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R v Arebonto [2021] SBHC 117; HCSI-CRC 515 of 2018 (6 October 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 515 of 2018

REGINA

V
MARTIN AREBONTO

Gizo Circuit

Date of Hearing: 2 October 2021
Date of Decision: 2 October
Date of Published: 6 October 2021

Mr. Andrew Meioko for the Crown
Mr. Andrew Bosa for the Defendant

Sentence

Bird PJ:

1. By information filed on the 20^th December 2018, the defendant Mr. Martin Arebonto was indicted for the offence of defilement of a girl under 13 years contrary to section 142 (1) of the Penal Code (cap 26). Upon being arraigned on the information, the defendants had pleaded guilty to the charge. He was thereby convicted as charged.
2. The offence for which you are charged is a felony and carries a maximum sentence of life imprisonment. The life sentence would demonstrate to you the gravity and severity of this offending. Notwithstanding, the maximum sentence is normally reserved for the most serious of cases. The courts pursuant to section 24 (2) of the Penal Code (cap 26) is also empowered to impose a shorter term of imprisonment depending on the facts and circumstances of each offending.
3. The facts of your case as were presented to court in your case are the following:

You are from Harapa Village, Shortland Islands. You were 25 years old at the material time.

The complainant is also from the same village. She was 12 years old at the time of offending. The date of offending was the 26^th March 2013.

Sometime between 2012 to 2013, you and the complainant had got into a boy-girl friend relationship. The complainant told you that she was more than 14 years old.

At about 7 to 8 pm on the 26^th March 2013, the complainant was sent to get fire when she met you. You were then drunk and you asked to have sex with the complainant. Since you were in a boy-girl friend relationship she agreed to have sex with you. You went to the complainant’s house together and had sexual intercourse with each other.

Whilst you were having sex with each other, the complainant’s father had returned from diving bech-de-mer. He flashed the torch on both of you and saw you having sex. You then got up and escaped from their house. The matter was reported to the police whereby you were arrested and charged.

4. After having stated the facts of your case, I am now required to discuss and take into account the aggravating and mitigating features in your offending. The court is also required to take note of case authorities that would be of assistance in sentencing of offenders like yourself. In the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145, the Court of Appeal had set our four distinguishing features that must be considered in the sentencing of accused persons on sexual assault cases. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. It was submitted by the prosecution that there was presence of age disparity in your case. At the material time, you were 25 years old and the complainant was 12 years old. The age difference between you was one of 13 years. You were an adult and you have allowed yourself to be carried away by your sexual emotions. That had led me to the next aggravating feature in that you were drunk when you committed the offence. Had you been sober, you could have exercised restraint then.
6. I am also urged to take note that the offending occurred at night time. I can appreciate and understand the crown’s position in relation to that submission. I am also minded to note that it was the complainant who allowed you to go with her into her family home and had sex with her. That must have happened because you were in a boy-girl friend relationship.
7. On your behalf, it was submitted by Mr. Bosa of counsel that you have pleaded guilty to the offending. I give you credit for the guilty plea. Your guilty plea not only shows that you are remorseful but that you have owned up to the offending and you are willing to face the consequences of your action. Your guilty plea saves the court’s time and resources in conducting a trial into this case. It also saves the complainant more stress and trauma in coming to court to give evidence in a contested trial.
8. I have noted that you are a first offender without any previous conviction. I am also minded to note that you have complied with your bail conditions and have continued to attend court if and when required.
9. I have noted your personal circumstances. You are now 33 years old. You are married with four children. You have attained a Graduate Diploma in Secondary Teaching at SINU in 2010. Because of this case, you were terminated from employment by the Education Authority. That in my view is also a form of punishment from the relevant authority.
10. A reconciliation event was carried out in relation to this offending. You have reconciled with the complainant’s family. The complainant had got married and had settled down with her new family. You have also got married and had a family of your own.
11. I am also urged to take note of the lengthy delay in the finalisation of this case. The offending occurred on the 26^th March 2013. The matter was only committed to this court on the 21^st November 2018 more than 3 years after the commission of the offence. The information was filed by the office of the DPP on the 20^th December 2018. The matter was not finalised until this date the 2^nd October 2021, after a further delay of more than 2 years. I have noted that most of the delay is based on the administration of the court system.
12. In the case of Runikera v DPP Criminal Appeal Case No.14 of 1987, Ward stated as following as to the effect of delay and I quote, “Delay generally affects sentence in three ways. It increases the anxiety of the accused man who has it hanging over him for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely on the hands on the offender. The second relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it only gives the offender the chance, denied to many accused, of showing that he really does intend to reform and stop offending”.
13. In your case, there has been a delay of about 9 years before your case was finalised by the court. You had this case hanging over your head for that length of time. Your guilty plea then becomes a strong mitigating factor due to the fact that it would be more difficult for the prosecution to prove their case because of lapse of time. I have also noted that since the date of the offending, you have faced disciplinary action by the Education Authority. You have got married and had a family of your own. I have also noted that you have not reoffended since this case was on foot.
14. I also wish to state that the conduct of the complainant had contributed to the commission of the offence. She told you that she was more than 14 years old. She was a willing participant and allowed you to enter her home and whereby you had sex with each other.
15. After having stated the above I will now turn to consider previous cases that the courts have dealt with in the like offence that you are charged with. In the case of Zale v Regina CRC No.495 of 2004, the defendant was charged with 3 counts of defilement of a girl under 13 years. He was sentenced to 9 months imprisonment on each count by the Magistrates Court. On appeal to the High Court, the sentence was reduced to 3 months imprisonment. They were in a boy-girl friend relationship.
16. In the case of R v Pakau [2016] SBHC 135, the defendant pleaded guilty to one count of defilement pursuant to s. 142 (1) of the Penal Code (cap 26). The victim was 12 years old. There was absence of boy-girl friend relationship. The defendant was sentenced to 2 ½ years imprisonment.
17. In the case of R v Beo [2021] SBHC 29, the defendant pleaded guilty to 2 counts of defilement under section 142 (1) of the Penal Code (cap 26). They were in a boy-girl friend relationship. The victim was 12 years old and the defendant was 20 years old. The defendant was sentenced to 2 years imprisonment on each count and suspended the 2 years sentence on count 2 for 2 years.
18. Having discussed the facts and surrounding circumstances of your case and having taken note of the above cases, I put your starting point at 4 years imprisonment. For the delay in the finalisation of your case, I reduce that sentence by 2 ½ years. I hereby impose a final sentence of 1 ½ years imprisonment wholly suspended for 12 months.

Orders of the court

1. The defendant is convicted of one count of defilement contrary to section 142 (1) of the Penal Code (cap 26).
2. The defendant is hereby sentenced to 1 ½ years imprisonment.
3. I direct that the imprisonment term is hereby suspended for 12 months.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge