years.

5. On your behalf it is submitted by Ms Aisa of counsel that you have pleaded guilty to the offence. Your guilty plea shows you are remorseful. It also shows that you have owned up to this offending and you are willing to face the consequences of your action. The guilty plea also saves the court’s time and resources in having to conduct a trial into the matter. It also saves the complainant further stress and trauma in having to come to court and to give evidence in a contested trial. In short, I give you credit for your early guilty plea.
6. You have no previous conviction which means that you are a person of previous good character. You are a Malaysian national and married with four children. You are currently unemployed and 49 years old. Three of your children are not attending school because of financial constraints. Only your youngest child is at school. Your family relies on you for financial support. However you are unable to support them now because of your current status. Having stated your personal circumstances, I am also minded to note the views of the court in the case of R v Ligiau & Dori [1985-1986] SILR 214 and R v Phoboro [2013] SBHC 8. It was the view of the court in those cases that in sexual offences cases, matters personal to an accused person are likely to have less impact on sentence than in other serious crime.
7. I have also noted from the agreed facts that you paid the sum of $10,000.00 to the complainant’s family for the wrong that you have done to the complainant. That payment of compensation had brought back normalcy between you and the complainant’s family. I am also informed that you have spent a period of 6 months and 11 days in pre-trial custody. That period of time spent in pre-trial custody will be taken into account in your sentence. You have also been faithful in attending to this matter until its completion.
8. Both counsel for the crown and the defence had referred me to various cases previously dealt with by the court on similar charges. I have perused the cases and have noted them. Ms Aisa had further submitted that this case could be similar to the case of R v Rayson Joe [2019],,,,,,,,,,,, on the character of the complainant. I do not think that the character of the complainant in this case is similar to the Rayson Joe’s case.
9. Having considered the facts in this case, I will put your starting point at 4 years imprisonment. For the aggravating features in the matter, I will increase sentence by 12 months. For the mitigating features and especially the guilty plea and your faithful attendance in this matter, I will reduce sentence by 10 months. Total sentence to serve is one of 4 years and 2 months imprisonment. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the Court

1. The defendant Mr Rayan Tuan Anak is convicted of 1 count of sexual intercourse – child under 15 years contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The time spent in pre-trial custody is to be deducted from the total sentence.
3. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge