R v Bakolo [2024] SBHC 125; HCSI-CRC 144 of 2024 (30 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Bakolo
Citation:
Date of decision:	30 September 2024
Parties:	Rex v Brian Natei Bakolo
Date of hearing:	28 September 2024
Court file number(s):	144 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	1. Brian I convict you of rape. I sentenced you to 11 years custodial imprisonment term. I am not aware of any pre-trial custody entitlement. The 11 years will start to run today on the 30th September 2024. Order accordingly.
Representation:	Mr Beto and Ms Rehomora for the Crown Mr Houa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) (Act 2016 [cap 26] S 136 F (1) (a) and (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 144 of 2024

REX

V

BRIAN NATEI BAKOLO

Date of Hearing: 28 September 2024
Date of Verdict: 30 September 2024

Counsel: Mr Beto and Ms Rehomora for the Crown
Counsel: Mr Houa for the Defendant

Keniapisia; PJ

VERDICT AND SENTENCE

1. Brian Natei Bakolo is from Otambe village, Reef Islands, Temotu Province. Brian’s first cousin sister, Rose Nancy Laiko was sleeping inside a room at Brian’s house. At that time Rose’s parents were away. Rose was lodging in with her first cousin brother Brian at his house at Otambe village, Ngamasimo area.
2. At night on 26^th October 2022, during the early morning hours between 02:00 am to 04:00 am, Rose was fast asleep. Rose locked her door using a nail. Brian pulled the nail locking the door and went to the bed that Rose was sleeping on. Brian sucked Rose’s breast. Rose woke up and realised that Brian was inside her room sucking her breast. She wanted to shout but Brian shut her mouth with his hand.
3. Rose struggled but Brian overpowered her. Brian removed Rose’s short pant. Rose was not wearing any shirt because she was feeling hot. Brian widened Rose’s legs and pushed his penis into her vagina. Brian had sexual intercourse with Rose and ejaculated. Brian got dressed and left after he warned Rose not to tell anyone.
4. Rose felt bad and ashamed at what her first cousin brother Brian did to her. Rose promptly reported to Margaret Stemoa and Mary Sista on the day of the offending (26/10/2022).
5. At trial on 28^th September 2024, Brian entered an early guilty plea to the charge of rape. I convicted Brian premised on summary of agreed facts filed on the same day. Now I have to determine the appropriate punishment.
6. Rape is a serious offence as it carries a maximum penalty of life imprisonment – Section 136F (1) (a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. However, I have power to impose a lesser sentence term.

Starting point sentence

7. The undisputed start point sentence is 6 years according to Bade Court of Appeal 2023, since this is an uncontested rape trial, involving an adult victim. Rose was 20 years old in October 2022.

Aggravating factors

8. Then I determine the following serious aggravating factors: -
   1. Psychological harm and trauma - Court should always take judicial notice of the long-term impact and trauma on the victim despite lack of medical and professional evidence (Bonuga, 2014, Court of Appeal). Despite lack of observable physical harm, in all rape or sexual offence cases, the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per Bonuga (Liufirara, Court of Appeal, 2022).
   2. Position of trust breached - Brian and Rose are first cousins. It is Brian’s moral duty at custom to protect his sister Rose from sexual abuse. Every male relative, in custom ought to vigilantly guard and protect their sister’s sexual intactness and virginity from sexual impurity. Brian breached that duty when he turned on his sister to satisfy his sexual gratification.
   3. Home at night sleeping - Rose was inside the comfort of her brother’s home sleeping and entitled to security and safety from Brian when her parents were away. This is what a family safety net is all about in a communal society or villages. Instead Brian turned that safety net in his house into a crime scene for his sister.
   4. Pre-planning - This offending has a lot of pre-planning aspects that I can infer. Rose was living with her brother Brian in the absence of her parents (guardian). Brian allocated a room in his house for his sister Rose. Brian knew the lock to Rose’s room was easy to open because a nail is used as its lock. Brian waited until Rose was fast asleep after playing Ludo, late at night. He then entered Rose’s room, and raped her under cover of darkness in the comfort of her room. All these are not accidental but within the prior knowledge of Brian. Brian capitalised on all these with pre-planning and thinking to rape his sister.
   5. Physical harm - Brian did not use a weapon or apply physical harm to rape Rose. However, there was implied vaginal damage because Rose was not ready for sexual intercourse. She was sexually terrorised (Brian shut her mouth and overpowered her). The very act of rape is physical violation of a victim and physical harm is inherent in it (Liufirara, 2023, Court of Appeal).
   6. Weak and vulnerable - Girls are weak and vulnerable. They are exposed to the possibility of being attacked or harmed physically or emotionally. In this case Brian took advantage of his sister’s vulnerability when Rose lived with him in his house at the most vulnerable state when she was sleeping.
9. For all of the above six serious aggravating factors combined, I will increase the start point sentence by 12 more years (2 years for each aggravating factor). Increases due to serious aggravating factors should be in years and not merely in weeks or months (Bade, Court of Appeal 2023). I noted above some very serious aggravating factors. That will bring me to 18 years total head sentence term before mitigation.

Mitigating factors

10. Then I will make reductions for mitigating factors. The first is early guilty plea. Early guilty plea has multiple benefits and usually attracts a big reduction of 30 per cent. The multiple benefits are, it saves Court’s precious time, it saves the victim from trauma and harassment standing in the witness box to recount her sexual ordeals and for the offender it shows remorse for wrong done and courage to face the consequences for the wrong done. Thirty percent reduction will compute to 5.4 years rounded to 5 years.
11. The next mitigating factor is compensation and reconciliation. I will allow 1-year reduction for this. For cooperation with the Police and personal circumstances of the offender I will reduce 1 more year.
12. This is a case where the aggravating factors far outweighs the mitigating factors. The final head sentence I will impose is 11 years.

Conclusion and Orders

13. As I stand back and look at the custodial sentence term imposed, it is an appropriate punishment for an offence that carries a maximum penalty of life imprisonment. It is an appropriate sentence for a crime that is prevalent pre and post 2016 Amendment Act. Court must stand up with Parliament to curtail an increasing and prevalent sickening crime in our society. This crime is indeed sickening because it permeates the domestic circle where the offender and victim are family members and relatives. The values of family safety-net and social cohesion are deteriorating. We must all work together to restore family values. A hefty custodial term will hopefully achieve that for the offender and like-minded people out in the community.
14. Brian I convict you of rape. I sentenced you to 11 years custodial imprisonment term. I am not aware of any pre-trial custody entitlement. The 11 years will start to run today on the 30^th September 2024. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE