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R v Bade [2020] SBHC 1; HCSI-CRC 166 of 2019 (24 January 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.

REGINA

V

THOMAS INI BADE
Accused

Date of Hearing: 21 November 2019
Date of Decision: 24 January 2020

Mr. J H Anisi for the Prosecution
Mr. L Waroka for the Accused

SENTENCE

Bird PJ:

1. The Defendant was originally charged with one count of having sexual intercourse with a child under 15 years contrary to Section 139 (1) (c) of the Penal Code (as amended) Sexual Offence Act 2016.
2. Upon being arraigned on the information in court on 25^th July 2019, the Defendant had entered a guilty plea.
3. The Director of Public Prosecution had thereafter filed a nolle prosequi in respect of that information and had refiled substituted information pursuant to Section 140 (1) (a) (b) of the Penal Code (as amended) Sexual Offence Act 2016. Upon being arraigned on the substituted information, the Defendant had also entered a guilty plea.
4. The offence that you are charged with namely, having sexual intercourse with a child who is at least 15 years of age and under 18 years of age is very serious. Its seriousness is manifested in the prescribed maximum penalty of 15 years imprisonment.
5. The court had noted that you have entered a guilty plea to the offence of having sexual intercourse with a child who is at least 15 years of age and under 18 years of age.
6. The facts of your case are as follows: - That you are related to the victim as her uncle. At the time of offending the victim was 16 years of age. At around 8:00 pm on 30^th July 2018, the victim, her grandmother and yourself were at the victim’s house telling stories. After a while, the grandmother went to sleep leaving the victim and yourself alone. The victim then also left to sleep thereafter and told you to bring the lamp to the veranda of the house because the lamp was in the kitchen. The victim went to her room but did not close the door to her room as she thought she would close the door later. She then fell asleep. She was awoken when someone held her legs and shook them. The victim woke up and saw you and you told her not to shout. The victim asked you why you were in her room and you answered that you were there to sleep with her because your blankets were wet. At that point in time, the victim told you to go down and use the blankets because they could be used. You told her that the blankets were wet and you were there to sleep with her. You then laid down next to the victim. The victim got up from the bed and you also got up. You then took the victim’s clothes out and took out your clothes as well and you closed the door. You then laid the victim on the bed on her back and asked her not to make a noise. You then laid on top of the victim and pushed your penis in the victim’s vagina and had sexual intercourse with her.
7. After having stated the facts, I must say that I also had the opportunity to peruse the medical report dated 31^st July 2018 from Dr. Aoliana Galokepoto about the victim. The Doctor’s observations in the report are noted and had confirmed that there was no general body lesion/abrasion.
8. I have heard submissions from the prosecution as well as the defence and have noted them.
9. The aggravating factors in your case are the following:-
   1. Disparity of age
   • From the facts, the victim was 16 years of age. At the time of offending you were 32 years old. The age difference between yourself and the victim was about 16 years. At your age, you should be responsible for the actions and conduct of the victim. On the contrary, you have enticed the victim into a sexual relationship which is prohibited by law.
   2. Abuse of position of trust
   • You are related to the victim as an uncle. You reside in the same house as the victim. In Solomon Islands culture, an uncle is normally regarded as a father. In this instant and in the absence of the victim’s father, you should act and behave like a father to the victim. You have abused the trust that the victim’s father and mother as well as the community had on you.
10. The court had noted the mitigating factors in your favour which included the following namely:-
    1. Your early guilty plea;

This shows remorse on your part and that you are sorry for your actions. This has also saved time and cost in the prosecution of your case.

2. First time offender;

You have no previous criminal convictions.

3. You have co-operated with the police.
4. The court would also take into account the fact that this offending had occurred on 30^th July 2018 and that you have been in custody since 3^rd August 2018. You have been in pre-trial custody for about 1 year and 5 months.

11. After having discussed the aggravating and mitigating features in your case, I must remind you that the offence for which you are charged with is very serious. The court has also noted that this type of offending is very prevalent in our communities and more especially in the suburbs of our city. It is the duty of this court to safeguard and protect our young female population from such abusive, oppressive and controlling attitudes of our male population.
12. You are a mature person and an uncle to the victim. You are a person in a position of trust. You are an occupant of the family’s dwelling house and should have been looked up to, for security, guidance and protection. In a Solomon Islands household, you are looked upon as a father to the children of the household. You have abused that trust which is placed upon you.
13. Apart from what is said, I also wish to remind all fathers and mothers of young females of their obligation to look after and also to make sure that those children of their respective households are properly cared for and are protected from any possible abuse and harm from others. The mothers of every household in our communities must take that advice to heart. Mothers of every household are always dutiful but amidst all the chores that they have to perform as a mother, they must always remember that one of their primary responsibilities at home is the safety, security and welfare of their children and especially their young daughters.
14. Bearing in mind what had been said, I also wish to state that in all criminal related cases, everyone must feel the need to try and curb the rising number of criminal cases and especially sexual related cases which have been very prevalent in recent years.
15. On the same note, I must also say that the government of the day must also take an active role in trying to find avenues to curb this type of offending.
16. It is my view that the SIG must also look for ways to assist the courts to mitigate such behaviour. The rise of such crimes in our country is not only criminal in nature but is associated with the economic and social issues that we are facing. Unemployment leads to escalation of crimes. Urban drift leads to escalation of crimes.
17. What and how could the Executive deal with the problem. They cannot just turn a blind eye to the escalation of such crimes in the country with the attitude that it is merely the role of the judiciary to address.
18. The Legislature had done their part in imposing rigid punishments to such offending. The Judiciary had exercised their powers under the current legislation to punish the offenders. In what ways could the Executive arm assist to address the escalation of crimes in the country?
19. What mechanisms have been put in place to assist the victims and survivors of violence? On the same note what mechanisms have been put in place to assist the offenders to rehabilitate themselves upon being released from incarceration?
20. Crime is not only an issue for the judiciary to deal with. The escalation of criminal offences in the country should be a national issue and all three arms of the Government must work together to try and curb the cause of the escalation of crimes.
21. If I may, I wish to bring to the attention of the Executive, their responsibilities, duties and obligations under the international treaties/conventions that had been ratified by the Government. Two of such conventions that worth mentioning in this case are:- (1) International Convention on Economic, Social and Cultural Rights commonly referred to as ICESCR and (2) Convention on the Rights of the Child also known as CRC.
22. It is universally known that once a state had ratified a treaty, that state is required under international law to respect, protect and fulfil their obligations in accordance with the law.
23. The circumstances surrounding the commission of this offence reflect on the Executive’s failure to take heed of their international obligations under the above stated conventions.
24. By virtue of Article 11 of the ICESCR, the State is obligated to provide adequate standard of living including food, clothing and housing.
25. The victim’s family lives at Lunga area. The parents are not engaged in formal employment. They do not have proper housing for the family. The parents sell betel-nut and smoke for the family’s survival.
26. In such situations, the Government under the CRC is obligated under Article 18 to provide support services to parents. Article 26 further obligated the Government either through guardians or directly to help children who are poor or in need. Under Article 27, children have a right to a standard of living that is good enough to meet their physical and mental needs. The Government should help families and guardians who cannot afford to provide this, particularly with regard to food, clothing and housing.
27. In cases of this nature, the child victims are often forgotten about and or neglected. Article 39 of the CRC further provides for the rights for child victims. That article provides that children who have been neglected, abused or exploited should receive special help to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring the health, self-respect and dignity of the child. This is the obligation that is placed upon the state to help child victims.
28. In view of the above discussion, the Government is urged to take an active role to put in place future plans and mechanisms that would assist the offenders as well as the victims of such crimes to rehabilitate and become good citizens of this country.

Orders of the court

1. Convict the Defendant of the offence of having sexual intercourse with a child who is at least 15 years of age but under 18 years of age.

2. Impose sentence of 6 years imprisonment.
3. Direct that the period spent in remand in custody be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge