R v Beani [2024] SBHC 77; HCSI-CRC 270 of 2023 (9 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Beani
Citation:
Date of decision:	9 August 2024
Parties:	Rex v David Beani
Date of hearing:	2 August 2024
Court file number(s):	270 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The final head sentence I will impose on DB is 12 years imprisonment. The 12 years will be back-dated to start running from December 2022, when DB was first taken into remand
Representation:	Auga and Oroi for the Crown Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Ramaia [2021] SBHC 96,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 270 of 2023

REX

V

DAVID BEANI

Date of Hearing: 2 August 2024
Date of Sentence: 9 August 2024

Counsel: Auga and Oroi for the Crown
Counsel: Brook for the Defendant

SENTENCE ON A CHARGE OF PERSISTENT SEXUAL ABUSE

1. Mr David Beani (“DB”) I convicted you of persistent sexual abuse against Betty Keo (“BK”) a child under 15 years. I delivered the guilty verdict on 12/7/2024. Here I have to determine the appropriate punishment.
2. Mr DB you are convicted for a serious crime. The maximum penalty is life imprisonment. However, I have power to impose a lesser sentence term. Your offending is at the highest scale because it is repetitive (on 5 different occasions), you are in a position of trust to the victim and you have destroyed the victim’s education (key to her future well-being).

Start point sentence

3. The start point sentence is 8 years according to Sinatau Court of Appeal 2023 – the offending being unlawful sexual intercourse with a child under 15 years. The victim Betty Keo (“BK”) was 14 years at time of offending. Defence is not taking issue with 8 years start point.

Departure from start point sentence

4. Both counsel agree that Court can depart from the start point sentence because of the peculiar circumstances present in this offending. The peculiar circumstances warranting departure are – persistent nature of offending, contested matter and the particular aggravating factors of the offending. Here the aggravating factors are serious and far outweighs the mitigating factors. Whilst I do not disagree, I will stick to the start point sentence. Computing the mathematics of the deviation and remaining with the start point, there will be little difference on the total final head sentence I will impose. The mathematics is - the start point sentence (+) aggravating factors (-) mitigating factor (=) final head sentence.

Aggravating factors

5. Then I will uplift the 8 years start point sentence due to the presence of serious aggravating factors: -
   • (i) Repetition of offending – Repetitive harm occasioned on the same person is a serious aggravation. Mr DB had penial sexual intercourse with BK on 5 separate occasions and ejaculated. BK could get pregnant (a risk BK was subjected to). Repeating as in here also shows the reckless attitude, behaviour and thoughts of a relative adult person like DB. DB had opportunity to repent from the repetitive sexual harm occasioned on BK.
   • (ii) Abuse of position of trust – DB is the cousin brother of BK. This is a matter of serious aggravation in custom. In custom and in the village, communal bonding is very much alive and intact. There is a clear and higher expectation of trust that a male relative ought to take care of his female relative from sexual abuse. DB breached that position of trust, when he turned on his cousin sister to satisfy his sexual gratification.
   • (iii) Psychological harm – It is now well settled that offending of this nature causes long term effect such as trauma and psychological harm on the victim. Courts must take judicial notice of these long-term devastating impacts, despite lack of professional medical evidence (Bonuga, Court of Appeal 2014).
   • (iv) Disparity of age – Mr DB was 53. BK was 14 years at the time of offending. An age difference of 39 years. As an older person (cousin brother) there is an expectation for DB to be responsible and accountable in protecting BK from this kind of offending (R v Ramaia, [2021] SBHC 96).
   • (v) Pre-planning – DB is a married man and cousin brother of BK. They live in the same village. I could see a lot of implied pre-planning in this case. In one incident, DB tricked BK to go with his kids and others to pick ngali nuts (nuts) and cut firewood for him. At other occasions, DB would follow BK and other children from the village whenever they go to pick nuts nearby or inside DB’s cocoa farm. Impliedly DB was always planning and looking out for an opportunity to lay his hand on BK.
   • (vi) Isolated spot – On all 5 occasions DB had sexual intercourse with BK in the bush. Isolated location means BK cannot access help or escape. For DB it means he had the liberty to achieve his sexual intent without interruption. DB had unrestricted space and time to achieve his sexual desires on a vulnerable young relative girl at isolated locations around the vicinity of Namarango village.
   • (vii) Weapon and intimidation – Each time DB met BK at isolated spots around Namarango village, he would carry his bush knife with him. There was no evidence he used his knife to threaten BK. However, there was evidence that BK submitted to have sex out of fear of the bush knife DB was holding in his hand on the 5 occasions he met BK and asked her for sex at isolated locations.
   • (viii) Spoilt education – Education is the key to the future well-being of a child. If that is true and I know it is, then BK’s life and a future for her was disrupted. She quit school due to this problem at Class 4. This is an aggravating factor against DB. And he knew it, that he destroyed the key to the future well-being of his own relative.
6. For all of the 8 serious aggravating factors present in this offending, I will increase the sentence substantially by 16 years (2 years for each aggravating factor). Inflation due to serious aggravating features must be in years and not merely in weeks and months (Bade, Court of Appeal 2023). Additionally, the maximum penalty here is life imprisonment warranting a substantial increase in aggravation. I will impose 24 years total head sentence before mitigation.

Mitigating factors

7. I also note the presence of mitigating factors in favour of DB to reduce the inflated sentence downwards. The first is first time offender with no previous conviction (5 years). I note that there are some delays and there is a possibility for DB to rehabilitate and come out from prison a reformed person. I will deduct another 5 years. I note that DB has spent in excess of 18 months’ pre-trial custody. I will just round that off to 2 years and back-date the sentence term by 2 years. Defence counsel submitted sickness as a mitigating factor. But I am not assisted with any authority. My understanding is sickness is a matter that the Correctional Centres have a policy or practice in dealing with to benefit the prisoner in terms of early release based on health issues and medical advice.

Conclusion and Orders

8. The final head sentence I will impose on DB is 12 years imprisonment. The 12 years will be back-dated to start running from December 2022, when DB was first taken into remand. A custodial sentence is necessary to give out a strong warning to like-minded offenders that the Court will come out hard on those who sexually abuse young girls. This is what parliament intended in the 2016 legislative reform whereby new sex abuse offences and increase in penalties were created. Parliament was addressing the wide spread issue of sexual abuse on women and girls in the said 2016 reform. Court must not lose sight of Parliament’s intention to remedy a serious mischief (prevalent sexual abuse of women and girls).

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE