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R v Noforangakeri [2021] SBHC 57; HCSI-CRC 359 of 2020 (15 July 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 359 of 2020

REGINA

V

JOHN NOFORANGAKERI

Date of Hearing: 6 July 2021
Date of Decision: 15 July 2021

Miss Patricia Tabepuda for the Crown
Mr. George Gray for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. John Noforangakeri is indicted with one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned, the defendant had pleaded guilty to the charge. He was accordingly convicted.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. In sentencing you, I am required to take into account the facts, the aggravating and the mitigating features in your case.

The facts

3. The agreed facts of your case are as follows:

You are from Murivai Village, Vanikoro Island, Temotu Province. You are the complainant’s cousin brother. The complainant is a 13 year old girl from Ulawa, Makira Province.
You and the complainant resided in the same area at Rove. You reside with your brother-in-law Eziekeli Maunganoa and the complainant lives with her mother who rented and resided in one of Eziekeli Maunganoa’s houses.
On the 14^th May 2020, the complainant had gone to turn off the water meter located close to a canteen house owned by Eziekeli Maunganoa. You used the canteen house for sleeping. You were in the canteen then. The complainant told you she was there to turn the water meter off and you pulled her into the canteen house.
You then removed your clothes and pushed the complainant on the bed and removed her clothes. You then lay ontop of the complainant and kissed her breast and pushed your figure into her vagina.
Thereafter, you widened the complainant’s legs and pushed your penis into her vagina and had sexual intercourse with her. The complainant felt pain and told you to stop but you continued to have sex with her.
The complainant then pushed you away and told you her mother will be looking for her. You told her to be quiet. You sat on the bed while the complainant wore her clothes and went back to her house. Her mother asked her where she had been and she told her mother what you did to her. The next day the matter was reported to the police.

Aggravating features

4. Having stated the facts, I will now discuss the aggravating features in your offending. In the case of Mulele v Director of Public Prosecution and Poini v Director of Public Prosecution [1986] SBCA 6, (1985-1986) SILR 45, the Court of Appeal had formulated a sentencing policy in sexual assault cases for future guidance. It was the view of the said court that save as each case will depend upon their particular circumstances, there are four factors that should be considered in sentencing offenders. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, there is a presence of disparity of age. You were 21 years old at the time of offending and the complainant was 13 years old. The age disparity between you was 8 years.
6. Connected to the above is the young age of the complainant. The complainant was below the consenting age and at that age, she is vulnerable to abuse by males like yourself. You took advantage of her age and vulnerability and you have deprived her of her innocence.
7. It was submitted by the crown that that there was a breach of trust in your offending. You are the complainant cousin. In our culture, a cousin is just like a brother to the complainant. As a cousin you are expected to show respect and to take care of the safety and the security of the complainant. You have breached the trust placed upon you by the family and your community.

Mitigating features

8. On your behalf it was submitted by Mr. Gray of counsel that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty. Your early guilty plea is a sign of genuine remorse on your part. It also means that you are willing to face the consequences of your action. You have also save the complainant further stress and trauma in coming to court to recite her past experiences. Your guilty plea also saves the courts time and resources in conducting a trial into the matter.
9. It is also submitted on your behalf that you are a first offender without any previous conviction. I commend you for living a life free from crime during the most part of your life. I urge you to learn from this mistake and try not to reoffend in future.
10. I have also heard from your lawyer that you were a student at the Solomon Islands National University at the time of offending. You were arrested and remanded in custody as a result. Because of your remand in custody, you were not able to continue your education. I have noted that what you did to the victim have weighed against your education and your future. I have also noted your desire to return to school at SINU after your incarceration. That is a positive attitude for your own betterment and I urge you to continue to pursue your desire.
11. You are a youthful offender and I can see an opportunity for your rehabilitation. Take this as a lesson for you and try to live a more respectable and dignified life that will benefit yourself, your family and the community at large.
12. I have noted that there is an age disparity of 8 years between you and the victim. I have also noted that you are two young people and you both a long life to live. Your youthfulness could have also contributed to this offending.
13. I have also noted that you have been remanded in custody since the 18^th May 2020 to this date. You have been in remand for a period of 1 year, 1 month and 23 days.

Case authorities

14. After having stated the facts, the aggravating and the mitigating features in your case, I am further assisted through previous cases that were dealt with by this court in sentencing like offenders. In the case of Regina v Bui [2021] SBHC 32, HCSI-CRC 562 of 2020, the defendant was 25 years old and the victim was 13 years. He was charged with two counts of having sexual intercourse with a child under 15. He was sentenced to 3 years imprisonment each on counts 1 and 2.
15. In the case of R v Fiuga [2019] SBHC 75, HCSI-CRC 91 of 2019, the defendant was charged with one count of having sexual intercourse with a child under 15 years. The defendant drowned the victim in the sea before committing the offence. He also tied the victim’s mouth with his shirt. The defendant pleaded guilty to the charge. He paid compensation of 4 red money and $4,000.00 to the victim’s family. He was sentenced to 9 years imprisonment and 2 years suspended for rehabilitation.

Conclusion

16. Having considered the above discussion, I have noted that you are a youthful offender. You have an opportunity to continue with your education. Being a youthful offender, you are a good candidate for rehabilitation. For the offence of offence of having sexual intercourse with a child under 15, I hereby sentenced you to 3 years imprisonment. I further direct that 2 years is suspended for 2 years on a good behaviour bond.

Orders of the court

1. The defendant is convicted on one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 3 years imprisonment.
3. I direct that 2 years is suspended for 2 years on a good behaviour bond.
4. I further direct that since the defendant had been remanded in custody for a period of 1 year, 1 month and 23 days, he has fully served his imprisonment term.
5. The defendant is to be released at the rising of the court.
6. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge