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R v Makapi [2012] TVHC 1; Criminal Case 05 of 2011 (12 January 2012)

IN THE HIGH COURT
AT FUNAFUTI

Criminal Jurisdiction

HC. Crim. case no: 5/11

Between:

R

V

Pita Makapi
Defendant

E Jogia for prosecution
M Agaifo for accused

Hearing: 11 January 2012
Sentence: 12 January 2012

Sentence

[1] This defendant has pleaded guilty to a single count of defilement of a girl under 13 years, contrary to section 134 of the Penal Code. The offence is charged as having occurred some time in November 2010 when the girl was 12 years old and the defendant was 22 years old.

[2] Although charged with only one offence, the facts admitted by the defendant are that the sexual intercourse with the girl started when he was 21 and the girl must have been 11 years old. The prosecution case is that the girl had had sexual intercourse with another man previously but, once she started the relationship with the defendant, sexual intercourse occurred with him with increasing frequency. The defendant spoke of having intercourse every other day as their relationship developed.

[3] The relationship stopped when the defendant was told by the girl's mother to stop seeing her but, subsequently in May 2011, it was discovered that the girl was pregnant. She has since been delivered of the child and the accused accepts that he is the father.

[4] When he was seen by the police, he made a written statement under caution unequivocably admitting the offence. The girl, on the other hand, had told the police that the first time she had sexual intercourse with the defendant had been in circumstances effectively amounting to rape but admitted that, thereafter, they had a consensual relationship. She also added that, at first, the defendant did not ejaculate inside her but that subsequently he stopped even that precaution. The defendant has always denied there was any forced sexual intercourse by him and I sentence on the basis of that denial.

[5] In his account to the police, he explained that he and the girl were in love and that, although he was fully aware of her age, he did not realise it was an offence to have sexual intercourse with her. I find it difficult to accept that a young man in his 20s neither realised there was such an offence nor, it would appear, thought it was something he might enquire about. However, his lack of knowledge of the law does not assist him in mitigation.

[6] Defilement under section 134 of the Penal Code is an extremely serious offence and carries a maximum penalty of life imprisonment. Such a condign penalty is clearly aimed at cases where an older man has deliberately corrupted a much younger and unwilling child.

[7] This case clearly falls well short of such circumstances. I accept entirely that the girl was a willing participant in what was to both of them an apparent loving relationship. However the law is intended to protect young girls even from themselves and places the responsibility for such offences firmly on the man. In this case the defendant was substantially older than the girl and was, prior to his relationship with her, already sexually experienced on his own admission. Once the first intercourse occurred, it was repeated, as I have said, increasingly frequently. It stopped only when the mother of the girl warned him off.

[8] It is suggested by the prosecution that an aggravating feature of this offence is that the defendant has shown no remorse. I accept that has not been expressly stated by the defendant but it is equally clear that he has never denied the offence, accepts that the child is his and has indicated that he is willing to take responsibility for its upbringing. Counsel for the defendant has emphasised that he is in fact remorseful and I accept that.

[9] She has also explained he is responsible for the support of his mother and his younger siblings. He has one previous conviction in 2007 for a traffic offence and an associated offence of dishonesty, for both of which he was fined. She tells the Court that he has expressed the hope that he can change his life and commit no further offences. I accept that it is highly unlikely he will commit such an offence again but the Court has the responsibility to demonstrate to the defendant and other people who may be similarly tempted to commit such an offence that the almost invariable sentence for an adult man will be an immediate sentence of imprisonment.

[10] As with all sexual offences and especially those involving young girls, the fact of a plea of guilty will always reduce the sentence. In the present case, the admission by the defendant was made as soon as the police saw him about this matter and he has maintained it by his plea of guilty. I give him the maximum credit for that. I also accept his suggestion that this arose because of his belief that he and the girl were in love and that the girl was, in consequence, a willing participant.

[11] The aggravating factors were the repeated offending, the age of the girl and the disparity between that and the age of the defendant and the fact that he eventually took no precautions to prevent this young girl falling pregnant.

[12] I consider the starting point for sentence in the circumstances of this case must be one of three years imprisonment. I consider the aggravating circumstances in this case are negated by the conduct of the girl and the belief by both of them that they were in love.

[13] However, as I have stated, the immediate and consequently maintained admission by the defendant leading to his plea of guilty allows me to reduce that sentence to two years imprisonment and I so order.

Dated 12th day of January 2012

Gordon Ward
CHIEF JUSTICE