R v Puisasa [2019] SBMC 21; Criminal Case 190 of 2018 (3 May 2019)

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

Criminal Case No. 190 of 2018

REGINA

-V-

CORNELIUS PUISASA

Date of Hearing: April 29^th, 2019
Date of Sentence: May 3^rd, 2019

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

SENTENCE

Introduction:

1. On the 29^th of April 2019, you were arraigned on the charge of Indecent Act on a child under 13 years of age contrary to section 139 (2)(a) of the Penal Code^[1] and pleaded guilty. I now enter conviction on your guilty plea and proceed to deliver the appropriate sentence for your case.

Agreed summary of fact:

2. The agreed facts reveals that on the 10^th of October 2018, at an unknown time during the day you invited the victim to the house you occupied then. You took her inside your bedroom and you close the door. You undressed the victim and placed the victim on the bed. You blindfolded the victim using your shirt and proceeded to physically touch her vagina using your fingers. Thereafter, you made the victim wear her cloths again and she left. The victim went home and informed her parents about what you did to her. She relayed the story with tears in her eyes, crying. As a result, her parents took her to the police station at Taro and Police officers assisted by referring her for medical check.
   
3. You were arrested, interviewed under caution, and charged for the offence of indecent act of child under 13 years old. During the Record of Interview with the Taro Police, you admitted to what you did to the victim.
   
4. The victim was examined by Dr. Benjamin Kere at Taro Hospital and on medical examination, she appeared calm, corporative with questions answered properly, on physical examination, she’s stable. Her face shows no signs of trauma. Her chest is normal, her extremities are normal and her genital area had no laceration or bruising. There was no bleeding or any discharge and her hymen is intact.
   
5. You were doing your practical training in the area of electrical study at Taro, Choiseul Province, when you committed the offence. You were 19 years old, single and a student at the time of offending.
   
6. The victim was a 6 years old child at the time of offending and attended kindergarten school at Taro, Choiseul Province.
   

Maximum Penalty:

7. The maximum punishment as prescribed under section 139 (2) (a) of the Penal Code (Cap 26) as amended by the (Sexual Offences) (Amendment) Act 2016 is seven (7) years imprisonment. The significant increase for this provision only reflects the attitude and mindset of our lawmakers to discourage, hate and abhor this type of unsightly crimes happening in our rural and urban communities. It also depicts the “no tolerance” approach and to punish offenders who continue to prey on innocent children to satisfy their selfish and ugly sexual gratifications.
   
8. I do recognize that the amendment was made subsequent to the some widespread of study in Solomon Islands and statistical data collection by non-government organizations,^[2]Ministry of Women, Youth and Children and Solomon Islands law reform commission. This was also highlighted in the case of Pana^[3].
   
9. It is well settled law in this jurisdiction that the maximum penalty is only reserved for the worst type of offending and that cases are considered according to their own set of facts. Hence, applying a blanket sentencing approach will only encourage foolish, imprecise and erroneous sentencing result.

Pertinent theme:

10. The pertinent theme that best match your case is; “The palpable consequences of decaying cultural norms, respect, love, dignity and security towards our nation’s children and the actual rise of lustful, immoral and sadistic behaviours in our rural and urban societies.”
    

Aggravating factors:

11. I have closely peruse the facts and noted the following to be the aggravating factors or matters of which makes your case serious: -
    
    • 11.1. There’s a huge age disparity of 13 years – You were 19 years old at the time of offending and the victim was 6 years old. This is about 13 year’s age difference. The substantial gap demonstrate the imbalance between the victim’s level of understanding compared to you, that is, you have capitalised on you advanced age and maturity to lure the victim into your web of lustful and immoral drives. You were at a mature age to easily understand the proper path to take and that is, to deliver what is most right and tolerable.
      
    • 11.2. There is element of pre-planning – It became apparent from the facts that you took the victim into your bedroom, closed the door, removed her cloths and blindfolded her before you plummet into committing the offence. This is an isolated area behind closed doors, hence, had it not for the victim speaking out, her parents would not have known about it. I am satisfied that you have thought about this before making your move.
      
    • 11.3. Blindfolded the victim before committing the offence – You took off your shirt and blindfolded her before you touch her vagina. Being without a clear sight of what actually happened but only felt touch on the vagina definitely aggravates the offending. The looming fear and nervousness of what might happen next was obviously excruciating for her given her age and vulnerability. I acknowledge the fact that being on blindfold avoids her sight to see the ugly conduct you did, which in my view would have severely affect her psychologically had she observed it, hence, this must minimize the gravity of this particular aggravating factor accordingly.
      

Case Authorities:

12. This particular amendment as reflected herein the charge against you is a relatively new one, hence, the difficulty to locate a case precedent in this jurisdiction which would capture the above provision. Therefore, I must take the stand to make a precedent in relation to the specific section for the offence of indecent act of child under 13 years old.
    
13. It is only proper in my view that the sentencing range applied in past cases regarding the old provision per indecent assault are useful guidelines to direct this Court to arrive at a just and fair sentence considering the current view behind the amendment to it. The circumstances of offending and facts surrounding the nature of offending per any cited cases can be distinguished to assist court to pitch an appropriate starting point.
    
14. In case of R v Pana^[4], the accused entered a late guilty plea during trial for one count of indecent assault contrary to Section 141(1) of the Penal Code and one count of defilement over a 3 year old 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.
    
15. In case of R v Rukarae^[5], Defendant was charged with 7 counts of indecent acts. He pleaded not guilty and the matter went to trial. The trial magistrate then found him guilty of 2 counts of indecent assault and convicted him accordingly. He was then sentenced to 3 ½ years’ imprisonment. The victim in this case was 10 years old during the time of offence and the accused is the grandfather. Facts revealed that the accused showed his penis to the victim and uttered words to the effect that it’s the organ used to penetrate female vagina. On another occasion the accused held the victim’s buttock and turned her to face up from her original sleeping position. It was at that stage he held her body inside her trouser.
    
16. Having compared the above two cited cases with the one at hand, it appears that their facts were so disturbing, the offenders committed the indecent act offences subsequent to other additional sexual offences. The facts of this case only state a touch on the vagina and nothing further, of course the age of the victim being a 6 years old child is considered serious. However, the age alone without any consideration to the nature of offending and level of culpability should not unnecessarily increase any starting point. Hence, it is my considered view, that when comparing the above cases with the one at hand, any starting point should be pitched in between the lower and mid-range of the sentencing scale for indecent act of child under 13 years old.
    

Sentencing principle:

17. You committed the act of indecency against a 6 years old child. At that age, a child would not normally know sexual conducts, indecency or even the functions of the human reproductive and sexual anatomy. You have become a part of her dark memory which will raise so many questions in her mind.
    
18. I do note that the victim in this case did not actually see what had unfolded because she was blindfolded. It was a touch on her vagina and no evidence to suggest that she being traumatised of what you did to her. In fact, the medical report reveals that she appeared calm, stable and normal during examination.
    
19. Nonetheless, due to the high rise of sexual and indecent offence cases^[6] coming before this court since last year, 2018, including matters committed to the High Court, I see it as a need for this Court to continue to send stern and bold message to yourself and those who wish to embark on this repugnant route that the Court will punish offenders who continue to roam our societies to prey on innocent children and practice such offences. Any sentence impose against you must incorporate both personal and general deterrence principle.
    
20. Given the circumstance of offending and or how you committed the offence and your personal circumstances, I do accept that rehabilitation is also appropriate in your case, but that I will further elaborate on when I land on the mitigating factors.
    

Sentencing remarks:

21. You are young person and still have a lot to learn and explore in life. This case must be lesson learnt for you to never do what you did again to any child or adult. It is totally sickening and courts in sentencing offenders for such crimes pass heavy punishment to give a stern message to offenders and likeminded people in the communities who wish to practice such crimes.
    
22. An offence of indecency against a child is far more serious compared to adult victim simply because children are an innocent souls, hence, such encounter will definitely be damaging to the progress of their physical, psychological and emotional upbringing.
    
23. It is time that you must now turn away from the lustful and immoral mindset which has deceived your mind into saying you won’t be in trouble and that fulfilment of your sexual pleasures is paramount. But when all is said and done, you are now before this court to face the punishment for your actions.
    
24. Learn to invest your time in things that will expand your career path to higher echelons. I acknowledge that everyone makes mistakes, but the bold thing to do is to accept your mistakes, learn and turn away from them because it will never move you forward but stagnant without constructive future goals. This is now or never, if it demands acceptance of the divine intervention, go for it, because all works of life hinges on our only divine savour.
    

Starting point:

25. Having averred the above aggravating factors, the circumstance of the offending and your level of culpability. It is my considered view that the appropriate starting point is 2 years imprisonment.
    

Mitigating factors:

26. I find the following to be the mitigating factors for your case: -
    
    • 26.1. Unequivocal guilty plea – You entered an unequivocal guilty plea on the charge of indecent act against you, I give you full discount of 25% to head sentence as provided in the case of R v Qoloni^[7]. You showed genuine remorse in court as well and accept the consequences of your actions. Definitely, your guilty plea has saves the courts time and resources if this matter was to go to trial. Also it avoids the strain to have the victim having to recount on the unpleasant incident.
      
    • 26.2. First time offender – You are a youth of 20 years old and this is the first time for you to have a brush with the law. I do accept that there’s prospect of rehabilitation for your case.
      
27. The court as the institution which the public place trust and confidence on must not shirk from its duties to easily succumb to mere pleas for discount but must only do it when there is total justification. For your case, I can gather that you were doing your practicum as an electrical student when you committed the offence, you beg the court to give you a second chance to further your education. I considered you plea as a genuine one that this court must not easily turn blind eye on. Hence, the sentence I will pass must not act as a barricade to your desires to further your electrical studies and achieve your future goals and ambitions.
    

Sentencing consideration:

28. I reduce 8 months to consider your early guilty plea and genuine remorse and further reduce 6 months to consider the fact that you are a first-time offender and your plea to return to continue your studies, obtain necessary qualification and achieve your future goals. The resulting sentence is therefore, 10 months’ imprisonment.
    

Sentencing Order:

1. I hereby sentence you; Mr. Cornelius Puisasa to 10 months’ imprisonment.
2. Time spent in custody or pre-detention period shall be deducted from this head sentence.
   
3. 14 days right of appeal applies.
   
4. Order accordingly.
   

THE COURT

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

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^[1] Cap 26
^[2] (i)Review of the Penal Code and the Criminal Procedure Code,&#a>, SECOND INTERIORT, SEXUALEXUAL OFFENCES, JUNE 2013; (ii) So Islaamily Heald Safe Safety Study, Ministry of Women,omen, Yout Youth and Children; and (iii) Solomon Is CEDAW EDAW Combined al, s and Third Perioderiodic Report 2012.
^[3] HCSI HCSI-CRC No. 402 of 208
^[4] HCSI-CRC No. 402 of 208
^{[5] Regina v Rukarae [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016)
[6] R v Ben Poloso WDMC-CRC No. 324 of 2018; R v Mclean Qoqonokana WDMC-CRC No. 193 of 2018 , R v Patrick Zonga, R v Francis Meso
[7] HSI-CRC 76 of 2005}