R v Paeni [2024] SBHC 135; HCSI-CRC 190 of 2024 (24 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Paeni
Citation:
Date of decision:	24 August 2024
Parties:	Rex v Francis Paeni
Date of hearing:	21 August 2024
Court file number(s):	190 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	(i) Convict the accused on the charges of rape and indecent act. (ii) Sentence the accused to 4 years imprisonment for Count 1. (iii) Sentenced the accused to 1-year imprisonment for Count 2. (iv) Count 1 and Count 2 sentences to run consecutive (5 years sentence term).
Representation:	Tonowane for the Crown Rusi for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 136 (f) (1) (a) and (b), S 139 (2) (b), S 136D (2) (a), S 136 F (1) (a) (b)
Cases cited:	Regina v Tasia [2022], R v Ramaia [2021] SBHC 96, Alu v Reginam [2016} SBCA 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 190 of 2024

REX

V

FRANCIS PAENI

Date of Hearing: 21 August 2024
Date of Judgment: 24 August

Counsel; Tonowane for the Crown
Counsel: Rusi for the Defendant

VERDICT AND SENTENCE

1. Ms Elizabeth Tagivudu (“ET”) complains that Francis Paeni (“FP”) sexually abused her twice, this year 2024, at Bubukuana village, Choiseul Province. On the first occasion ET complained that FP had sexual intercourse with her by inserting his finger into her vagina, without her consent and that FP knew about or was reckless as to her lack of consent.
2. The second occasion ET complains that FP committed an indecent act on her by rubbing his erected penis on her vagina, without her consent and that FP knew about or was reckless as to her lack of consent. At the time of the first and second offending, in February and March 2024, ET was 14 years old. Mr FP is related to ET as her step father being married to her mother Matilda Tagivavae.
3. Mr FP was initially charged for five counts of sexual abuse by information filed 5/6/2024. He pleaded not guilty to the original charges on 31/07/2024. On 17/08/2024 before trial commenced in Gizo on 19/8/2024, Crown filed an amended information dropping three of the original charges. I arraigned FP on the amended information on the 19/8/2024. He pleaded guilty to the two surviving counts of rape and indecent act. Trial was vacated. I convicted Mr FP of the two charges premised on his guilty plea and summary of admitted facts. Next is for me to determine the appropriate punishment.
4. In Count 1 of the amended information Mr FP was charged for rape contrary to Section 136 (F) (1) (a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No 3 of 2016) - “the 2016 Act”. On an unknown date in the month of February 2024, at mid-night, in a house at Bubukuana village log pond, Choiseul Province, FP, ET and FP’s wife or ET’s mother were already fast asleep. They were sleeping together inside one room. FP and his wife slept at one side of the room and ET slept on the other side of the room. ET was not wearing any under-wear or a shirt. FP moved away silently from his wife to where ET was sleeping. FP then inserts one of his right-hand fingers into ET’s vagina for one minute and told her to remain quiet and not to tell anyone, otherwise he will kill her. ET woke up and called out to her mother but her mother was fast asleep. Tears were running down from ET’s eyes. The mother woke up so FP stopped.
5. For Count 2 Mr FP was charged for indecent act with a child under 15 years contrary to Section 139 (2) (b) of the 2016 Act. On an unknown date in the month of March 2024, at mid-night, in a house at Bubukuana village log pond, Choiseul Province, FP, ET and FT’s wife or ET’s mother were already fast asleep. They were sleeping together inside one room. FP and his wife slept at one side of the room and ET slept on the other side of the room. ET was wearing a stripe white skirt and a string top. She did not put on any underwear underneath her skirt. FP moved away silently from where he was sleeping with his wife to where ET was sleeping. He was naked. He rubbed his erected penis onto ET’s vagina for about 2 minutes. Whilst FP was doing this, his wife woke up and caught FP red-handed. She got very angry. She walked out of the room and locked the door from outside. FP went outside to open the door and sent ET away.
6. The two offences do not include penial sexual intercourse. One might regard the two sexual offences as not serious. Prior to the 2016 Act, it would have been difficult to proof the charge in Count 1 as rape. Under the 2016 Act however new sexual offences and harsh penalties were created. Touching inside the vagina of a female child is now classified as sexual intercourse by definition in the 2016 Act (see Section 136D (2) (a) of the 2016 Act). Nevertheless, I will on the facts, classify the offending in Count 1, as being at the lower scale, like in Ba’ai^[1], because there is no penial sexual intercourse.

Appropriate sentence for Count 1

7. For Count 1, rape is a serious offence under the 2016 Act because it carries a maximum penalty of life imprisonment (Section 136 F (1) (a) (b) of the 2016 Act). Maximum sentence of life imprisonment is a reflection of the seriousness with which an offence is regarded and reflective of the communities’ concerns and aversions to a crime and the need to protect children from an ongoing disgraceful activity (Regina v Tasia [2022]. However, I have power to impose a lesser sentence term, from what I see fit on the facts of this case.
8. For Count 1, I will give a start point sentence of 8 years according to Sinatau, Court of Appeal 2023 because this is a case of unlawful sexual intercourse with a child under 15 years. Defence does not take issue.
9. Then I identify the following serious aggravating factors: -
   1. Position of trust breached - At custom this may be the worst aggravating factor. Defendant is the step father or father of the victim. In custom and in the village and in terms of moral responsibility, there is a clear and higher expectation of trust that a father ought to take care and protect his daughter from sexual abuse. Defendant breached that position of trust when he turned on his step daughter in pursuit of his sexual gratification.
   2. Disparity of age - Defendant is 36 years in 2024. Victim is 14 years old in 2024. An age difference of 22 years. As an older person (father) there is an expectation for the defendant to be responsible and accountable in protecting the victim daughter from this type of sexual offending (R v Ramaia [2021] SBHC 96).
   3. Psychological and emotional harm on the victim - It is now well settled that offending of this nature causes long term effects such as trauma and psychological harm on victims. Court must take judicial notice of these long-term impacts, despite lack of professional medical evidence (Bonuga 2014; Court of Appeal).
   4. Repetitive offending – This will apply to Count 2 but I should address it now. The fact an offence is repeated on the same victim is a matter of considerable aggravation which can properly and understandably increase the sentence for the subsequent offence (Alu v Reginam [2016] SBCA 8; SICOA-CRAC 27 of 2014 (22 April 2016).
   5. Commission of the two offences in the comfort of the home at night – Both incidents took place at midnight when the victim, defendant and defendant’s wife were fast asleep. Victim was entitled to be sleeping at night with peace and security in the presence of her father and mother who were all sharing the same room. This is what a family safety-net is all about. Instead of guaranteeing the victim’s safety in the home at night, defendant twisted what ought to be a safe haven for the victim (home) into a crime scene.
   6. Pre-planning - There exists an element of pre-planning because the defendant had to wait until it was mid night and under cover of darkness when the victim and his wife were sleeping before he commits the two offences.
10. For 5 of the above 6 aggravating factors combined, I will increase the sentence to 13 years before mitigation. An increase of one year for each aggravating feature. Increases for serious aggravating factors should be in years and not merely in weeks and months.
11. Then I will reduce the sentence downwards due to mitigating factors. The first mitigating factor is early guilty plea. I will give 30 percent reduction (Pige, Court of Appeal 2023). It is not a late plea even though on the first opportunity the defendant pleaded not guilty. As part of the process, negotiations and bargains took place between parties resulting in the filing of an amended information. And the time in between entering not guilty and guilty pleas was very short (31/07/2024 to 17/08/2024 and 19/08/2024 – repeat paragraph 3). A 30 percent reduction will come to 3.9 years or rounded to 4 years. Next mitigating factors are first time offender with no previous conviction, cooperation with police and defendant’s personal circumstances. I only considered the latter reluctantly because there are fewer mitigating factors present in this offending. I will give 2 years reduction for these three mitigating factors combined. Defence counsel also submit that the defendant paid a compensation of $1,000.00 to save his marriage. Compensation is a worthy custom and I give recognition to it through a 1-year reduction. The final head sentence I will give for Count 1 is 6 years.
12. Defence counsel urged me to consider a similar factual case in the binding Court of Appeal decision of Ba’ai. Court of Appeal imposed 3 years’ imprisonment sentence term quashing the lower court’s 2 years suspended sentence. Ba’ai was uncontested with a start point sentence of 3 years. Here I use 8 years start point based on Sinatau (repeat paragraph 8). I considered defence submission at some length. The facts of offending in the 2 cases are identical. Victim in here and in Ba’ai are young (12 and 14 years respectively). Both cases involved finger insertion into the vagina. Both matters are uncontested. In both matters though the charges are different (sexual intercourse and rape) the maximum penalty is still the same (life imprisonment). Compensation (reconciliation) in custom was common in both matters. Both accused were bailed awaiting trial. In view of the binding effect of Ba’ai I will reduce the final head sentence from 6 years down to 4 years for Count 1. I attempt to strike a balance between the two binding Court of Appeal decisions of Ba’ai and Sinatau in terms of start point, gravity of the offending and the final head sentence after aggravation and mitigation.
13. I thought further about suspending the 4 years sentence for good behaviour but decided against doing that for three reasons on the basis of Ba’ai. First it will result in a remarkably light sentence. Second it will not be conducive to deterrence for both the defendant and public at large. Third, the sentence is already above 2 years. Hence cannot be suspended.

Appropriate sentence for Court 2

14. For Count 2 the maximum penalty available is 7 years imprisonment. In terms of the 7 years maximum penalty the start point sentence of 8 years in Sinatau is redundant. I will put the start point sentence at 1 year only. And increase by 6 years for the same 6 serious aggravating factors identified above in Count 1. That will reach the 7 years maximum penalty before mitigation.
15. Then I will give 30 percent reduction for early guilty plea as in Count 1. That comes to 2.1 years or rounded to 2 years. For first time offender with no previous conviction, cooperation with police and personal circumstances, I do the same thing above in Count 1 and give 2 years reduction. I also give 2 years reduction for compensation, a worthy custom. Final head sentence for Count 2 is 1-year imprisonment (not suspended due to deterrence).

Conclusion and Orders

16. Sentences for Counts 1 and 2 to run consecutively. There is no crushing effect on the defendant, the consecutive sentence being minimal (5 years only).

Court orders are: -

(i) Convict the accused on the charges of rape and indecent act.
(ii) Sentence the accused to 4 years imprisonment for Count 1.
(iii) Sentenced the accused to 1-year imprisonment for Count 2.
(iv) Count 1 and Count 2 sentences to run consecutive (5 years sentence term).

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] R v Ba’ai [2023] SBCA 9; SICOA-CRAC 7 of 2022 (28 April 2023).