Regina v Faramoa [2018] SBMC 5; Criminal Case 682 of 2017 (15 February 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 682 of 2017

REGINA

V

SISTO FARAMOA

Date of sentencing hearing: February 7, 2018
Date of sentence: February 15, 2018

Ms. Rizzu for Prosecution
Mr. Holara for the accused

SENTENCE

1. The accused pleaded guilty to three charges of indecent assault. Two charges relate to the form of indecent assault under section 141 (1) of the Penal Code while the other relates to the other category of indecent assault to offend the modesty of a victim prescribed under section 141 (3) of the Penal Code.
   
2. The maximum penalty for the charge under subsection (1) is 5 years imprisonment while the maximum penalty for the charge under subsection (2) is 1 year imprisonment.
   
3. At the various times of the offending, the accused was 34 years of age and a married man while the victim was still a 6 year old infant.
   
4. The facts of the case revealed that in 2013, the victim, Ms. Caroline Gesuna, was a student and was attending preparatory class in Honiara. She lived at Mbua Valley with her parents. That year, the accused also lived with them. He related to her as her uncle since he was the husband of her father’s sister.
   
5. The accused occupied one of the rooms where normally the victim would enter into and play with his son who was also living with them.
   
6. On an unknown date in 2013, she returned home from school and was playing with accused’s son inside his room. His son exited the room and when the accused and the victim were alone inside the room, he asked her to remove her clothes. She removed her clothes as instructed and as she was still in the process of undressing, the accused held her cloths and assisted her to remove them from her completely. He then used his finger to rub her vagina and thereafter, he licked her vagina as well.
   
7. It is clear from the facts that that he did these to her on both occasions.
   
8. Also, on an unknown date in the same year, the accused showed her a half-naked photo of a female from his mobile phone and said to her what if she was that naked female walking towards him. She remained silent and ashamed after been showed that obscene photo.
   
9. She didn’t report her parents immediately after the incidents. The reason for this was not explained in the facts. It was when they were in Fiji that she finally told her father what the accused had done to her on those three occasions.
   
10. The law in our jurisdiction has made it plain and simple that indecent assault especially the one provided under section 141 (1) of the Penal Code is a serious offence. Those who committed this offence are expected to pay a heavy price of facing sterner custodial sentences. The rationale behind this is simple, and that is the court must protect victims of sexual assaults from the evils of sexual predators. It is only through eradicating this that our societies will be safer for our children and their children’s children. One of the forms to achieve that is through imposition of deterrent sentences so that the offenders will carry home with them a lifetime message that they will never do it again, knowing that the consequence that will follow suit is too obvious.
    
11. In the present case, the accused is in a very advanced age compared to the victim at the various times of the offending. He was 34 years while the victim was only 6 years, an age difference of 28 years. He used his maturity to lure her and induced her into this unchaste and wicked acts. He is so lascivious and preyed on her infancy to satisfy his lustful or lewd desire. He invaded her and robbed her of her innocence and exposed her prematurely to such immorality that is not appropriate to her as a child. Even though there is not any victim impact statement before me, the fact that she reported this matter to her father after she was sexually assaulted by the accused is self-evident that she will always remember what her uncle had done to her. She will definitely grow up and live with this reality for the rest of her life.
    
12. He committed the offence on two occasions involving playing with her most sensitive body part or her sexual organ in other words. He corrupted her young and innocent mind by showing her a nude picture that is obscene for her view.
    
13. His attitude when carefully securitised is insidious because he had to ensure she was inside his room in order for him to carry out the indecent assault on her.
    
14. The accused is related to her as her uncle. They lived together in the same house at Mbua Valley in Honiara. He should consider him fortunate to have such kindness and generosity from the victim’s family in allowing him to live with them in the same house. Hence, he should treat her as her own daughter and should provide her with love, care and protection expected of him as a close family member and occupants of the same house. He instead abused her and did perfectly what no sane mature person can do to the very family who housed him. That is the least to be expected from him to give in return to the family of the victim.
    
15. These various aspects of this case show how he committed the offence is very serious. Therefore, this must be reflected in the sentence as well.
    
16. Both counsels have referred me to few case authorities^[1] as indication of the sentences I should impose for the present case. I have already considered those cases and the various sentences imposed by the Courts. However, I’m of the view that each case is to be decided on each set of facts applying common sense to it and adjudging it in light of the prevalent of this offence now as we speak. This means that if these offences are on the rise then it only makes sense for the Court to elevate its current sentence to reflect the present circumstances of the country. Otherwise, we will just stuck with the same old story, resorting to the pattern of sentence that does little if not, no deterrence at all in light of this phenomena.
    
17. In his mitigation, I take into account his guilty pleas. He was very remorseful to the extent that in his allocutus, he personally said sorry for what he had done to the victim and promised not to reoffend again in the future. He is a first time offender and a family man with huge responsibilities to shoulder back at home.
    
18. I give credit to all his mitigating factors and accorded due weight to them accordingly.
    
19. As I have earlier on alluded to earlier, the facts of this case is very serious within the category of offences under section 141 (1) of the Penal Code and a custodial sentence is clearly inevitable. It is really a question of how long he will spend in prison is what matters for me to consider.
    
20. The sentence I will pass must teach him a lesson for him not to commit this offence again in the future. It must also be directed to the group or class of people who are minded to commit this offence wherever they may be in this jurisdiction. This sentence must keep the wheel of deterrence moving so that people will come to know that if they commit sexual assaults, they will go to jail. The Court and our societies’ stand against sexual violence towards victims of sexual offences demands that form of sentence.
    
21. I consider the following as the appropriate sentence:
    
    • (a) Charges relating to section 141(1) – impose 3 years imprisonment each.
    • (b) Charge pursuant to section 141 (3) – impose 6 months imprisonment.
      
22. Order that all sentence will run concurrently meaning a custodial head sentence of 3 years is imposed.
    
23. I am urged to consider the issue of delay.
    
24. Normally, delay after a suspect is charged is relevant for consideration.
    
25. The accused was arrested and placed in custody on 6^th of June 2017. He was initially charged with attempted rape for the incidences that occurred inside the room. The matter proceeded at the Central Magistrate’s Court until the 13^th of September 2017 when he now represented by Mr. Holara. The matter continued with mentions and ensued with negotiations for reduction of the charges.
    
26. On 6^th November 2017, the prosecution then filed the reduced or the current charges and on the 5^th of December 2017 he entered guilty pleas to them. The matter was adjourned to 12^th of December 2017 at 1:30pm for hearing of the sentencing submissions but by then the learned defence counsel was already on leave and the court was asked to adjourn this matter to 19^th of January 2018. However, the matter was adjourned to 6^th of February 2018 since the presiding Magistrate would still on holiday during the month of January 2018.
    
27. So a period of more than 8 months has taken to finalise the case. It took almost 3 months for him to have a lawyer and almost another 3 months for negotiation and reduction of the charges. Thereafter, another 2 months this matter was unduly adjourned to accommodate the defence who is on leave so as the Court.
    
28. This case could have been dealt with in December 2017 if the defence had prepared its written submissions and expedited the case to avoid such unnecessary delays.
    
29. I find the substantial part of the delay was attributed to the conduct of the accused and his counsel. The decision to prolong this case and the need to finalise it last year lay within his means and his lawyer. However, I also that there is some delay resulted by the conduct of the prosecution to respond to the defence in relation to the plea bargaining and also by the Court for granting an adjournment to accommodate all parties attendance in Court.
    
30. To reflect some of the delays, I order 3 months is reduced from the 3 years imprisonment.
    
31. A final sentence of 2 years and 9 months imprisonment is imposed. Times spent in custody are to be taken into account.
    
32. 14 days right of appeal applies to any aggrieved party.
    
33. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] R v Dime [2016] SBHC 26; R v Tenu [2015] SBHC 85; R v Tebai [2007] SBCA 7; R v Kenel [2016] SBHC 75; R v Malachi [2014] SBHC 10; R v Zebettie [2014] SBHC 141; R v Rukara [2016] SBHC 14; R v Haka [2013] SBHC 15; R v Zama [HCSI-CRC NO. 160 OF 2013; R v Tewaia HCSI CRC NO. 437 OF 2009 and R v Tumulima CRC No. 397 of 2012.