Ului v R [2023] SBHC 54; HCSI-CRC 270 of 2021 (14 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ului v R
Citation:
Date of decision:	14 July 2023
Parties:	Basil Ului and David Mae v Regina
Date of hearing:
Court file number(s):	270 of 2021
Jurisdiction:	Criminal
Place of delivery:	Magistrate Court
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The magistrate proceeding and sentence in the case of Ului and Mae is gross erroneous in law. 2. The sentences brought on an appeal is quashed. 3. Prosecution to process this case through preliminary Inquiry for this court to hear it. 4. No further orders.
Representation:	Belapitu D for the Crown Kwalai D for the Appellants
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 139 (1) (b) Juvenile Offenders Act [cap 16], S 2, S 4
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 270 of 2021

BASIL ULUI AND DAVID MAE

V

REGINA

Date of Ruling: 14 July 2023

Belapitu D for the Crown
Kwalai D for the Appellants

RULING ON APPEAL

Maina PJ:

The Appellants pleaded guilty at the Juvenile (Magistrate) Court and convicted upon own pleas on one count each for sexual intercourse with a child under 15 years old contrary to section 139 (1) (b) of the Penal Code as amended by the Penal Code (Sexual Offences)(Amendment) Act 2016.

The presiding magistrate sentenced the appellants on each for 2 years imprisonment – 15 months suspended and the reminder of 9 months imprisonment to be served by each appellants.

The appellants appealed the sentences that the learned Magistrate at the Juvenile erred in law:

(a) when she sentenced the juveniles to 2 years imprisonment and suspended15 months’ imprisonment of the sentence,
(b) The sentence of 2 years imprisonment with the 15 months suspended sentence and for each of the juveniles to serve with the remainder of 9 months of the sentence in prison is manifestly excessive,
(c) That there should be a substituted sentence according the law,
(d) Any other orders the court thinks fit

Before I may deal with the appeal, there is preliminary but important issue that arise and relate to the jurisdiction of the magistrate at juvenile court. It occurred when the magistrate convened or constitute to exercise the jurisdiction under the Juvenile Offenders Act (Cap 14).

The introduction of the Presiding magistrate in the sentence at the Juvenile court at para 1 and 4 stated:

As stated in the introduction of the sentence at the Juvenile court at para 1 and 4, the presiding Magistrate stated:

“1. The two defendants in this case are juveniles. Mr Ului is 14 years old and Mae was 14 years at the time of offending. The victim is also juvenile. At the time of offending, she was14 years old”.
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4. In terms of jurisdiction, I note that the penalty for the offence is 15 years. Although the maximum is beyond my jurisdiction, I can still proceed to sentence these defendants because sections 4 and 9 of the Juvenile Offenders Act which gives the authority to do so”

The above statement by the presiding magistrate prompt me to check the jurisdiction of the magistrate when sitting at the juvenile court.

Briefly, the Juvenile Offenders Act provide for the procedures when a juvenile committed the offence. Under section 2 of the Act, a child is person who is under the age of fourteen years.

From this provision the age of fourteen years is the age of a person charged with the offence that magistrate are oblige or must convened as Juvenile Court and the jurisdiction on the offences.

Section 4 of the Act provide for Juvenile court other than the High Court exercise of its criminal jurisdiction in hearing or inquiring into charges against children or young persons.

This provision gives the magistrate in the Juvenile court in the exercise its criminal jurisdiction to hear the offence committed by an offender under 14 years of age. It does not give the jurisdiction to the magistrate at the Juvenile Court to hear or deal with offences beyond the magistrate’s jurisdiction.

Noted from the sentence quoted above, Mr Ului was 14 years old at the time of sentence and Mae was 14 years at the time of offending. The offence which the defendant were charged is one count each on sexual intercourse with a child under 15 years old contrary to section 139 (1) (b) of the Penal Code as amended by the Penal Code (Sexual Offences)(Amendment) Act 2016. The maximum penalty is 15 years imprisonment.

Such act or hearing the offence committed by the two accuses and subsequent sentencing for an offence of maximum penalty of 15 years imprisonment is beyond the jurisdiction of the Magistrate.

For the magistrate to hear the offence beyond the jurisdiction at the Juvenile Court, the jurisdiction to try such must be invested or conferred to them under section 27 (3) Magistrate Court Act. That does not or seems to exist at all with this case, than the presiding magistrate made reference to sections 4 and 9 of the Juvenile Act as the authority that conferred the jurisdiction to her.

With the above reasons, the presiding magistrate had acted when she heard the accuses charges on sexual intercourse with a child under 15 years old contrary to section 139 (1) (b) of the Penal Code as amended by the Penal Code (Sexual Offences)(Amendment) Act 2016 that she do not have jurisdiction or beyond the jurisdiction of the magistrate.

The magistrate’s process, proceeding in the case and sentences of the two defendants Ului and Mae is therefore gross erroneous in law, and the sentence accordingly is quashed.

Order of the Court

1. The magistrate proceeding and sentence in the case of Ului and Mae is gross erroneous in law.
2. The sentences brought on an appeal is quashed.
3. Prosecution to process this case through preliminary Inquiry for this court to hear it.
4. No further orders.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge