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Regina v Tumulima [2013] SBHC 112; Criminal Case 397 of 2012 (26 July 2013)

IN THE HIGH COURT OF
SOLOMON ISLANDS

Criminal Case No. 397 of 2012

REGINA

-V-

ELLISON KAONI TUMULIMA

Before: PALLARAS J

Hearing Dates: 5th & 12th of July 2013
Sentence Delivered: 26th July 2013

Crown: Ms Francis Joel
Defence: Mr. Michael Holara

SENTENCE

1. Ellison Kaoni Tumulima ("the accused") was charged on Information with one count of attempted rape, contrary to section 137 of the Penal Code and one count of criminal trespass contrary to section 189(1)(a) of the Penal Code. On 7th June 2013, the Crown indicated their intention to file an amended Information alleging one count of indecent assault contrary to section 141(1) of the Penal Code and one count of criminal trespass contrary to section 189(1)(a) of the Penal Code. To this amended Information now filed by the Crown the accused has pleaded guilty to both counts.
   
2. The parties have signed and produced a Memorandum of Agreed Facts in which the following facts are agreed –
   
   • The accused was in his early twenties at the time of the offences
   • The Complainant was 11 years of age at the time of the offences and lived with her parents at Mamana Water Area, Honiara
   • The accused lived in the same area
   • On 2nd April, 2012 between 5:30 a.m. and 6:30 a.m., the accused entered the Complainant's house without permission while the she was asleep inside the house
   • The accused removed the Complainant's lower clothing and pushed his finger into the sleeping girl's vagina. The Complainant awoke and began to cry at which time the accused left the house.
     
3. It is said on his behalf that when he entered the house he did so with an intention to steal and not to commit a sexual offence.
   
4. While this offending may not be said to be amongst the worst of its type, there are three significant features of aggravation in this case. First, there is the significant age disparity between the accused and the Complainant. Secondly, there is the young age of the Complainant. Thirdly, there is the fact that the accused broke into where the Complainant was living and then committed the offence of indecent assault.
   
5. In a medical report dated 3rd October 2011, from Dr. Paul Orotaloa, Consultant Psychiatrist at the National Referral Hospital, it is said that the accused regards this as "just a minor accident" and regards his incarceration to date as unjust treatment. This attitude was reflected in a remark he made while departing the Court that he had served enough time in prison and that he should be released. It is also noted that the description of his offending which he provided to Dr. Orotaloa, was quite different to the description to which he ultimately agreed in the Memorandum of Agreed Facts.
   
6. In my judgement, this is an extremely worrying attitude to be held by the accused and demonstrates a total lack of appreciation of the seriousness of what he has done. He does not seem to understand that the abuse of a young child for his own personal sexual gratification is a particularly serious and selfish crime. The community rightly expects the Courts to impose sentences which reflect both their abhorrence of this crime and the need to protect children from such predators in their midst. His attitude highlights the need in this case for specific deterrence to play its role in the sentencing process.
   
7. In the accused's favour it can be said that he is still a young man, that he has pleaded guilty as soon as the Information was amended by the Crown and that he has no previous convictions. I take all of these factors into account and, in particular, his pleas of guilty. Pleas of guilty are to be considered in the light of their utilitarian value and the extent to which they are reflective of remorse. For the reasons outlined above, while some credit is to be given for him in terms of utility and remorse, I am unable to accept that he deserves full credit due to genuine remorse. His lack of appreciation and understanding as to the seriousness of his offending, in all of its consequences, detracts from the full benefit he would otherwise receive.
   
8. The maximum penalty for indecent assault is 5 years imprisonment and the maximum penalty for criminal trespass into a dwelling is 1 year imprisonment. Taking into account the circumstances of the offences and matters of aggravation, I judge an appropriate sentence for the count of indecent assault to be 3 ½ years imprisonment and for the count of criminal trespass, 6 months imprisonment. The sentences are to be served concurrently.
   
9. Considering the factors personal to the accused, matters of mitigation and his guilty pleas, the sentence of 3½ years is to be reduced by 1 year to a sentence of 2 ½ years. Furthermore, time already spent in custody by the accused is to be taken into account.
   

ORDERS:

1. The accused is convicted of one count of indecent assault contrary to section 141(1) of the Penal Code and one count of criminal trespass contrary to section 189(1)(a) of the Penal Code.

2. In respect of the count of indecent assault, the accused is sentenced to 3 ½ years imprisonment.

3. In respect of the count of criminal trespass, the accused is sentenced to 6 months imprisonment.

4. These sentences are to be served concurrently making a total sentence of 3 ½ years imprisonment.

5. The sentence of 3 ½ years is to be further reduced by 1 year after taking into account mitigating factors reducing the sentence to 2 ½ years.

6. Time spent in custody is to be taken into account. The amount of time is agreed between the parties to be 1 year and 10 days.

.....................................................
THE COURT