R v Bonagi [2021] SBHC 62; HCSI-CRC 296 of 2021 (20 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Bonagi
Citation:
Date of decision:	20 August 2021
Parties:	Regina v Mathew Bonagi
Date of hearing:	9 August 2021
Court file number(s):	296 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted on one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is hereby sentenced to 3 ½ years imprisonment. 3. The time spent in pre-trail custody is to be deducted from the total sentence. 4. Right of appeal.
Representation:	Mrs. Elma V Rizzu for the Crown Mr. Ben Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136 F (1) (a) and (b) [cap 26], Penal Code S 24 (2) [cap 26]
Cases cited:	R v Ligiau and Dori [198] SBHC15, Dalo v Reginam [ 1987] SBHC 15, Soni v Reginam [2013] SBCA 6, R v Billam,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 296 of 2021

REGINA

V

MATHEW BONAGI

Date of Hearing: 9 August 2021
Date of Decision: 20 August 2021

Mrs. Elma v Rizzu for the Crown
Mr. Ben Alasia for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 29^th April 2021, the defendant, Mr. Matthew Bonagi is indicted with one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the information, the defendant had entered a guilty plea. He was thereby convicted accordingly.
2. The offence of rape is very serious and carries a maximum sentence of life imprisonment. It is that serious because it intrudes into the privacy of the victim and without the victim’s consent. Section 24 (2) of the Penal Code (cap 26) gives the court discretion to award a shorter term instead of the maximum penalty.
3. The facts of your case as were presented to this court are as follows:

You are from Ngamumblo Village, Reef Islands, Temotu Province. The complainant is also from the same village. At the time of offending, you were 26 years old and the complainant was 16 years old.
On an unknown date between 30^th September 2018 to 1^st November 2018, the complainant accompanied you and one Elizabeth Langwoplo to harvest melon at Hon. Silas Bakolo’s garden. You then shared the melon at the complainant’s house. That night you went to the beach and ate melon then Elizabeth and the complainant returned to their houses and slept.
Whilst the complainant was sleeping, she felt someone lying beside her and she thought it was her sister. She then got up and went to urinate at the beach. On her way back, she saw you standing outside her house. You asked to have sexual intercourse with her but she refused. You were angry and you grabbed her left hand and pulled her towards you. In an angry voice, you told her to lie on the ground so that you could have sexual intercourse with her. You then laid ontop of the complainant and took off your clothes. You directed the complainant to take out her clothes and she did. You then pushed your erected penis into her vagina and had sex with her.
The complainant did not accept what you did to her. After that, you and the complainant went back to your respective houses and slept. The matter was later reported to the police and you were arrested and charged.

4. After having stated the facts in your case, and in order for me to impose an appropriate sentence against you, I am also required to take into account the aggravating and mitigating features in your case.
5. The first aggravating feature in your case is the offending occurred at night time. You waited for the perfect opportunity to carry out your intention. You used the cover of night to commit the offending against the complainant and right outside of her house.
6. I have noted that you were 26 years old at the time of offending and the complainant was 16 years old. There is a age disparity of 10 years between you. In her age, she was vulnerable to abuse from men like yourself.
7. On your behalf, it was submitted by counsel that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your guilty plea not only shows that you are remorseful but that you have owned up to your offending and you are willing to face the consequences of your action. It saves courts time and resources in conducting a trial into the matter and it also save the complainant further stress and trauma in having to come to court and reciting her past experience.
8. I have noted that you are a first offender. You have no previous convictions. Notwithstanding, I am also required to take note that in sexual offences cases, matters of mitigation personal to the offender must have less effect on the offender. That was the view of this court in the cases of R v Ligiau and Dori [198] SBHC15, (1985-1986) SILR 214.
9. Your lawyer have submitted that you have attended rehabilitation course at the Rove Correctional Centre and that in my view is a plus for you.
10. I have heard that you have been remanded in custody since October 2018 to this date. You have therefore been in pre-trial custody for about two years and nine months.
11. I have also noted that the offending occurred between 30^th September to 1^st November 2018. You were committed to stand trial before this court on the 4^th January 2019. The information against you was not filed by the office of the DPP until the 29^th April 2021, some 15 months after your committal. There is no explanation from the prosecution why it had taken them more than one year before filing of the information against you. I can only say that a delay of 15 months before filing of information is an unreasonable delay and it flies into the face of the Constitution. See the comments of Kabui J in the case of R v Chris Mae, Criminal Case No. 289 of 2005.
12. In the case of Dalo v R [1987] SBHC 15, Ward CJ stated inter alia “such extreme delay is totally unreasonable and unjust. Quite apart from the uncertainty it causes, the penalty imposed so much later is often made all the harsher by the delay”. In that case, there was a reduction of a third of the total sentence imposed.
13. In the case of Soni v Reginam [2013] SBCA 6, Criminal Appeal Case No. 27, 28, 35 of 2012, the Court of Appeal had adopted the principle outlined in the case of R v Billam whereby the said court had outlined three starting points being one of 5 years, 8 years and 15 years. In the case of Ligiau & Dori, it was held that a starting point of five years should be considered in a contested case where rape is committed by an adult without any aggravating or mitigating features.
14. Having noted the facts in your case together with the aggravating and mitigating features as well as the case authorities referred to in this sentence, I put your starting point at 5 years imprisonment. For the delay in the prosecution of this case, I hereby reduce your sentence by 1 ½ years. I also direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant is convicted on one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 3 ½ years imprisonment.
3. The time spent in pre-trail custody is to be deducted from the total sentence.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge