R v Wane [2024] SBHC 21; HCSI-CRC 434 of 2023 (1 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Wane
Citation:
Date of decision:	1 March 2024
Parties:	Rex v James Nako Wane
Date of hearing:	8 December 2023
Court file number(s):	434 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I will sentence the accused to 90 months imprisonment. Defendant is entitled to any pre-trial custody time. This punishment is made to deter like-minded offenders and to address a prevalent crime against children since 2016.
Representation:	Ms Myrella for the Crown Mr Kwalai for the defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (2), 139 (1) (a) , S 139 (2) (a)
Cases cited:	R v Pige [2023] SBCA 36, R v Sinatau [2023] SBCA 38, R v Ramaia [2021] SBHC 96, R v Bonuga [2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 434 of 2023

REX

V

JAMES NAKO WANE

Date of Hearing: 8 December 2023
Date of Sentence: 1 March 2024

Ms Myrella for the Crown
Mr Kwalai for the Defendant

SENTENCE

1. Court convicted you of two counts of sexual offending. Court will now determine the appropriate punishment for the two counts.
2. The first count was indecent act contrary to Section 139 (2) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 – “the 2016 Act”. The second count is sexual intercourse with a child under 15 years contrary to Section 139 (1) (a) of the 2016 Act.
3. On your entering of an early guilty plea on 24/11/2023, Counsel agreed on the summary of agreed facts. Court will recite in full the summary of agreed facts:-
   • (i) The defendant in both counts is Mr. James Wane Nako.
   • (ii) The defendant was 21 years old at the time of offence.
   • (iii) The complainant was 12 years old at the time of offence.
   • (iv) The defendant and complainant were in a boy and girl relationship.
   • Indecent Act Case
   • (v) On an unknown date between the 1^st June 2023 and 30^th June 2023 the defendant was working as a bus conductor.
   • (vi) In the evening part of that day, he met the complainant along the road at Mbokona, West Honiara and he asked her if she can be his girlfriend.
   • (vii) She accepted by saying yes.
   • (viii) Soon after, the defendant and complainant decided to go together to a secluded area beside the road where banana trees were growing.
   • (ix) When they got there, the defendant and the complainant got naked and then defendant rubbed his penis on the complainant’s vagina.
   • (x) Then his phone rang so the two wore their clothes again and left.
   • Sexual Intercourse Case
   • (xi) On the 23^rd June 2023 the defendant was working as a bus conductor and met the complainant again.
   • (xii) At that time, it was around 8pm.
   • (xiii) They had a conversation and then the defendant asked the complainant if she would like to have sex.
   • (xiv) The complainant agreed and both of them went to the Central Bank area at Mbokona.
   • (xv) After having sex, the both of them walked along the road.
   • (xvi) It was while they were walking when the complainant’s aunty saw them and then the relatives of the complainant accosted them and took the defendant to their house.
4. Court will focus on the second count, the more serious offence – Section 139 (1) (a) of the 2016 Act – sexual intercourse with a child under 15 years. The seriousness is reflected in the maximum penalty of life imprisonment, where the child is under 13 years (Section 139 (1) (a) of the 2016 Act). The facts revealed that the victim was a child under 13 years. She was 12 years old (repeat paragraph 3 (iii) above). For the first offence, the victim being 12 years (under 13 years) under Section 139 (2) (a) of the 2016 Act the maximum sentence is 7 years imprisonment.
5. Counsel agreed in their sentencing submission that the starting point sentence for the second offence is 8 years according to two recent Court of Appeal binding precedents (Rex v Pige [2023] and Rex v Tony Sinatau [2023]. In the case of Sinatau the Court of Appeal held that in all cases involving unlawful sexual intercourse with a child under 15, where the victim is below the age of consent, the starting point sentence will be 8 years, which I am bound to follow.
6. Then I will uplift the starting point sentence due to the presence of serious aggravating features present in your offending. The aggravating features to justify the uplift of the starting point sentence are:-
   • (i) Young age of the victim – victim is a child below the consenting age. She was 12 years old, at the time of offending. It means victim’s breast were just starting to stand out. Very young and vulnerable girls should be kept clean and pure from sexual impurity. This is why the 2016 Act prohibits sexual intercourse or indecent act with a child under 15 years. Men must take extra care not to engage in sexual activities with young girls. Young girls may appear big in their bodies, but their age will tell that they are still a child protected by the 2016 Act from all forms of sexual abuse and offending.
   • (ii) Age disparity – there is an age disparity of 9 years between the defendant and the victim. You were 21 and she was 12. As an older person there is an expectation of being responsible and accountable in protecting young girls from sexual offending (R v Ramaia [2021] SBHC 96). I agree with this preposition as having roots in custom because we are a communal oriented society.
   • (iii) Trauma and psychological effects on the victim – Court must always take judicial notice of the long-term impact of sexual abuse on the child victim, despite lack of evidence (R v Bonuga [2014] SBCA 22). Defence counsel submitted that there was a sexual relationship here. That submission should not be heeded because it ignores the intent under the 2016 Act to protect young girls under 15 years from all forms of sexual offending and abuse. This point is carried further in paragraph 9 below.
7. For the above 3 aggravating features combined, I will uplift the starting point sentence to 12 years imprisonment. This uplift of 4 years is justified noting that the maximum penalty for the more serious second count is life imprisonment.
8. However, there are mitigating factors present that will work in your favour to reduce the sentence. Mitigating factors are – early guilty plea; first time offender with no previous convictions and boy and girl relationship, defence counsel submitted.
9. Defendant should receive a 30% reduction for early guilty plea. That would mean 3 years and 6 months reduction. For first time offender with no previous conviction, a one-year reduction is justified. Defence counsel furthermore submitted that, since this offending was between lovers (boy and girl relationship), Court should consider this and allow some deductions. Defence counsel even suggested to me that his client should have a suspended sentence based on two persuasive authorities of this Court^[1], on the basis of love relationship, implying there was consent. Court disagrees. Like I said above, young girls under 15 years are protected by law from sexual abuse in the 2016 Act. Culprits should not come to Court and run the argument that they were acting out of a love relationship between them and young girls with whom they have sexual intercourse. They should know that for young girls under 13 or 15 their sexual purity is protected by the 2016 Act. And culprits must stay clear from such young girls in all sexual approaches and activities. Culprits must not even come near to girls under 13 or 15 years at the first place. The 2016 Act was made to protect such vulnerable young girls from sexual abuse by men. It is an abuse to be in a relationship with very young girls under 13 or 15. Such very young girls could get pregnant. Such very young girls can get distracted from school. Such very young girls should preserve their virginity for the right time (in marriage). Court does not accept this submission by defence counsel. There is no deduction allowed for this last mitigating factor on love relationship as submitted by defence counsel. I noted with cultural insensitivity that defendant met with the victim one evening, asked her to be his girlfriend and went straight to have sex, but distracted by his phone call. That is an abuse against custom and Christian teaching, where virginity is preserved for the right occasion (marriage).
10. Allowing deductions in respect of valid mitigating factors, Court will deduct 4 years and 6 months. That will leave me with a head sentence of 90 months. I will make this concurrent and so do not need to consider the sentence for the first count separately. If I make the sentence consecutive, by considering punishment for the first count separately, it will unreasonably exceed 90 months. Additionally, I am dealing with two counts together so a concurrent sentence is justified. Furthermore, as a young offender you still have life ahead of you. You should not receive longer than 90 months imprisonment. Hence I should not consider sentence for the second offence separately. The 90 months is adequate time for you to re-habilitate and come out a reformed citizen.
11. In the final analysis, I will sentence the accused to 90 months imprisonment. Defendant is entitled to any pre-trial custody time. This punishment is made to deter like-minded offenders and to address a prevalent crime against children since 2016.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] R v Taburi [2021] SBHC 34 and R v Joe [2020] SBHC 21.