R v AG [2019] SBMC 38; Criminal Case 185 of 2019 (8 October 2019)

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

Criminal Case No. 185 of 2019

REGINA

-V-

A G

Date of hearing: September, 13^th, 2019
Date of sentence: October 8^th, 2019

Mr. Andrew. Ega. Kelesi for the Crown
Mr. Clifton Meleu Ruele for the Accused

SENTENCE

1. For reason that the Accused person is a juvenile, I hereby invoke name suppression order, hence, for purposes of this sentence he shall be referred to as “A G”.
2. On 9^th of September 2019, the Accused person – “A G” entered an explicit guilty plea on a count of Sexual Intercourse with a child under 15 years of age contrary to section 139 (1) (b) of the Penal Code^[1]. I now proceed to unpack the reasoning for his sentence.
   
3. The facts reveal that on an unknown date in the month of May, 2019, sometime in the evening, the accused met with the victim at a wharf area near the seaside. The accused then pulled the victim using both hands to a nearby petrol shed. While at petrol shed, he grabbed the victim’s breast and pulled her head toward his head and kissed her mouth. A while later, he proceeded to pull the victim to a vacant house nearby and remained underneath the house.
   
4. He then took off her clothes followed by his clothes, laid her down on top of his shirt, spread apart her legs and laid on top of her, placed his erected penis into her vagina and had sexual intercourse with her. The victim did not feel comfortable when the accused penetrated her vagina. He later ejaculated.
   
5. I noted that the accused has applied force when he pulled the victim’s hands, grabbed her breast and pulled her head towards his face to kiss her, a clear sexual aggression on his part or hard-core approach so to speak. There is some form of premeditation on the accused part, that is, to take the victim out to an isolated area (the vacant house) before he unpacked his package and launch his erected penis into her vagina. She was uncomfortable but he insisted on until the point of no return, when he later ejaculated.
   
6. Although both are young individuals, there is an age disparity of 4 years. The accused has used his strength to overpower the weak and vulnerable 13 years old victim to satisfy his grim sexual desires. I agree with the Crown Prosecutor that “unlawful sexual intercourse with a girl under the age of 15 years is a deplorable crime that abuses the victim and put the community’s perception of respect towards female especially very young female at a wrong scale”^[2]. The increase of maximum punishment under our amendment to the penal code^[3]has demonstrated the need to deter offenders who come down this ugly path to prey on innocent children.
   
7. This is a concerning issue that our national leaders, community elders, parents and the overall, our societies need to ponder upon, because one can only conclude that such acts demonstrated by these young offenders depicts decaying of moral, cultural and spiritual norms and values in our rural and urban communities.
   
8. The accused must now set his lens to project the better side of life, a life that is worth living, that is, to live, learn and love others in our society without indulging in conducts that will entice him into the evil trap of sexual urges which would force him to do things he will suffer tough consequences from.
   
9. I am guided with sentiments expounded by His Lordship Palmer CJ in the case of Regina v Manisonia^[4], “in a non-contested case, with an early guilty plea after receiving instructions from a lawyer, the starting point is less than 5 years.”
   
10. I adopt the same approach taken in the case of R v Puisasa^[5], “sentencing range applied in past cases regarding the old provision per unlawful sexual intercourse offences 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.”
    
11. For the accused person, life is more than just sex, while I can agree that he now enters his puberty stages of life, he must learn to utilise his self-control and God given knowledge and wisdom to direct his path forward in life.
    
12. No one is perfect in this life we live in today, we all make mistakes but it takes a courageous person to accept his or her mistakes and accede to positive change in life. I validate his early guilty plea which I commend him for taking a first step in accepting his wrongs. His guilty plea has saves much of court’s resources and money to run a trial and to have the victim recount on the awful happening. He is a young offender, being 17 years of age at the date of offence and a first-offender. A huge life is waiting ahead for him to explore.
    
13. Having assessed the circumstance of offending, the apparent aggravating factors and the overarching view in case of Manisonia, I accordingly set the starting at 4 years imprisonment.
    
14. I reduce 12 months’ or 1 year to consider his early guilty plea which demonstrates his genuine remorse. Further deduction of 6 months’ is made to consider his past clean criminal history. Therefore, the resulting sentence is 2 years and 6 months imprisonment.
    
15. Standing back and applying the sentencing principle available for Juvenile Offenders under section 16 of the Juveniles Offenders Act, I agree that a personal and general deterrence sentence must be incorporated herein this sentence, however, this must also hinge on rehabilitation and restorative principle, so as to allow the offender to learn and turn away from such conduct and become a better person in the future instead of lengthy period which in turn will simply breed a future recruit again or habitual offender.
    
16. Having said this, I see it appropriate to invoke section 16 (k) of the Juveniles Offenders Act to coexist with section 44 of the Penal Code, that is to partly suspend 6 months from the head sentence of 2 years 6 months imprisonment for 1 year term, on condition that he must not commit any further offence during the term suspended. Breach of this condition will warrant a reinstatement of the term suspended.
    

Sentence Orders

17. I hereby sentence the Accused person – Mr “A G” to 2 years’ imprisonment.
18. The sentence to commence from date of first remand.
19. 14 days right of appeal applies.
20. Order accordingly.
    

THE COURT

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

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^[1] (cap. 26)
^[2] At Paragraph 16 of Counsel Kelesi’s sentencing submission
^[3] Penal Code (Amendment) (Sexual Offences) Act 2016
^[4] [2017] SBHC 107; HCSI-CRC 241 of 2017
^[5] SBMC 21; Criminal Case 190 of 2018 (3 May 2019)