R v Meso [2019] SBMC 18; Criminal Case 16 of 2015 (5 April 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 16 of 2015

REGINA

-V-

FRANCIS MESO

Dates of trial: November 2^nd, 2018 – February 19^th, 2019
Date of Judgment: March 5^th, 2019
Date of sentence: April 5th, 2019

Mr. Bradley. Dalipanda for the prosecution
Mr. Clifton. Ruele for the defendant

SENTENCE

Introduction:

1. Mr. Francis Meso, I found you guilty after full trial and convicted you on 5^th March 2019 of two (2) counts of Indecent Assault contrary to section 141 (1) of the Penal Code (Cap. 26). I now proceed to deliver a just and appropriate sentence for your case.
   

Brief Facts:

2. The brief facts gathered from the evidence in trial revealed that, on an unknown date between 1^st of December 2014 and 1^st of February 2015, at Taebirias village, Vella la vella, Western Province, you instructed both victims; Grace Lezutuni (9 years old) and (Melsie Zitukalo (9 years old) to accompany you down to seaside and they did as was told. The victims followed you down to seaside and upon the arrival at seaside, you disrobe your trouser and told the victims to hold your penis. The victims took turns and held your penis.
   

Max Penalty:

3. The maximum penalty for Indecent Assault contrary to section 141 (1) is five (5) years imprisonment. This of course mirrors the minds of those who are responsible to make our laws or legislatures, that is to abhor, discourage and detest such offending in our slowly developing Christian nation^[1].
   
4. It is trite law that the maximum penalty is normally reserved for the worse type of offending and each case are dealt with per their own unique set of facts and merits. Cases defer with the nature of offending and your level of culpability.
   

Aggravating factors:

5. Having perused the brief facts, these are of course the apparent aggravating factors in you case:
   
   • 5.1. The offending involved some pre-planning – From evidence, it revealed that there is some clear form of a sophisticated pre-planning, you led both victims to seaside, an area that was isolated before you move into your primary aim, that is to show them your penis, and had them to hold it.
     
   • 5.2. The huge age disparity – There was a huge age disparity between the victims and yourself at the time of offending. They were both 9 years old and you were 72 years of age. Clearly, this is some 63 years’ age difference. This shows the power imbalance between you and the victims. You capitalized on your adulthood or maturity to manipulate and lure the victims who vulnerable persons into your trap to satisfy your self-centered and disgusting sexual gratifications.
     
   • 5.3. Offences were committed against two 9 years old girls – The two victims had to experience an unsightly scene and conduct at their very young age and early stage in life. Not only that they saw your penis but you had them to hold it which they did because of their vulnerability. This encounter and images will affect them badly and become part of their memory for as long as they shall live.
     
   • 5.4. Breach of trust – The evidence revealed that you are related to the victims as a grandfather. As a grandfather or an elderly person in the village, you were the one who is expected to be overloaded with knowledge of cultural norms, practices and morals. You were supposed to be directing and teaching the upcoming generation on the right and proper path against the challenges of this modern technologically driven world. The victims should seek learning from you and expect nothing but pure respect and care, instead you acted otherwise when you allow your sexual pleasures to overshadow your genuineness in your society. You have breached the trust being vested on you.
     

Case authorities:

6. I appreciate the efforts rendered by counsels; Dalipanda and Ruele to provide these case authorities to assist this court to arrive at a just and fair sentence.
7. In R v Rukarae^[2] The Accused was sentenced to 3 years concurrent after full trial for two counts of Indecent Assault. The victim was 10 years old at the time of offending, the Accused was her 55 years old grandfather and they lived in the same house. On the first occasion, the Accused showed or exposed his penis to the victim, this was while he was standing close to the victim. He explained it to the child as an organ used for sexual intercourse with females. On the subsequent occasion, the Accused silently walked over to her, held her buttock and turned her to face up from her original sleeping position. It was at that stage he held her body inside her trouser. The victim realised this, got up and cried. This made her parents came to her during that night and eventually located the accused who at that time was hiding at a corner inside the house.
   
8. In R v Okisi,^[3] the court imposed 3 years’ concurrent sentence on the offender for 5 counts of indecent assault against a 13-year-old female. This was following a trial. This case also involved a breach of trust since the offender was the step father of the victim.
   
9. In R v Tebitanga,^[4]the accused was convicted after trial for rape, attempted rape and indecent assault, over a 15-year-old victim who was his granddaughter. The accused forced the victim to accompany him to another village in the Western Province but instead raped her along the way. The indecent assault was committed before he raped her in the bush near the main road. He was sentenced to 2 years’ imprisonment for the indecent assault charge to run concurrent with his other charges.
   
10. In R v Tenu,^[5] the court imposed a sentence of 1 year imprisonment for the accused who was convicted after trial for charges of indecent assault beside his other defilement charge. The victim in this case was a 12-year-old girl who was the granddaughter of the accused. That sentence reflected the compensation payment to the victim’s family, the very old age of the offender at the time of sentence and the delay it took from the time the offence was discovered and up to the time it was finalised in court.
    
11. In R v Pana,^[6]the accused pleaded guilty during the trial for one count indecent assault and one count defilement over a 3 year and 7 months old child who was his niece. In that case, the accused touched the vagina of the child before he had forced sexual intercourse with her. The victim eventually contracted sexual transmitted disease from this offending. The trial court imposed a sentence of 2 years’ imprisonment for the indecent charge and 14 years for the defilement. He appealed against these sentences and the 2 years’ imprisonment term remained unaltered by the Court of Appeal.
    
12. Having outlined the above cited case authorities, it reveals that the sentencing range normally imposed by the courts for indecent assault against children below 15 years’ ranges from 1 year to 5 years’ imprisonment for charges under section 141 (1) of the Penal Code. The circumstance of offending or how you committed the offence and the level of culpability guides the court to pitch the starting point.
    

Sentencing principle:

13. In Sahu v Regina^[7] the Court stated:

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

Sentencing remarks:

14. Children are regarded as the vulnerable persons in our society, basically because they are the very weak ones and are more susceptible to changes from their surroundings and environment they brought up in. They do not have the directive instincts and does not normally take bold stand to say “no” to things requested by adults but typically obeys when they are requested to do things.
    
15. Your actions on the date of offending can best be described as senseless, disgraceful and selfish. You have detached the part of their childhood which they were expected to enjoy, their innocence and clear-minded trait which all other children have enjoyed prior to entering adolescent stage and adulthood. You have become their darkest memory which will remain in their minds in their entire lives.
    
16. Your illegal conduct reflects the slowly decaying moral, cultural and Christian norms in our societies today. You were supposed to be the one who these children ran to for love, care and respect. Your expected duty was to impart in these children the required attributes, attributes of self-respect, worth and dignity. You instead did the opposite.
    
17. Our communities and societies need to experience the standard of decency and be safe from those who indulge in themselves with immoral thoughts and or brain-fighting.
    

Starting point:

18. In R vey^[8], Thomas J, made the same approach which is equally applicable in our co:

“An offender cannot shield himself under the hardship he or she crea creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to the temptation.^”[9]

19. Having considered the abovementioned aggravating factors including the circumstance of the offending and due consideration to mitigating factors provided, I see it appropriate that the starting point is 5 years’ imprisonment.
    

Mitigating factors:

20. I take due account to the following factors as mitigation in your case: -
    
    • 20.1. First time offender – You are a first-time offender and for the past 60 years you have been a law-abiding citizen. Hence, I agree there’s prospect of rehabilitation.
      
    • 20.2. Very old age – you are now in your 70’s, hence, any sentence this court will impose must consider this factor as well. However, it will not cloud your level of culpability and how you committed the offence.
      

Issue of Delay:

21. For the issue of delay, I have gone through the record of proceedings and found out that you did contributed to this delay by failing to appear on numerous occasions for which a warrant of arrest was issued for your arrest. You were then arrested around July 2018. Therefore, I must say that this delay is not an undue or unreasonable one but one that you will bear responsibility for it. Nonetheless, I agree that it will also affect the sentence for your case because there is part delay on the Court’s and crown’s part not to constructively and effectively progress this matter on some past occasions.
    

Sentencing consideration:

22. I hereby reduce 8 months to consider that you are a first-time offender and 4 months for the fact that you are now in your very old age and further 8 months for some delay done in Court’s and crown’s part.
    
23. The resulting sentence is therefore, 3 years 4 months’ imprisonment and since both counts emanated out of the same set of facts and transaction or part of the same criminality, although separate victims, I see it appropriate that this court must impose a concurrent sentence.
    

Sentencing Order:

1. I hereby sentence you Mr. Francis Meso as follows:
   • 1.1. Count 1 – Indecent assault under section 141(1) of the Penal Code against Grace Lezutuni – 3 years and 4 months imprisonment.
     
   • 1.2. Count 2 – Indecent assault under section 141(1) of the Penal Code against Melsie Zitukalo – 3 years and 4 months’ imprisonment.
     
2. All sentence will run concurrent meaning, you will serve 3 years4 months’#8217; imprisonment.
   
3. Time spent in custody or any pre-detention period must be taken into account.&#nt.
4. 30 days right of appeal applies.
   
5. O"5">Order accordingly.
   

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] From the Preamble of the Solomon Islands Constitution 1978, “We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands”.
^[2] [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016)
^[3] [2008] SBHC 79; HCSI-CRC 72 of 2007
^[4] [2013] SBHC 24; HCSI-CRC 75 of 2009
^[5] [2015] SBHC 85; HCSI-CRC 118 of 2014
^[6] HCSI – CRC No. 402 of 2008
^[7] [2012] SBHC 122
^[8] (1991) 53 A Crim R 1 (Qld CA)
^[9] Quoted from R v Foa [2010] SBHC 92; HCSI-CRC 256 of 2008