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R v Tumael [2021] SBHC 122; HCSI-CRC 505 of 2020 (28 May 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 505 of 2020

REGINA

V

TOME TUMAEL

Date of Hearing: 14 May 2021
Date of Sentence: 28 May 2021

Ms. G Waletofea for the Crown
Mr. S Weago for the Defendant

Palmer CJ.

1. You have pleaded guilty and convicted on a charge of sexual intercourse with a child under 18 years contrary to section 140 (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.
2. This is a new provision introduced under the Penal Code (Amendment) (Sexual Offences) Act 2016, in June 2016, to criminalize sexual intercourse with a girl below the age of 18 years. The victim in this case was 17 years of age at the time of commission.
3. The maximum sentence in this case where the offender is in a position of trust to the victim is 15 years.
4. The brief facts in this case did not indicate that the incident was pre-arranged and that sexual intercourse was consensual. In his submissions in mitigation before this court however, Mr. Weago sought to submit that sexual intercourse was consensual. While that has not been disputed, consent is not a defence in this offence. I keep that in mind however in relation to the sentence to be considered.
5. The creation of this offence and maximum sentence of imprisonment reflects the level of seriousness and concern with which Parliament views this type of offence in the community and the need to protect young girls from other men and themselves. Young girls often fall victim to the uncontrolled urges of men to satisfy themselves at the expense of the victim, their dignity, families and future. The consequences can be long lasting as has been alluded to by the victim in her Victim Impact Statement, through ongoing shame, fear and insecurity.
6. Men need to know and be reminded that having sex with an underage girl, even if there is consent, is against the law, frowned against by the community and those standards need to be maintained and respected.
7. The defendant is the adopted uncle of the victim and so placed in a position of trust or responsibility. I note submissions that the victim is not a regular in his home and so not being familiar with her, but that does not diminish his position of trust and responsibility towards the victim. The fact he is also married accentuates that position of trust and accountability to the victim, himself, his family and the community.
8. I bear in mind the age disparity of 8 years, the defendant being 25 years old at the time of the commission of the offence.
9. I note on the other hand that no threats, weapon, physical violence, trickery or pre-planning was present in this case. There was also no injuries apart from the feelings of shame, sadness and fear as a result of what had occurred.
10. I give credit for his guilty plea, that he is a first offender and is sorry for what he has done. His guilty plea is not only consistent with remorse but has also saved court time and expense and the victim from having to give testimony of what happened between her and the defendant.
11. I am satisfied as well that his prospects of rehabilitation are good, that he is a young person, has a family to return to and determined to change and make a difference for good in his community.
12. On the other hand I bear in mind the element of deterrence in this type of case becoming all so common in our communities and the importance of sending out a clear message to the community that those who commit this type of offence will expect to be sent to prison, the length of time to be determined on the merits of each case.
13. I am satisfied the defendant has come to accept the error of his ways, learnt his lesson and being reformed while in prison.
14. Taking all the aggravating factors in this case into account, I am satisfied the starting point should be 5 years. Balancing that with the mitigating factors, in particular his guilty plea, I am satisfied 3 years be deducted leaving a total of 2 years to be served. I am satisfied as well that the period (11 months 25 days) spent in pre-trial custody is to be deducted from the sentence.

Orders of the Court:

1. Enter conviction for the offence of sexual intercourse with a child under 18 years contrary to section 140 (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Impose sentence of 2 years.
3. The period spent in custody is to be deducted from the sentence.

The Court.