R v Bako [2022] SBHC 30; HCSI-CRC 720 of 2021 (22 April 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Bako
Citation:
Date of decision:	22 April 2022
Parties:	Regina v Ishmael Bako
Date of hearing:
Court file number(s):	720 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	(i) Count 1 - 5 years imprisonment (ii) Count 2 - 5 years imprisonment (iii) Sentences to be served concurrently and the Accused to serve only 5 years imprisonment, (iv) Time spent in the custody to be deducted from the 5 years to be served; (v) No further orders
Representation:	Pellie L for the Crown Kwalai D for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b),
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 720 of 2021

REGINA

V

ISHMAEL BAKO

Date of Decision: 22 April 2022

Pellie L the Crown
Kwalai D for the Defence

SENTENCE

Maina PJ;

1. You, Mr. Ismael Bako pleaded guilty on two information of sexual intercourse with a child under 15 years and accordingly convicted on the charges under section 139 (1) (b) of the Penal Code (Amendment) Sexual Offences Act 2016.

Agreed Facts of the case

2. The Defendant was 18 years old and complainant was 14-year-old girl at the time of the commission of the offence.
3. Complainant was a Grade 5 student at Bolitei Primary School at the time of offending and the Defendant was not a student and were in the boy/girl relationship.
4. Both incidents happened on unknown date between 1^st and 16^th September 2021 during the nights when the Defendant went to the girl’s dormitory at Bolitei Primary School and called the complainant. On both occasions, the complainant came out from the dormitory and she followed the defendant to a house belongs to Esther Terihia.
5. At the first incident when they arrival at the house the Defendant and complainant started kissing and later the complainant pulled down or removed her clothes. The Defendant laid on top of the girl and insert his penis into her vagina and they had sexual intercourse. After they had sexual intercourse, the Defendant took back the complainant to the dormitory.
6. With the second incident when they arrived at the house, the Defendant pulled down the complainant’s clothes from her.
7. He laid her down and then laid on top of her and insert his penis into her vagina and they had sexual intercourse. As with the first incident, after they had sexual intercourse the Defendant took back the complainant to the dormitory.

Maximum Penalty

8. The law in section 139 (1) (b) of the Penal Code (Amendment) Sexual Offences Act 2016 provide for the maximum penalty of the Sexual intercourse or indecent act – child under 15:
   • “139: (1) A person commits an offence if the person has sexual intercourse with a child who is under 15 years of age.
   • Maximum penalty:
   • ........................................
   • (b) if the child is between 13 and 15 years of age – 15 years imprisonment”.

Mitigating factors

9. The Counsel for Defendant submitted that the following factors stand in his favour and the court to take into account in the sentence:
   • Guilty plea,
   • Shown remorse,
   • First-time offender,
   • Cooperated well with the police,
   • Youthfulness of the Parties,
   • Consensual of both occasions;
   • Background of the offending
10. I accept the counsel’s submissions on his mitigating factors, except for the Consensual of both occasions and background of the offending. Simply, it is an offence to have sexual intercourse with a child who is under 15 years of age. It is so even if there is or was consent by the child.

It is like a fruit from a tree which you are accessible to harvest at any time you want to eat the fruit. If the fruit is not ready to be harvested, just leave it until it is ready or ripe otherwise may be bitter or sour and an unpleasant to you.

Aggravating factors

11. The aggravating factors as noted from the both counsel’s submission are:
    • Age disparity,
    • The offence was repeated. A probability that if it was no discovered quick it would have continued.
12. I accept the submissions on the aggravating factors and will weigh them out against the mitigating factors.

Sentence

13. This offence is serious as reflected from the maximum penalty of the offence with 15 years’ imprisonment. Let alone the maximum penalty for the worst circumstance.
14. The rate of sexual offence is alarming or becoming common in our communities and in particular with the abusing of very minors or small girls.
15. With this case, it is my view the starting point in the sentence should be six years. Taking into account the mitigating factors and aggravating features, the accused is accordingly sentence to 5 years imprisonment for each counts.

Orders of the Court

Accused Ismael Bako is sentenced to:

• (i) Count 1 - 5 years imprisonment
• (ii) Count 2 - 5 years imprisonment
• (iii) Sentences to be served concurrently and the Accused to serve only 5 years imprisonment,
• (iv) Time spent in the custody to be deducted from the 5 years to be served;
• (v) No further orders

THE COURT
Hon Justice Leonard R Maina
Puisne Judge