R v Wabeasi [2023] SBHC 98; HCSI-CRC 94 of 2023 (21 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Wabeasi
Citation:
Date of decision:	21 September 2023
Parties:	Rex v Amos Wabeasi
Date of hearing:	21 September 2023
Court file number(s):	94 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. The defendant is convicted of one count of indecent act on a child below 15 years contrary to section 139 (2) (a) of Penal Code, as (Amendment) (Sexual Offence) Act 2016. 2. The defendant is sentenced to 3 years 1 month imprisonment. 3. Right of Appeal.
Representation:	Mrs P Waisanau for the Crown Mr A Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (amendment) (Sexual Offences) Act 2016, S 139 (1) (b), S 139 (2) (a)
Cases cited:	Regina v Liva [2017] SBCA 20, R v Bonuga, Regina v Belo [2012] SBHC 88, R v Kio [2021] SBHC 158, R v Hardie [2022] SBHC 70, R v Tata [2021] SBHC 52,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 94 of 2023

REX

V

AMOS WABEASI (PRESENT IN COURT)

Date of Hearing: 21 September 2023
Date of Sentence: 21 September 2023

Mrs P. Waisanau for the Crown
Mr A Bosa for the Defendant

SENTENCE

R. Faukona (DCJ): The Defendant, Mr. Amos Wabeasi was formally and originally charged for the offence of having sexual intercourse with a child under 15 years, contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual offence) Act 2016.

2. By consent of Counsels, that information was Nollied on 20^th September 2023, and substituted with an information of Indecent assault of a child under the age of 15, contrary to section 139(2) (a) of the Penal code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
3. Upon arraignment on 20^th September 2023, the defendant entered a plea of guilty and was convicted of the offence accordingly.

Agreed Facts.

4. The agreed facts are that the defendant is from Togori village, Central Bauro, Makira Ulawa Province. He was 36 years of age at the time of offending.
5. The complainant/victim’s name is Ms. Leonic Selestina Katorauna. She comes from a highlands settlement village of Togori area, Central Bauro, Makira/Ulawa Province. She was 5 years at the time of offending.
6. The Complainant is related to the defendant as her uncle. The defendant is the second cousin of the complainant’s mother.
7. The incident said to have occurred on 23^rd September 2022 at the highlands bush garden, at Togori area.
8. In the midmorning of Friday 23^rd September 2022 around 10 am, the defendant told the complainant to follow him to his garden to harvest peanut. While they were at the garden the defendant told the complainant to lay down and removed her clothes. The defendant then rubbed his penis to the complainant’s vagina until he ejaculated. The complainant felt pain. The defendant told the complainant not to report what had happened.
9. In fact the complainant reported the matter to her mother Mrs. Linda Sua.
10. The complainant’s mother then asked compensation from the defendant. The defendant then paid compensation of $1,000.00 to the complainant’s mother.
11. The matter was reported to Kirakira Police and the defendant was eventually arrested and charged.
12. I noted there is submissions on the negative and psychological effect that will impact complainant after gone through the ordeal of sexual violence.
13. In the case of R V Liva^[1], the Court made reference to the case of R v Bonuga, which the Court stated that;
    • “There may have been no evidence that the victim suffered severed or lasting psychological harm. However, we consider judicial notice needs to be taken into account of the devastating effect on the victim of sexual offending, especially young victim. The psychological trauma cannot be ignored”.
14. I take judicial notice of psychological effect that the victim may have gone through, though, there is no evidence available. However, the medical report reveals that the child complained of pain and prolgestion of entry to the vaginal walls and she was treated with Panadol.
15. Though the treatment speaks of as evidence, and may indicate less severity, I think there is same emotional effect persistently reminding the victim of the ordeal thus tantamount to some psychological effect of certain degree, not necessary serious but important to take judicial notice of.
16. I also consider compensation of $1,000.00 paid to the mother of the complainant. That being so, I also consider the pronouncement in the case of R v Belo^[2], paragraph 12;
    • “I accept customary payment of compensation have a place in the culture of our community. They do not annul the offence or the penalty prescribed under the Penal Code, but they do toward mitigation”.
17. What the Court had expressed is that any payment of cultural compensation cannot buy out someone’s criminal offending. It merely act as mitigation feature in considering the right sentence to deliver. And that any payment should not be seen as excessive.
18. In this case my consideration as to that cultural norm of payment of compensation falls within that principle of law addressed in Belo’s case above.
19. In respect to time spent in custody, I refer to the case of R V Kio^[3], of which the Court took into account of the time spent in custody be deducted from the overall sentence.
20. The practice now becomes norm in deducting time spent in custody. However, I consider that time should not be excessive due to delay n prosecuting the case in Court. Should that be, the principle of delay will switch in favor of the defendant.

Mitigating features.

21. On behalf of the defendant, he is a first offender. Not being encountered with the law previously or have any previous convictions.
22. He pleads guilty to the charge at first instance avoiding the victim of 5 years to be called into the witness box to reveal an ordeal that would severely stressed her entire being.
23. The defendant expresses remorse for the action he had done, and promise not to reoffend.
24. The defendant is an unemployed man with no wife. In other words he is a single man.

Analysis.

25. The social environmental set up and the remoteness of the village setting often encountered with such an anti-social behavior.
26. The Complainant and the defendant lived together in a village in the highlands of Central Bauro District. The defendant who was a single person of 36 years lived with other close relatives in their community.
27. Because he chooses to be a bachelor perhaps could not afford to avoid his sexual immorality desires. The fact that he could not grasp elsewhere, he picked within his own family. Unfortunately for him the victim is far below the age of consent.
28. Because the drive was so powerful inwardly, he had to trick the child of 5 years to indecently assault her. The prey he chose is peanuts, a universal root crop the children keen to chew on. He had to lead her into the bush garden, a quiet secret environment. From that sport he abused the child who was his own niece, indecently by rubbing his penis to the vagina of the child until he ejaculated.
29. Quite fortunate for the defendant, he did not attempt to penetrate the vagina of the child or he would face a more serious offence.
30. I accepted he pleads guilty at first instance. He is a first time offender and he felt remorse for the offence he had committed. I have taken into account that he had paid custom compensation of $1,000.00 but that won’t buy him out from criminal liability or annul the punishment.
31. On the overall scale, I have considered the aggravating and mitigating features and weight on the equilibrium.
32. Therefore what should be the right sentence that fits the factual circumstances surrounding the committal of the offence?

Starting Point.

33. The Counsels rely on almost the same case precedents with varying views. I have noted with balance approach in defining the most applicable precedent.
34. There are 2 most relevant case precedents with similar background facts. In the case of R V Hardie^[4], with similar charge and wider age disparity. The only difference is that the victim of 4 years suffered severe injury. The starting point the Court took into account was 3½ years. That case is more serious than this one, according to the Crown Counsel.
35. The next relevant case is R V Tata^[5] with similar offence. Age disparity is 36 years, the Defendant is 44 years whilst the victim is 8 years.
36. Compensation of $2,000.00 was paid. The defendant was eventually sentenced for 2 years imprisonment after deducting 1 year 11 months and 21 days in custody. The defendant was sentence for 2 years at the rising of the Court.
37. Perhaps R V Tata^[6] is the most relevant case to this case, from background facts and circumstances.
38. In the case of R. V Hardie^[7], my personal view is that the starting point of 3½ years is quite small. A 4 years old suffered at the consequence of an adult, a grandfather of 65 years. The child suffered injuries. I think the starting point should be higher than 3½ years.
39. It would appear the Judge in R v Tata^[8] formed a starting point of 3 years and hence deducted the time spent in custody.
40. The appropriate starting point in this case is 4 years taking into account the young age of the victim. Second, is the gross breach of trust of an uncle who could not hold his evil sexual desire which led him to trick the child into the bush garden where he sexually assaulted her.
41. He in fact betrayed is niece who she entrusted for care and security.
42. Having considered the aggravating and mitigating features and having set 4 years as being starting point considering the maximum punishment is 7 years for this offence.
43. For age disparity and vulnerable age of 5 years of victim and sexual abuse of a niece 6 months is added to the starting point. That is 4 and half (4½) years.
44. For breach of trust, six months is further added. That is five (5) years.
45. For entering plea of guilty at first instance – 6 months deducted. That is 5 years minus 6 months is 4½ years.
46. For payment of compensation, good previous character and expression of remorse, further 6 months is deducted. That is 4½ years minus 6 months is 4 years left.
47. For time spent in custody of 11 months deducted. Total sentence the defendant will serve is 3 years and 1 month.

Orders:

1. The defendant is convicted of one count of indecent act on a child below 15 years contrary to section 139 (2) (a) of Penal Code, as (Amendment) (Sexual Offence) Act 2016.
2. The defendant is sentenced to 3 years 1 month imprisonment.
3. Right of Appeal.

The Court.
Rex Faukona.
Deputy Chief Justice.

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^[1] Criminal Appeal Case No. 17 of 2017. (13 October 2017).
^[2] [2009] HCSI, CRI No.9 of 2009. (10 August 2012).
^[3] [2021] SBHC 158; HCSI-CRC 535 of 2020 (15^th October 2021).
^[4] [2022] SBHC 70; HCSI-CRC 501 of 2020 (23 August 2022).
^[5] Criminal Case NO. 157 of 2019.
^[6] Ibid (5)
^[7] Ibid (4)
^[8] Ibid (5).