R v Tekau [2019] SBMC 24; Criminal Case 52 of 2015 (10 May 2019)

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

Criminal Case No. 52 of 2015

REGINA

-V-

TEAROFA TEKAU

Date of Hearing: May 7^th, 2019
Date of Sentence: May 10^th, 2019

Ms. Olivia. Ratu for the Crown
Mr. Clifton. M. Ruele for the Accused

SENTENCE

1. The accused was charged and arraigned on an offence of Indecent Assault contrary to section 141 (1) of the Penal Code.^[1]He pleaded not guilty to which a trial ensued on 18^th to 24^th April 2019. The Court found the accused guilty on 3^rd of May 2019. Thereafter, conviction was entered. This is the sentence for his case.
   
2. This is an indecent assault case against a child of 13 years old by a stepfather who is in a position of trust and there’s a substantive apparent age disparity. The age of the accused on the date of offending is unknown, however, I accept that he’s an adult person. The facts in essence, reveals a fleeting touch on the stepdaughter’s breast. The stepdaughter (victim) was fully clothed when this offence occurred.
   
3. The prescribed punishment for the offence of Indecent Assault^[2] is 5 years imprisonment. It is settled law in this jurisdiction that the maximum punishment are normally set to use or comes into play on cases of most awful type of indecent assault offending. Further, cases are to be reflected according to their own unique circumstance and facts surrounding the offending.
   
4. The offence occurred in 2015, some 4 years ago. Since 2015, the accused has never commit any subsequent offence of similar nature or even any single offence at all. The lapse of time has indicated rehabilitation on his part before his sentence^[3]. He reconciled with the victim or stepdaughter in 2016 and they are now living together again. In fact, the reconciliation was conducted by Bishop Sikera of Rawaki United Church. Bishop Sikera wrote a letter to support the same which I accept to use for his benefit.
   
5. I do acknowledge that a sentence this court will pass must bear little weight on personal deterrence given the trajectory of the accused life since the offence in 2015, as echoed in the Solomon Islands Court of Appeal (SICOA) case of Vavini.^[4] Nonetheless, this is a serious offence against a stepdaughter or a person within the family, hence, any sentence must uphold general deterrence to be a beacon to the general public that the Court will never tolerate such offending and that those who wish to embark such a path must expect to face the vibrant force of the law in no lenient way.
   
6. The four (4) years delay was unjustified and or no explanation for the delay. The delay in prosecuting the charge after it was laid was unreasonable. In 2016, a warrant of arrest was issued against the accused but was later cancelled after he appeared. I noted that on past occasions the court and crown also add to the delay in failing to proactively and constructively progress this case by acceding to continuous adjournments which ultimately resulted in the delay.
   
7. In case of R v Buga^[5] The accused was charged with 1 count of indecent assault contrary to section 141 (1) of the Penal Code (Cap26). Facts revealed that the victim was drunk and slept near a SIEA pillar box at the gate to the SI Copra premises, Honiara. Having observe this, the accused took advantage of the situation by indecently assaulted the victim by touching her breast and vagina. Defendant pleaded guilty and was convicted and sentenced to pay a fine of $1,500 in default 3 months’ imprisonment.
   
8. In R v Rukarae[6] the accused was nced toed to 3 years concurrent after full trial for two counts of Indecent Assault. The victim was 10 years old at the timoffen the Accused was was her 55 years old grandfather and they lived in the same house. On then 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.
   
9. Having perused the above two cited cases and the circumstance of offending, it is obvious to state that their facts are more disturbing compared to the case at hand. There was a fleeting touch on the breast when the victim was fully clothed. The increase of my starting point will due to the victim being a child, breach of trust and age disparity. Hence, I accordingly set a specific starting point for such a case involving trust with fleeting touch on the breast while victim fully clothed on the lower end of the tariff or range. I see it appropriate the starting point figure must be 18 months imprisonment.
   
10. I reduce six (6) months to consider the fact that the accused has been a law abiding citizen for the past years, the rehabilitation on his part after the commission of the offence in 2015 and his personal circumstance that he has reconciled and cohabit again with the victim’s mother and family again. Due consideration given to the evidence by the victim expressing nothing but sorrow for his stepfather (accused) and stated that the offence was nothing more than a fleeting touch.
    
11. Accordingly, the resulting sentence is therefore, 12 months’ imprisonment. I noted that this is a contested matter and due to the vast delay of four (4) years without justification, I can only see it proper that in the interest of justice and public interest, I must invoke section 44 of the Penal Code^[7]and partly suspend 8 months for 1 year on condition that the accused must not commit any offence during the term suspended. Breach of this condition will warrant reinstatement of term suspended if found guilty on subsequent offence.
    
12. The accused will serve the remainder of 4 months imprisonment.
    
13. Time spent in custody will be deducted from this head sentence.
    
14. Right of appeal applies within 14 days.
    
15. Order accordingly.
    

THE COURT

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

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^[1] Cap 26
^[2] Section 141 (1) of the Penal Code (cap 26)
^[3] Vavini v R; Criminal Appeal Case 45 of 2018 (On Appeal from High Court Criminal Case No. 305 of 2018)
^[4] Ibid
^[5] R v Buga [2012] SBHC 131; HCSI CRC 99 of 2009 (5 December 2012)
^[6] [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016)
^[7] Cap 26