Regina v Tu'u [2016] SBMC 16; Criminal Case 254 of 2016 (27 June 2016)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 254 of 2016

REGINA

v

ERICK JACKSON TU’U

Crown: Ms. F. Fakarii of the Office of the Director of Public Prosecutions
Defence: Accused in person
Guilty Plea: June 15, 2016
Sentencing submissions: June 17, 2016
Sentence: June 27, 2016

SENTENCE

[1]. You pleaded guilty to indecent assault of a 2 year old female by the name of Francina George Netty, contrary to section 141(1) of the Penal Code. It carries a maximum penalty of 5 years imprisonment.

[2]. On 25^th of March 2016, you were drunk and sitting inside a kitchen at Taba’a settlement in Central Honiara. At that time, the victim who was a child and related to you as your granddaughter walked in that kitchen. At that time, she was naked. When she was close to you, you held her armpits and lifted her up above your head. You moved her front body close to your head and licked her vagina. After that, you proceeded to rub her vagina with your right fingers. You were then intercepted by another villager named George Sala who removed the victim from you and eventually chased you out of the kitchen.

[3]. This brief facts show how you committed this offence against this little, innocent and vulnerable child who unfortunately become a target to satisfy your sexual gratification.

[4]. From these facts, the following are features of aggravation I found. For purposes of convenience, I listed them as follows:

• (i) The victim is only two years of age at the time of the offending,
  
• (ii) You are related to the victim as your granddaughter. Therefore, by that relationship, there is an element of trust and responsibility expected of you to her. Instead, you abused that trust and acted contrary to what is expected of a grandfather, and
  
• (iii) You were drunk with alcohol when you committed this offence. It is trite law that when alcohol in the commission of the offence amounts to an aggravating feature.
  

[5]. Whilst I consider those aggravating features, there are also some mitigating features which I am bound to consider in your favour. These are:

• (i) You pleaded guilty to this offence which not only saves the Court’s time and resources but also shows that you are an honest person,
  
• (ii) You are remorseful for what you have done and promised not to repeat it in future,
  
• (iii) You are a married person with family responsibilities. You worked as a chainsaw operator and supported your family with monies earned from it, and
  
• (iv) Your bother had paid $500 on your behalf to the families of the victim as form of customary compensation.
  

[6]. In your case, I will not consider you as a first time offender since you had one prior conviction for simple larceny.

[7]. Whilst I take into account your remorse and your family will be affected by your incarceration, you ought to know of these consequences before committing such an offence.

[8]. The Courts in our jurisdiction have echoed from time to time the need to discourage sexual offences and this includes indecent assault. When the victims are young children, it is expected that the perpetrators will be treated with minimal leniency. The reason is simple and that is to protect young children so that person like you do see or use them as sex objects but as precious souls who will grow up to become useful members of our societies.

[9]. The victim you indecently assaulted is only 2 years of age. What you had done to her is unimaginable, difficult to comprehend, so sickening and showed total disrespect to her dignity as a small child. I cannot accept your explanation that you were so drunk and that was why you did this to her. That explanation is a mere excuse and does not reflect really reflect your conduct. Your conduct at the time of the offending and afterwards clearly showed you were conscious of what you were doing. By that I mean, you had done perfectly what you wanted to the victim and left the kitchen as soon as George Sala chased you out. You followed his orders perfectly.

[10]. The sentence that I will impose on you must reflect the communities’ revulsion and the Court’s disapproval of this kind of offence. It must carry an element of deterrence so that the objective seriousness of this offence is not denied in passing of sentence. In other words, it must discourage this kind of attitude shown in your case. Not only that, but it must also able to reform you so that when you release from prison you may become a law abiding person.

[11]. Several cases have been referred to me by counsel from the Crown for purposes of the sentencing tariff. For guilty plea matters, the range seemed to be from 1 year –2 ½ years depending on the facts and severity of each case.

[12]. From those cases, the case of R v Pana,^[1]is similar to your case. In that case, the offender was charged with defilement and indecent assault of a 3 year and 7 months old child. He committed the indecent assault offence by undressing her and rubbed her vagina with his fingers. He pleaded guilty albeit, late during the course of the trial and was sentenced to 2 years imprisonment for the indecent assault charge.

[13]. In your case, your level of participation especially for the indecent assault charge was beyond Pana. Also, you have not learnt from your past offending. This differentiates your case from Pana’s case.

[14]. Therefore, since this is a guilty plea matter, the appropriate sentence in my view after I carefully considered and balanced all the mitigating, aggravating features and the need for deterrence is 2 ½ years imprisonment.

[15]. Accused has 14 days right of appeal.

ORDERS OF THE COURT

(A) Impose 2 ½ years imprisonment.

(B) Time spent in custody is to be taken into account.

....................................................................................
THE COURT

Augustine Aulanga - PM

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^[1] [2013] SBHC 88; HCSI-CRC 402 of 2008