R v Waura [2025] SBHC 86; HCSI-CRC 210 of 2023 (21 July 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Waura
Citation:
Date of decision:	21 July 2025
Parties:	Rex v Hopkins Waura
Date of hearing:	21 March 2025
Court file number(s):	210 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The defendant is convicted on his own plea of guilty. 2. The defendant is to serve a 9 years’ imprisonment to commensurate from today.
Representation:	Mr J Auga for the Crown Mr J Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) 2016 Act S 139 (1) (a)
Cases cited:	Bara v R [2018] SBCA 10, R v Timothy Sulega (Unreported Criminal Case No 113 of 1999), R v Pige [2023] SBCA 36, R v Sinatau [2023] SBCA 38, Tariani v Reginam [1989] SBCA 3; [1988-1989] SILR 7,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 210 of 2023

REX

V

HOPKINS WAURA

Date of Hearing: 21 March 2025
Date of Sentence: 21 July 2025

Mr J Auga for the Crown
Mr J Brook for the Defendant

SENTENCE

Faukona DCJ:

1. The Defendant Mr. Hopkins Waura was charged for sexual intercourse with a child under the age of 15 years, contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (amendment) (sexual offences) Act 2016. On 14^th March 2024 the defendant entered a plea of guilty to the charge.

Summary of agreed facts.

2. The defendant is Mr. Hopkins Waura, he comes from Aua village, North Star Harbour, Makira/Ulawa Province. He is 33 years old and married with two children.
3. The complainant is Ms. Melisha Kabi’i, from Mwaniqwagosi village, North Star Harbour, Makira/Ulawa Province.
4. The defendant is the complainant’s uncle.
5. At around 8pm in the evening of 11^th September 2021, the defendant went to buy cigarette at a canteen at Mwaniqwagosi village and to buy kwaso (home brew) for some boys who were working at a logging camp and who had given him some money. He was drinking some beer that evening and still holding onto a can of SB beer in his hand.
6. After he bought cigarettes, he saw the complainant and asked her where she had been and she said she was returning from toilet at the beach. The defendant asked the complainant if he could have sexual intercourse with her and she agreed. He then told her to follow him to Aua village to get some of his beers and to give the kwaso drinks to the boys which he bought.
7. The defendant and the complainant then went to Aua village and then later returned to Mwaniqwagosi village. As they were about to reach the beach area, they saw someone with flash light coming towards them. They then escaped and went to the beach further from the direction where the oncoming person was heading.
8. Upon reaching the beach, they waited for the person with flashlight to pass by and then they went to the beach further at a point called Mwawairea. When they reached there, they sat down and rested for a few minutes. The complainant said she was afraid of her boyfriend but then said it was fine, he would not know.
9. They started kissing. The defendant then removed his shirt for the complainant to lay on so they would have sexual intercourse. The defendant also removed the complainant’s shirt and she removed her bra and trousers of her own. The defendant also removed his trousers.
10. The defendant and the complainant then had sexual intercourse. After that both dressed up, sat for a while chatting and the defendant drank one of his beers. Then both returned to Mwaniqwagosi village to the same spot they initially met. The defendant left the complainant there and then returned home to Aua village.
11. The defendant was later arrested and charged for the offence of sexual intercourse with a child under 15 years contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (Amendment) (Sexual offences) Act 2016.
12. The defendant was interviewed by police on 18^th September 2021. He accepted that he had sexual intercourse with the victim consensually.
13. The defendant later reconciled and compensated the complainant’s parents in 2021 with the sum of $2,600-00. The village chief along with both parties witnessed the reconciliation and compensation ceremony.
14. In the case of Bara v R^[1], the Court of Appeal set out sentencing guidelines for the judge to follow.
    • (1) A sentencing judge should identify a starting point.
    • (2) From there on adjustment will take account of factors which make the offending serious (aggravating features).
    • (3) Or may serve to suggest the sentence is too harsh and often more related to the offender than the offence (mitigating features).
    • (4) After identifying aggravating and mitigating features and how they affect the starting point, reference should be made to the effect if applicable, of an early guilty plea.
    • (5) Where discount be given that should be indicated. Where no discount is to be given, a reason for that decision should also appear in the remarks.
    • (6) Were no allowance being made for pre-sentence period in custody, the court should give reasons.
    • (7) Finally, the application of totality principle of sentencing to ensure the end result reflect the similarity involved.

Sentencing principles.

15. In determining an appropriate sentence, the Court must be vigilant to maintain a balance approach^[2]. The principle that guides the exercise of discretion are, deterrence, protection/prevention, rehabilitation and retribution. A judge ought to decide which principle to apply. In some cases, a judge will give a balance consideration, in others, a judge will emphasize one principle.
16. When approaching the task of sentencing, the Court must ask itself whether the public interest in the case will be served by retribution or deterrence to the offender and others, or whether the public interest will be better served by the rehabilitation of the offender^[3].

Starting point.

17. In the case of R v Sinatau ^[4]the Court of Appeal held that “It is time to set new starting point for offending against children, .... We reaffirm the statement above from Pana and lay down the starting point for offences under S.136F and S.139 of the Penal Code as amended in 2016, involving children under the age of consent in a non-contested matter is 8 years”.
18. At paragraph 17 of the Pana case, the Court of Appeal stated that the fact the victim is a child which brings the case into the 8 years starting point.
19. In the case of R v Pige^[5], which the court held that “this was gratuitous offending against a very young child”, and that it was very serious offending, which must attract the starting point set out in Sinatau, of eight years imprisonment.
20. Like the authorities cited on precedence been done, I am legally obliged to set 8 years as starting point in this case. Noting the circumstances and the age of the victim fall squarely to that precedence.

Aggravating factor.

21. The first aggravating factor is the age of the victim. She was 12 years old at the time of the offending. The principle that the “aggravating effect on sentence will usually be greater, the younger the age.” She is well below the age of consent and her young age made her helpless against the action of the defendant.
22. Age disparity is 20 years, this is reasonably great. The defendant was 33 years at the time of offending.
23. Abuse of position of trust. I noted in the Crowns submissions that the defendant is the victim’s uncle. However, no further evidence to verify this relationship or in what way. From the summary of agreed facts, the defendant and the victim lived in different villages. The defendant’s village is at Aua and the victim’s village is at Mwaniqwagosi.
24. Despite those indifferences, the statement of the victim given to the police clearly outline that the defendant is her uncle. Her mother’s sister got married to the defendant. In custom the defendant is the victim’s uncle. As such the defendant is in a position of trust. That trust was abused for selfless reason and sexual desire. The defendant should have realized that the victim was his niece, he is expected to provide care and security ensuring no one abused her or sexually abuse her. Instead, the defendant took upon himself that which is unacceptable in custom and law by having sexual intercourse with his niece who was 12 years at the time of offending. This is serious and aggravating.
25. It is well accepted fact that having sexual intercourse with a child below the consent age, often cause trauma and psychological harm to the victim. There may not be any evidence to proof, but courts do always take judicial notice of the devastating effect on the victim which cannot be ignored.
26. These aggravating factors are naturally and often similar in nature, or on standard form, applies to almost every criminal convicts. By virtue of law the Court are obliged to accept to decide the length of the sentence.
27. In the current case, there is something that I need to add beside aggravation. Upon reading of the summary of agreed facts I noted certain anomaly. To ascertain the facts, I take the position to thoroughly read the record of interview and the police statement taken from the victim.
28. From them I am satisfied that agreed facts are more in favor of the defendant and not the victim. There is nothing recorded in the police statement that the victim agreed for sexual intercourse, or that she had a boyfriend. There is nothing in the record of interview that the defendant ever told the police that the victim had a boyfriend. All that he mentioned to the police was that the victim greed for sexual intercourse.
29. Also noted from the police statement, the victim never agreed to sexual intercourse. From the spot they met to the spot where the offending took place, on the beach, the defendant continued to hold the victim’s hand. Two outcomes can be deduced from holding on to her hand. One to ensure she did not escape and secondly, an expression that the defendant had controlled the situation. In other words, she was suppressed and not permitted to say or do anything. When the defendant had sex with her, she felt pain and she cried.
30. With the above narration the starting point of eight years is uplifted to 11 years, on acceleration of 3 years to reflect the circumstance of offending.

Mitigating features.

31. The defendant is 33 years of age. He earns money from hiring of his father’s boat, and selling of local food items in the village. His education reached standard 5 primary school.
32. I give credit to the defendant for pleading guilty at earliest opportunity. It saves time and resources and saves the complainant being called into the witness box to relate an ordeal which would have embarrassed her life. By entering plea of guilty at first instance reflect the defendant’s remorse and acceptance of responsibility of the offending he committed.
33. The Court also noted and consider that the defendant had reconciled with the complainant’s parent and had paid $2,600-00 compensation. In custom the broken relationship between them caused by offending has been repaired and restored, but they do not annul the offence or penalty^[6].
34. However, compensation can only be considered if it shows a genuine contrition and the scale of payment may give a degree of contrition. Court must avoid attaching such weight when it appears to be a means of buying oneself out of trouble^[7].
35. I noted a letter dated 26^th September 2021 signed by the defendant’s father, the victim’s father and four other chiefs. The letter was addressed to police in charge, Namuga substation. The intention of the letter was to withdraw or revoke the case. The reason was being reconciliation had been done and compensation had been paid.
36. The Chiefs and fathers of the parties had fallen prey to such lucrative amount of compensation and reconciliation. Their intention was to buy the defendant out of trouble. This is exactly what Asuana’s case forbade. The intention is clear. I must therefore not to accept reconciliation and compensation as the intention in doing was to negate any criminal culpability.
37. The delay in this case is not grievous nor did it prejudice the right of the defendant for fair trial within reasonable time. The offence was committed on 11^th September 2021.
38. A short PI was conducted on 23^rd February 2023. The PI papers were sent to the High Court on 17^th March 2023. The information was filed in the High Court on 18^th August 2023. The case was finally heard on 21^st March 2024.
39. From the chronology of events as outlined above, there is no unreasonable delay, but administrative delay which contains no element of unreasonableness.

Other mitigating factors.

40. I noted the defendant has no previous criminal records. This offence was the first but the worst as well.
41. I have read the record of interview and the police statement of the victim. There is no consensual sexual intercourse. When they met the defendant grabbed her right hand and told her to follow him to Aua village. She further stated that the defendant held her hand firmly and led her.
42. Before they arrived at the point on the beach, they stopped because she did not want to go further so she sat down. The reason she sat down was because she was not willing to go further and she feared the defendant will do something to her.
43. Whilst sitting down the defendant still held on to her hand. Then with his left hand pulled her hair to follow him. From then she knew the defendant would do something to her so she cried and sat down. They both continued to walk but she was still crying.
44. Whilst at the point and both were still standing, when the defendant undressed the victim. He was still holding onto her hand. When she was fully naked, he laid her down and had sexual intercourse with her. At first the victim had closed her legs, eventually he succeeded in opening them.
45. It is clear as crystal there was some degree of force used. Her statement did not mention she had a boyfriend, neither was mentioned by the defendant in the record of interview.
46. From those facts there is no consensual sexual intercourse, or mutually agreed sexual intercourse. It does not in any manner reduce the criminal culpability rather it accelerated it. The agreed facts as mentioned above, do not reflect the facts from the statements recorded by police even not under any proper analysis before conclusion. Apparently, they seem to favor the defendant on major element.
47. Having considered these mitigating factors as outlined above, I therefore reduce the starting point from 11 years to 9 years, a reduction of 2 years.
48. Such sentence is necessary for variety of reasons. First to mark the gravity of the offence. Secondly to emphasize the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender and lastly to protect women and girls.
49. Paragraph 48 above upholds a deterrent sentence not merely to warn others but to warn the defendant not to repeat the same. And to punish him and make him realize by the effect and the length of the sentence.

Orders:

1. The defendant is convicted on his own plea of guilty.
2. The defendant is to serve a 9 years’ imprisonment to commensurate from today.

THE COURT.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018)
^[2]R v Timothy Sulega (unreported criminal review case No. 113 of 1999)
^[3] Jonson Tariani v R [1988 -8] SICR 7.
^[4] Criminal appeal case No. 9027/2023(13^th October 2023)
^[5] Criminal Appeal case No. 9014 of 2023(13 October 2023)
^[6] Kyio v Reginum [2004] SBHC 90.
^[7] Regina v Asuana [1990] SBHC 106