R v Baegeni [2022] SBHC 127; HCSI-CRC 372 of 2021 (13 October 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Baegeni
Citation:
Date of decision:	13 October 2022
Parties:	Rex v Clement Baegeni
Date of hearing:	12 October 2022
Court file number(s):	372 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is convicted and sentenced to a term of imprisonment for 3 years and 6 months. 2. The authorities are directed to take into account the time already spent on remand in custody. 3. The name and any identification of the victim are permanently suppressed.
Representation:	Mr J Zoze for the Crown Mr G Male for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (a)
Cases cited:	Ligiau and Dori [1986] SBHC 15, Pana v Regina [2014] SBCA 19,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 372 of 2021

REX

V

CLEMENT BAEGENI

Date of Hearing: 12 October 2021
Date of Decision: 13 October 2022

Mr J Zoze for the Crown
Mr G Male for the Defendant

Lawry; PJ

Sentence

Introduction

1. Clement Baegeni you have pleaded guilty to one charge of having sexual intercourse with a child under the age of 15 contrary to section 139(1)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for this charge is 15 years’ imprisonment. You now appear for sentence.

Facts

2. The victim was aged 14. On 29 December there was a youth concert in Busuleasi village. You and the complainant are both from Ngariwane village. You called her and told her that her mother had asked you to tell the complainant to follow you back to Ngariwane village. You told her that if she refused her mother would smack her. She did as she was told and was understandably afraid. When you reached your house you forced her to have sex with you. You pulled her causing injury to her right arm. You pushed your penis into her vagina, having sexual intercourse until you ejaculated. When the victim told you she would tell her parents you told her you would kill her if she did.

Personal circumstances

3. You were aged 22 at the time of your offending.
4. You are married with two children and you and your wife are expecting a third child.
5. You attended Baunani School finishing at form 3.
6. You are employed as a security guard at the Bemobile tower at your village. You support your extended family with the income earned.

Aggravating facts

7. You used violence causing a dislocation of the victim’s arm. You also threatened to kill the victim if she reported the matter.
8. The Crown has referred to the difference in your ages however I regard the fact that you are an adult in your twenties and she was still a child as sufficiently taken into account in the charge to which you have pleaded.
9. The Crown submits that your offending was premeditated in that there was planning involved and a plan was devised to trick the victim to go with you.

Mitigating facts

10. You have pleaded guilty at the first available opportunity in this Court.
11. You have no previous convictions.
12. You have demonstrated remorse with your plea and through your counsel you have expressed your regret. Most importantly in terms of your culture you have reconciled with the victim with payment of compensation which was $500.00 in cash, 20 red money and a pig valued at $2,500.00.
13. Counsel says you co-operated with the Police and will not re-offend. He says you are youthful, however you are not a teenager you are a father with children and with the responsibilities that family life brings.

Deterrence

14. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim and to the community. I need to promote in you a sense of responsibility for and an acknowledgement of that harm. I need to provide for the interests of your victim. I need to denounce your conduct and deter you and others from offending of this nature. I need to protect the community from you and others who may be minded to act as you have. I need to provide for your reintegration into the community and for your rehabilitation.

Starting Point

15. Counsel have correctly referred to the High Court case in R v Ligiau and Dori [1986] SBHC 15 as the appropriate tariff case. In Ligiau and Dori the Court said:
    • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.”
16. The Court of Appeal approved the guidance provided by Ligiau and Dori in Pana v Regina [2014] SBCA 19 where the Court said at paragraph [17]:
    • “We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.”
17. The charge referred to as defilement was essentially the same as the charge you are facing. Your case is quite different from those cases where both the offender and the complainant are teenagers engaged in a mutually agreed activity. When I consider your age, the steps you took to get the victim to go with you and the force used which dislocated her arm I consider the starting point can be no less than seven years’ imprisonment, bearing in mind the maximum penalty is 15 years’ imprisonment.

Guilty plea

18. Your plea has saved the complainant the stress of reliving the offending and of giving evidence of such a personal nature. In Pana the Court of Appeal said at paragraph [29]:
    • “In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty.”

The credit is given because in addition to acknowledging your offending it is a reflection of remorse. In the circumstances of your case I propose giving further credit to reflect the reconciliation and compensation provided that has allowed the victim to get on with her life.

19. In Ligiau and Dori the Court said of personal circumstances:
    • “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”

Conclusion

20. From a starting point of 7 years’ imprisonment I allow a full two years and four months’ reduction to reflect your early guilty plea and the remorse it has demonstrated. For the reconciliation and compensation paid, I recognise that in your culture in Malaita it is very important that there is such a public acknowledgement of the harm you have done. I allow a further 12 months’ reduction. For the remaining matters in mitigation I allow a further two months’ reduction. That leaves a final sentence of 3 years and 6 months’ imprisonment. Any time you have spent in custody is to be taken into account.

Orders of the Court

1. The Defendant is convicted and sentenced to a term of imprisonment for 3 years and 6 months.
2. The authorities are directed to take into account the time already spent on remand in custody.
3. The name and any identification of the victim are permanently suppressed.

By the Court
Justice Howard Lawry PJ
Puisne Judge