R v Baura [2024] SBHC 67; HCSI-CRC 117 of 2024 (3 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Baura
Citation:
Date of decision:	3 May 2024
Parties:	Rex v Francis Mark Baura
Date of hearing:	26 April 2024
Court file number(s):	117 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The total final head sentence I will impose is 7 years custodial sentence. Defendant is entitled to pre-trial custody waiting time deductions, as determined by Auki Correctional centre
Representation:	Mr Tovosia for the Crown Mr Limeniala foe the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 136F (1) (a) and (b) [cap 26], S 136 D (2) (e)
Cases cited:	R v Ba'ai [2023] SBCA 9, R v Sinatau [2023] SBCA 38, Regina v Bonuga [2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 117 of 2024

REX

V

FRANCIS MARK BAURA

Date of Hearing: 26 April 2024
Date of Sentence: 3 May 2024

Counsel: Mr Tovosia for the Crown
Counsel: Limeniala for the Defendant

SENTENCE

Introduction, gravity of offending and admitted facts

1. By information filed on 28/3/2024, Mr Baura was charged for rape contrary to Section 136F (1) (a) and (b) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 - hereafter referred to as the “2016 Act”. Particulars of offence alleged that Baura on 7^th September 2023, did have sexual intercourse with Jayrose Siu by licking her vagina with his tongue, without her consent and knowing about or being reckless as to the lack of consent.
2. On the 26/04/2024, Baura was arraigned. Baura pleaded guilty premised on agreed facts filed on the same day. Court convicted Baura the same day. Court will now determine the appropriate punishment.
3. In terms of the gravity of offending this is a very serious crime because the maximum penalty prescribed by Parliament is life imprisonment (Section 136F (1) (a) and (b) of the 2016 Act). This is how serious Parliament sees rape under the 2016 Act. The charge is also serious because the act of rape here was committed on a 5 years old female victim (a child). This is morally unacceptable in custom, church and the law. The weak, vulnerable and tender aged small female child like the victim must be protected from sexual abuse. These are the values protected under the 2016 Act for women and girls. The prevalence of sexual abuse on small girls or women in our country led to the reforms made in the 2016 Act.
4. And although it is only the licking of the victim’s vagina, using the defendant’s tongue, it is still sexual intercourse for purpose of rape charges under Section 136F of the 2016 Act. Sexual intercourse is defined as licking the vagina or cunnilingus – Section 136D (2) (e) of the 2016 Act. What may in the past appear to be a sexual defilement or sexual indecent act on a small female child like the victim is now rape under Section 136F of the 2016 Act, elevating the status of this kind of sexual abuse to a worst class of offending. Even the mere fact that it happened to a 5-year-old female victim makes it a worst class of offending. Very young tender age girls like the victim should not be contaminated by any form of sexual impurities. The private part of every girl (big or small) is a taboo place not to be tampered with through any form of sexual abuse acts. In here the sexual abuse act is licking the vagina (defined as sexual intercourse under the 2016 Act).
5. Court will start with adopting the agreed facts in full: -
   1. Defendant is Mark Francis Baura who is from Dala South, West Kwaraáe, Malaita Province.
   2. Complainant is Jayrose Siu of Dala South, West Kwaraáe, Malaita Province.
   3. Defendant was 19 years old when he raped the complainant. The complainant was 5 years old at that time.
   4. Complainant was born on April 10 2018 at the National Referral Hospital in Honiara.
   5. On 7^th September 2023, at Dala South village, the complainant was playing with her cousins at a nearby playing field. The complainant’s mother went to the garden at that time.
   6. Complainant after playing wandered around and went straight to the lodge of the defendant which was just beside the field. The door of the lodge was open. The complainant went and sat on a bench in the defendant’s room.
   7. Defendant knew someone was inside. When he went inside, he saw the complainant. He could see her vagina as well because she was only wearing a skirt at that time.
   8. He removed the victim’s skirt and licked her vagina while she was sitting on the bench.
   9. Defendant after doing this made the victim wear her skirt and gave her a shampoo and she went out from the defendant’s lodge.
   10. At around 5:00pm that same day, the victim’s mother returned from the garden and learned about the incident from her 4-year-old son. The victim’s mother asked the victim who confirmed to her that the defendant had removed her skirt and licked her vagina.
   11. The matter was reported to Auki Police who did the investigation and arrested the defendant and subsequently charged him.

Starting point sentence

6. The starting point sentence for unlawful sexual intercourse with a child under 15 years is 8 years (Sinatau, Court of Appeal 2023). Defence submitted that it should start at 4 years relying on another Court of Appeal case of (R v Ba’ai, Court of Appeal 2023). Court of Appeal was of the view that the facts in Ba’ai was at the lower end of the scale – meaning it was not the worst class of offending. This was because the defendant only touched inside the clitoris part of the victim’s vagina with his hand. The victim was 12 years old. It was not a penial sexual intercourse. Hence not a worst class of offending.
7. The facts of this offending can be distinguished. The victim here was 5 years old. It was licking of the vagina like what the defendant did to one of the two small sisters in Sinatau case. In Sinatau the 2 victim sisters were around 10 years. Licking of the vagina should not be down played as a less serious offence at the lower scale end of offending. Although it is not penial penetration it is still serious when it is committed on a 5 years old girl. And it is serious because it is tantamount to sexual intercourse under the 2016 Act. The said Act was enacted to protect the young, vulnerable and weak women and girls from sexual abuse such as this. Here the small girl was playing. She got tired and went to have rest inside defendant’s lodge. This is what the vulnerable and innocent children do in villages. In the village everyone takes care of each other being a communal setting. It is serious because this kind of tender age female victim (5 years old) should be kept pure from sexual impurity and indecency – in this case rape.

Aggravating factors

8. Before I go to the aggravating factors, I remind myself again that this is a serious sexual abuse belonging to the worst class of offending (repeat paragraphs 3, 4, 6 and 7 above). The aggravating factors are: -
   1. Age disparity - Defendant was 19 years. Victim was 5 years. Age difference of 14 years. It is expected that adults like the defendant should be accountable and responsible to look after very young girls like the victim from this kind of sexual offending. In villages this expectation runs very real because it is a communal setting. Everybody lives together and takes care of each other in the village.
   2. Psychological and emotional harm - Court should always take judicial notice of long-term impact on the victim and her family despite lack of professional and medical evidence (Bonuga, 2014 Court of Appeal).
   3. Very young tender age of the victim - Victim was only 5 years old. She is considered very young and just a small girl or child for any male to have sexual feelings towards her. Her sexual organs are yet to develop. Her sexual hormones cannot ignite. And so, it is very wicked to even consider having sexual intercourse with a child like the victim. She is innocent and very young. Facts showed she was playing. She got tired and went to have rest in the defendant’s lodge. This is what innocent children do in the village. And in the village, everyone takes care of each other.
   4. Isolation – Defendant found the victim strayed at his lodge and took the opportunity in his room, a hidden location to lick the victim’s vagina. Hidden place means the defendant had all the time and freedom to complete his sexual desires on the innocent victim without interruption. For the innocent young girl, it means she cannot do anything or shout out for help.
   5. Vulnerable and weak – Small girls like this victim in the village are innocent, weak and vulnerable. They cannot protect themselves from harm and depend on others for their protection, general livelihood and upkeep. This is what happened here. Victim got tired after playing outdoors. She went to have rest in the defendant’s lodge. Instead of taking care and protecting the weak and vulnerable child, the defendant turned on her to satisfy his sexual gratification.
9. For all of the above 5 serious aggravating factors combined, I will inflate the start point sentence by 10 years (2 years for each factor). Inflation due to aggravating factors should be in years and not merely in weeks and months (Bade, Court of Appeal 2023). That will bring me to 18 years total sentence before mitigation.

Mitigating factors

10. Then the defendant is entitled to mitigation factors to reduce the total sentence downwards. First one is early guilty plea. Early guilty plea benefits all stake holders. For Court it saves time. For victim it saves her from recounting her ordeal and being traumatised in the witness box. For the defendant it shows remorse and taking responsibility for his actions. I will allow 30% reduction. That comes to 5.4 years (6 years). Next is first time offender with no previous conviction. I will deduct 1 year. Next is reconciliation and compensation I deduct 1 year, even though there is no evidence of compensation. I take judicial notice that this kind of things will always attract compensation in Malaitan villages. Youthfulness of the defendant. I will deduct 3 years, because the defendant at 19 years still has life ahead of him.

Conclusion and Orders

11. The total final head sentence I will impose is 7 years custodial sentence. Defendant is entitled to pre-trial custody waiting time deductions, as determined by Auki Correctional centre. This custodial sentence will alert like-minded offenders to take notice that sexual contamination of small girls like licking the vagina (sexual intercourse) is not acceptable. That adults should take care of small girls who are mostly innocent, vulnerable and weak in villages. And that the Courts will go hard on such offenders.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE