R v Ba'ai [2023] SBCA 9; SICOA-CRAC 7 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Ba’ai
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Maina, J)
Court File Number(s):	7 of 2022
Parties:	Rex v Wilfred Ba’ai
Hearing date(s):	19 April 2023
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Wilson JA
Representation:	Kelesi A for Appellant Holara M for Respondent
Catchwords:
Words and phrases:	Sexual Offendings 139 (1) Penal Code (Amendment) (Sexual Offences) Act 2016. Sentencing Guidelines
Legislation cited:	Penal Code (Amendment) (Sexual Offences) [cap 26] S 139 (1), S 139 (1) (b)
Cases cited:	R v Roges [2020] SBHC 64, R v Alepio [2021] SBHC 27, R v Mihaka [2021] SBHC 30, R v Bui [2021] SBHC 32, R v Ligiau and Dori [1986] SBHC 15
ExTempore/Reserved:	Reversed
Allowed/Dismissed:	Allowed
Pages:	1-8

JUDGMENT OF THE COURT

1. On 4 December 2020 an information was filed against the respondent alleging sexual intercourse with a child under 15, contrary to s 139(1) of the Penal Code (Cap. 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

Particulars of offence

That Wilfred Baa’i of Darawarau Village, North Malaita, Malaita Province at Malu’u Area, North Malaita, Malaita Province on 2 April 2020 did have sexual intercourse with a girl namely Joyline Taua, a child under the age of 15 years to wit 12 years old.

2. The matter was first called on 4 March before Bird J, when a not guilty plea was entered. There appear to have been further callovers on 25 May 2021, 30 August 2021, and finally 8 November 2021.
3. The information on the High Court file has a handwritten amendment and it is impossible to completely decipher all the added handwritten words. In the High Court file there is a hand-written note made by the Judge on 8 November 2021. It noted that the appellant sought an amendment to the information to include the particulars which are again difficult to decipher, but certainly close with the words “inserting his fingers to her clitoris”. Mr Holara accepted those words were added and that he agreed to that amendment. The amendment was granted. The agreed amended Information was put, and the respondent pleaded guilty. The Information plus those added words we can decipher clearly inform the respondent of the charge against him.
4. The Court noted at page 2 of the handwritten note that he found the accused guilty upon his own plea and convicted him on the charge in the information.

Sentencing

5. The agreed facts upon which the respondent was sentenced on 12 November 2021 note both the defendant and complainant lived in the same area at North Malaita and the complainant was 12 years old. Around noon on 2 April 2020, she left her residence and proceeded to the area where the defendant lived. She went inside, as the door was open, and the defendant was inside the house at the time. She received money from the defendant. There is no explanation for this, and no conclusions can be drawn. The defendant became sexually aroused and told the complainant to go to his bed inside the house. He then told her to remove her clothes, which she did, and told her to lie down. When she did, he proceeded “to touch her pubic hairs and use his finger to touch her clitoris inside her vagina”. (We note the strange understanding of anatomy involved in this as described in the agreed facts.)
6. The complainant then proceeded out of the house and reported the matter to her uncle, who reported it to police. The defendant gave compensation to the victim’s family as custom settlement to the sum of $400 and a nine feet of shell money worth $1300.
7. The Crown, in its sentencing submission, pointed to the fact that the maximum penalty for the offence of sexual intercourse with a child under 15 was life imprisonment. The Crown noted the aggravating feature of the disparity of age, but accepted in mitigation that there was no previous conviction, a plea of guilty and co-operation with the police. The man, after arrest, was quickly bailed and remained bailed up until this appeal, and still remains on bail.
8. In their sentencing submission the Crown referred to a number of authorities not all of which were for offences under s 139(1) of the Penal Code. R v Roges is a case where the accused used his finger to penetrate the victim’s vagina and he was sentenced to three years.^[1] One year was suspended to be served after completing his two years’ imprisonment. R v Alepio was a case with a six-year-old complainant with a 16-year-old accused.^[2] The accused had full intercourse, penetrating with his penis inside the vagina. He was sentenced to two years’ imprisonment with the sentence suspended for two years. In R v Mihaka the accused was sentenced on three counts of sexual intercourse with a girl under 15 and was sentenced to three years for each count.^[3] Counts 2 and 3 were suspended on a good behaviour bond for two years after completion of the sentence. It involved penetration by finger and tongue. In R v Bui, on a guilty plea on two counts of sexual intercourse with a girl under 15 there was a sentence of three years for each count.^[4] Count 2 was suspended on a good behaviour bond for two years to be served after completion of the first sentence. The complainant was aged 13 and the defendant was 25. These were both cases of penile penetration. We note the cases cited were all sentences imposed by the same judge who sentenced the appellant. In Bui he commented at length on the increase in this type of offending. (Some of the suspended sentences imposed do not seem to accord with s: 44 Penal Code but that is not an issue raised in this appeal).
9. For the respondent, Mr Holara submitted to the Judge that he was a first-time offender; he pleaded guilty; he has eyesight problems due to illness; and is an old man with a sick wife. He pointed to the fact that the offending in this case was at the lower end of s 139(1) (b) offending.
10. The Judge noted the maximum penalty, the aggravating features and the mitigating features. He spent some time discussing the prevalence of sexual offending in Solomon Islands communities on the basis of submissions made by both the Crown and defence. He agreed with counsel and expressed a number of concerns concerning this and simply concluded:

Upon considering the facts ... the appropriate sentence for you is two years’ imprisonment.

He then suspended that sentence for 2 years on good behaviour.

Submissions

11. Mr Kelesi seemed intent in relying on the starting point in R v Ligiau and Dori of five years.^[5] He said there should be a significant uplift for the aggravating feature of disparity of age, and for mitigation he allowed that the age of the complainant and his health condition warranted some allowance, as did the guilty plea. The submission made no allowance for the fact that the 5-year starting point was in a rape case and this case was significantly less serious.
12. Effectively, Mr Holara submitted that the decision reached by the Judge was an appropriate one.

Discussion

13. Given the definition of sexual intercourse set out in the amended Act, there will be a wide range of circumstances that establish the necessary elements of the offence:

136D Meaning of “sexual intercourse”

(1) In this section:

“genitalia” includes surgically constructed or altered genitalia;

“object” includes an animal.

(2) In this Part, “sexual intercourse” means any of the following:

(a) the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a lawful medical purpose or is otherwise authorised by law;

(b) the penetration, to any extent, of the genitalia or anus of a person by an object manipulated by another person, except if that penetration is carried out for a lawful medical purpose or is otherwise authorised by law;

(c) the introduction of any part of the penis of a person into the mouth of another person;

(d) fellatio;

(e) cunnilingus;

(f) the continuation of sexual intercourse as defined in paragraph (a), (b), (c), (d) or (e).

14. We find some of the sentences imposed as set out above, particularly those that included full penile penetration, remarkably light and out of line with contemporary sentencing for sexual offences. As well in almost every instance the judge suspended part or all of the sentence. That is hardly conducive to deterrence. The other problem with the sentencing is that judge does not specify any starting point. Given those sentences were all imposed by the same judge there appears to be a pattern of imposing much more lenient sentences than the guideline judgments of this Court would require.
15. We do accept that the offending in this case was at the lower end of the scale, and less serious than those cited above, but it was by a much older person (who we understand was a chief) on a 12-year-old. Mr Kelesi rightly stressed that the focus of the amendments to the Act was on the protection of women and particularly children from sexual offending that we know from the Solomon Islands Law Reform Commission Second Interim Report of June 2013 is prevalent in the Solomon Islands. That report referred to alarming levels of sexual violence, and recommended the creation of new sets of offences and increases in penalties for others. It also noted that, in comparison to the Solomon Islands nearest neighbours in the Pacific, sentencing here for sexual offending appears to be low.
16. It is hard to provide a definitive starting point in a case dealing with the lower end of the offending, as here. The seriousness of the offending is recognised by the legislature in providing for a maximum sentence of life imprisonment. For this lower-end offending, we consider an appropriate starting point to be three years’ imprisonment where the case is not contested. For the significant aggravating feature of the disparity of age, it is appropriate to increase that starting point to four years’ imprisonment.
17. In mitigation, there is his age and his eye problem. However, as this Court has said previously, the personal circumstances of an offender play little part in mitigation in offending of this sort. (e.g., R v Ligiau & Dori). The respondent is also entitled to an allowance for his guilty plea but, given the number of times he appeared before the Court, it cannot possibly be said he was contrite and pleaded guilty at the earliest possible stage. For those mitigating factors, we think a one-year allowance would be appropriate, taking the sentence back to one of three years’ imprisonment.
18. We should also add that in offending of this sort that carries a maximum sentence of life imprisonment, it is completely inappropriate, except in the most exceptional of circumstances, to suspend the sentence, assuming the sentence is within the range that allows for suspension. It is unlikely sentences for offences against s: 139 (1) will be 2 years or less, a sentence that could trigger the imposition of a suspended sentence pursuant to requirements of s: 44 of the Penal Code.
19. Accordingly, the appeal is allowed. The sentence of two years’ imprisonment suspended is quashed. In substitution thereof, we impose a sentence of three years’ imprisonment which is to commence forthwith.

Goldsbrough P
Hansen JA
Wilson JA

---

^[1] R v Roges [2020] SBHC 64; HCSI-CRC 303 of 2019 (29 June 2020).
^[2] R v Alepio [2021] SBHC 27; HCSI-CRC 691 of 2019 (25 February 2021).
^[3] R v Mihaka [2021] SBHC 30; HCSI-CRC 537 of 2019 (25 February 2021).
^[4]R v Bui [2021] SBHC 32; HCSI-CRC 562 of 2020 (25 February 2021).
^[5]R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986).