Regina v Badester [2015] SBHC 115; HCSI-CRC 349 of 2006 (1 July 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 349 of 2006

REGINA

-V-

Bonnie Badester

Hearing: 29th June 2015
Sentence: 1st July 2015

Florence Joel for the Crown;
Lazarus Kwaiga for the Defendant.

1. The defendant has been convicted of one count of rape following a guilty plea. Due credit must accordingly be given for this. As well I note he had actually indicated a guilty plea when his case was committed to the High Court from the Magistrates' Court as early as 18 August 2006. I will say more on this later when addressing the issue of delay in this case.
   
2. The offence of rape is regarded as a very serious offence and reflected in the maximum sentence of life imprisonment which can be imposed. It is serious for it entails a violation of the personality, dignity and privacy of the victim.
   
3. The starting point for rape by an adult set out in R. v. Ligiau and Dori[1] and recently endorsed by the Court of Appeal of Solomon Islands in Soni v. Reginam[2] in the absence of any aggravating or mitigating features in a contested case is five years.
   
4. I note there are a number of aggravating features in this case.
   
5. First, the victim is a very young, at time of commission of offence she was only 14 years and a primary school student at grade 6. The defendant in contrast was 24 years at the time of commission of offence and a married man. The relatively young age of the victim and that she was a student at time of commission of offence are aggravating features.
   
6. As well the disparity in age is an aggravating feature in this case. It is clear from the facts that you took advantage of this age difference to frighten off her boy-friend when you came upon them and to exert undue influence and control over her before raping her. The courts have a duty to protect young children and to reflect the seriousness and abhorrence with which the community holds against this type of offending commensurate with appropriate sentence.
   
7. You also used a weapon to frighten her and her boyfriend by showing it to them and also used threatening words to scare her boyfriend away and to exert undue control over her and to subdue her before raping her.
   
8. You did not hesitate to commit the offence in spite of the fact that her boyfriend was nearby and a direct witness to your intentions and actions and knowing full well that what you were doing was wrong, more so, that you were a married man with a family.
   
9. On the other hand I must also balance these with the mitigating factors that have been submitted on your behalf by your lawyer.
   
10. These include the following. First, it has been submitted on your behalf that although there are two previous convictions recorded against your name these are not directly related to this offence in that one relates to common assault and the other relates to making liquor. While I agree to a certain extent it would seem that there may be some connection in terms of the element of force and violence which was displayed in the commission of this offence. In any event credit is given for this fact.
    
11. Secondly, I note your Counsel's submissions that you are remorseful and sorry for what has happened. This is to a certain extent consistent with the fact that you did not seek to deny the offence from the outset. On the other hand I also bear in mind that the circumstances surrounding this offence were such that you had little option but to plead guilty for there were direct witnesses to this offence including one of them was your wife who so happened to be passing by that way at that time and witnessed the commotion accompanying the event.
    
12. This leads me to the third and perhaps strongest mitigating factor in your favour, that of delay in this case going to almost 9 years. I can pick out some obvious omissions or mistakes that were made when your case was committed to the High Court. First when you indicated a guilty plea at the Magistrates' Court, either you should have remained on remand in custody if you were in custody or you should have been bailed to appear at the High Court on a given date. This would have ensured that you appeared in the High Court for your bail to be continued pending the filing of the Information etc. from the Director of Public Prosecution's Office. As well, at the earliest appearance in the High Court you should have been arraigned and your plea taken. It is obvious the normal processes were not applied or omitted and hence the delay simply was perpetuated.
    
13. I can discount therefore about 3 years 1 month and 15 days of that period of delay partly when you were not available or could not be located when your case was mentioned on the 1st August 2008 and 15th August 2008 at the High Court. A bench warrant was issued on the 15th August 2008 but not executed until 1st October 2011. You then applied for bail on the 7th October 2011 and was granted bail on the 10th October 2011.
    
14. Again I point out that when you were arrested and remanded in custody you should have been arraigned and your plea taken. That was not done and that oversight further delayed your case for another 3½ years before it came before me on the 1st May 2015 and you were then arraigned and a guilty plea entered.
    
15. This excessive delay in your case must go in your favour as to the length of custodial sentence to be calculated and imposed. While a sentence of not less than five years would have been appropriate in the circumstances of this case taking into account the aggravating features, the circumstances of offending and your personal circumstances, the issue of excessive delay must ultimately affect the length of sentence to be imposed by the Court.
    
16. Taking everything into account, I am satisfied there is exceptional ground in this case to impose a much reduced sentence of 2½ years.
    

Orders of the Court:

1. Impose sentence of 2½ years for the rape charge to be served with immediate effect.
   
2. Any period spent in custody to be taken into account.
   

The Court.

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^[1] [1986] SBHC 15 SILR (3 September 1986) Ward CJ
^[2] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).