R v Balekwai [2020] SBHC 84; HCSI-CRC 211 of 2020 (15 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Balekwai
Citation:
Date of decision:	15 August 2020
Parties:	Regina v Baddley Balekwai
Date of hearing:
Court file number(s):	211 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1 Impose sentence of 8 years. 2 The period spent in pre-trial custody to be deducted.
Representation:	Andrew Ega Kelesi with John Wesley Zoze (assisting) for the Crown Benham Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S.139 (1) (a), S. 136 D (2) (b) Penal Code, S.141 (1)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15 R v Pana [2013] SBHC 88

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 211 of 2020

REGINA

V

BADDLEY BALEKWAI

JUDGEMNT: 13 August 2020
SENTENCE: 15 August 2020

Andrew Ega Kelesi with John Wesley Zoze (assisting) for the Crown
Benham Ifuto’o for the Defendant

Palmer CJ.

1. You have pleaded guilty to a charge of having sexual intercourse with a child under the age of 15 years contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The girl in this case was only 4 years old at the time of the commission of the offence.
2. This offence is part of a new regime of amendments to sexual offences which Parliament had enacted to reflect the concerns and seriousness with which this type of offences had seen an alarming increase in the country. Under the old legislation this would have been charged as an “indecent assault” under section 141 (1) of the Penal Code, which describes such offences as a felony with a maximum sentence of five years. With the recent amendments, the definition of “sexual intercourse” under section 136D (2) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016, has been extended to include “...the penetration, to any extent, of the genitalia or anus of a person by an object manipulated by another person,....”. In this case, the offence of sexual intercourse was committed with the defendant using his fingers on the genitalia of the victim. This new offence carries a maximum sentence of life imprisonment where the child is under 13 years and the offender is in a position of trust to the victim.
3. The maximum sentence of life imprisonment reflects the seriousness and concern with which Parliament holds in respect of this type of offences and the need to protect young girls from the predatory activities of men like the defendant in this case, who show little respect and concern for young children.
4. The starting point in this case without any aggravating or mitigating features, in a non-contested case should be eight years. Where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
5. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following additional aggravating features in this case. First, is the age of the victim at 4 years old, which places her at a very tender and vulnerable age at the time of commission of the offence. Her extremely young age is a very serious aggravating feature^[1]. She would not be in a position to understand and appreciate what the defendant was doing to her. We do not know what lasting harm psychologically his actions would have caused to her. Young children need to be protected and the courts have a duty to send out a strong clear message to men that this type of offence cannot be condoned in our society. I echo the words expressed by Pallaras J in R. v. Warren Rina Pana^[2]:
   • “A crime of this dimension is difficult to comprehend. To assail a completely helpless infant in such an offensive way is a complete affront to the dignity and humanity of the child. The community is rightly repelled by such sickening, self-indulgent conduct particularly where there is a total disregard to the safety, the health and the well-being of such a small child. This is an invasion of such dimension that,... one can only hope that someday she will recover sufficiently to lead a life without fear and trepidation. It will however be a very long road for her and her family.”
6. The second aggravating feature is the disparity in age. The defendant was a mature person, at 53 or so years as opposed to the child at 4 years old, an age difference of 49 years between the two of them. This places him in a position of responsibility and trust over the victim. He failed to take care of her as the older and more mature person.
7. The third aggravating feature is the position of trust and responsibility that he held as the grandfather, a very close relative of the victim, which he abused and took advantage of. You were in a fatherly role and figure to her and she rightly expected and trusted you to take good care of her but instead you betrayed that trust and confidence in you as a grandfather and allowed your feelings and desires to take control of you. You took advantage of your position and sexually abused her. You have caused needless distress and trauma upon the child and whatever emotional and psychological damage may have been caused will take many long years to heal.
8. The fourth aggravating feature relates to the location of the offence, the sanctity of your home. Your home as a grandparent should be a place of pride for you and your children and is supposed to be a place of safety and security for them but in this case, you have breached that trust and confidence and turned it into a crime scene.
9. The fifth aggravating feature is the physical harm and injury caused, a form of invasive violence of the extreme kind on a young and helpless child who could not defend and protect herself from your behaviour. The Doctor’s report stated: “During examination of genitalia under sedation 12/2/20, resolved bruises noted on the labia minor, hymen partially ruptured more obvious on the 9 o’clock position. No pus or discharge noted, no active bleeding.” This eventually led to the discovery of the offence when she complained of irritation and pain in her vagina and would not want water even to touch her vagina. Your actions caused injury to her vagina apart from the untold suffering and pain that she will have to endure for a long time to overcome this traumatic invasion of her body and personality at such a very tender age.
10. These aggravating features collectively merit the increase of an additional three years raising the sentence to 11 years.
11. On the other hand I note your mitigating factors and balance these against the aggravating features present in your case. Credit is given for your guilty plea, which apart from the utility of saving court time and expense, saves the complainant the distress of having to relive the trauma from the witness box. In addition I note that it would have been quite difficult in the circumstances of a child of tender years, to be required to go through the drama of a trial, to give evidence under oath and be subjected to cross examination, a difficult and demanding task by any standard for the victim. You have by this guilty plea shown mercy and understanding and I give credit for that.
12. Your guilty plea is demonstrative too of remorse on your part and a realization and acceptance, of the error of your ways.
13. I note you have no previous convictions and that this is your first time to appear in court.
14. The courts have duty to protect the helpless, the weak and those who are vulnerable, by ensuring that an immediate custodial sentence is imposed in this type of offending. It also has a duty to re-build the walls of sexual purity and piety that have broken down in our nation and send out a clear message that those who commit this type of offence must expect to be punished and a lengthy prison sentence imposed. Each case however has to be determined on its own merits and an appropriate sentence imposed that balances those elements of retribution, deterrence, prevention and rehabilitation. The issue of sentencing in your case is in determining the appropriate sentence to impose.
15. Taking all your mitigating factors into account, I deduct 2 years for your guilty plea, and 1 year for the other mitigating factors, leaving a total sentence of 8 years to be served. I am also satisfied that the period spent in custody is to be deducted from the sentence imposed.
16. I take into account the fact that you have already spent 5 months in pre-trial custody and direct that it be deducted. You have a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Impose sentence of 8 years.
2. The period spent in pre-trial custody to be deducted.

The Court.

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^[1] R. v. Ligiau and Dori [1986] SBHC 15
^[2] HCSI-CRC no. 408 of 2013 (16 July 2013), at paragraph 28.