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R v Bako [2021] SBHC 40; HCSI-CRC 165 of 2019 (28 May 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 165 of 2019

REGINA

V

NATHANIEL BAKO

Date of Hearing: 16 May 2021
Date of Decision: 28 May 2021

Miss. Francisca Angilio Luza for the Crown
Mr. Sholton Rodney Manebosa for the Defendant

SENTENCE

Bird PJ:

1. By indictment filed on the 11^th March 2021, the defendant Mr. Nathaniel Bako was charged with five (5) counts of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned the defendant had pleaded guilty to all charges. He was thereby convicted accordingly.
2. The offence of incest is very serious in nature because it intrudes into the privacy of the victim coupled with the fact that it infringes into the issue of trust within a family circle. To manifest its seriousness, the maximum sentence that is codified under our laws is one of life imprisonment.
3. The facts of your case are as follows:

You are from Tirotue Village, Hovikoilo Ward, Isabel Province. The victim is from Popoheo Village, Hovikoilo Ward, Isabel Province. You and the victim are related to each other as grandfather and granddaughter. You are the victim’s paternal grandfather. The victim was living with you and your wife Selina at Tirotue Village. The victim was born on the 4^th April 2006 and she was about 11 years old at the time of offending. You were about 63 years old then.
The first incident occurred on an unknown date between 1^st January to 30^th April 2017 in a mangrove at Tirotue Village. The victim was washing dishes at a stream. You approached her and pulled her to a mangrove beside the stream. You undressed her, inserted your finger into her vagina and thereafter, you penetrated your penis into her vagina and had sex with her.
The second incident occurred on an unknown date between 1^st May to 31^st August 2017 at your kitchen at Tirotue Village. It was at night time and the victim was sleeping. Her grandmother Selina had gone to the convenient place. You went to the victim and inserted your figure into her vagina. You then sat on top of the victim, penetrated your penis into her vagina and had sex with her.
The third occasion occurred on an unknown date between 1^st September to the 31^st December 2017 at your kitchen at Tirotue Village. It happened at night time whilst the victim was sleeping. You inserted your figure into her vagina. Thereafter you penetrated your penis into her vagina and had sex with her.
The fourth incident occurred on an unknown date between 1^st January to 31^st December 2017. It happened in the daytime when you, Selina and the victim went to Ghojoruru planation to do copra. The victim was told by her grandmother to climb coconut. You followed her and grabbed her hands. You then took her to the bush, undressed her and made her lay down on the ground. You then had sex with her.
The fifth incident occurred on the 2^nd February 2018 in a coconut plantation at Moffat’s place. On that day, you and the victim had gone to attend a Saints Day program at Popoheo Village. After the program, you paddled back home and went ashore at Moffat’s place. You then took the victim to a coconut plantation, undressed her and made her lay down on the ground and inserted your finger into her vagina. You then inserted your penis into her vagina and had sex with her.
On all five occasions when you had sex with the victim, she felt pain in her vagina.

4. Despite the fact that the maximum sentence for incest is one of life imprisonment, the sentences that the courts would normally impose in each cases depends on the circumstances of the offending. On that basis and having stated the agreed facts in your case, I am obliged to take into account the aggravating and the mitigating features in your case.
5. I am told by Ms. Luza of counsel for the crown that there is a presence of several aggravating features in your offending. The first is the very young age of the victim. I am told that the victim was only 11 years old when you initially had sexual intercourse with her. She was below the consenting age and you have robbed her of her innocence. The young age of the victim is a very serious aggravating feature in your case.
6. Another aggravating feature in your case is the abuse of position of trust. I am told that you are the victim’s paternal grandfather. The victim’s father is your biological son. As a grandfather, you are morally and legally required to care for, to have respect for and to protect the victim. The victim’s mother and father and the community at large had placed that trust on you but you have breached that trust for your own selfish lust and gratification.
7. I am also told that there is a huge age disparity between you and the victim. You were 63 years old at the time of offending and the victim was only 11 years old. The age difference between you was 52 years. You were at a ripe old age of 63 years and you have behaved like a teenager that had no regard and no respect for the dignity and welfare of the victim.
8. I have also noted from the crown’s submission that there was a repetition of the offence on five separate occasions. That is signified in the five counts of incest that you are charged with. As an adult you should have had time to think about and reflect back on your sexual behaviour towards the victim but you never did. You have continued to sexually assault your granddaughter over a period of more than one year. You used your granddaughter as a sexual object for a long period of time. You have taken advantage of the victim’s vulnerability for your own sexual lust.
9. I am also urged by the crown to take note of the fact that what you did to your granddaughter had caused her physical, psychological and emotional trauma. What you did to the victim is very disgraceful and brings shame on the victim and members of your family.
10. Having stated the aggravating features in your case, I am also minded to take note of the mitigating features submitted on your behalf. I am informed by Mr. Manebosa of counsel that you have pleaded guilty to the various offending at first opportunity. I give you credit for your early guilty plea. Your early guilty plea shows remorse on your part and that you have owned up to your offending and you are willing to face the consequences of your action. Your early plea had also save the courts time and resources in conducting a trial into this case.
11. I am further told that that you have no prior conviction. You are a first offender and I commend you for living a life free of crime until this offending. I urge you to continue living a changed and dignified life after your incarceration. Learn from your mistake and do not reoffend.
12. I have heard that you are now 64 years old and a family man. I am also told that you have been remanded in custody since the 27^th February 2018 to this date. I am very concerned about the delay in the prosecution of your case. From the court records, you were committed to this court on the 17^th July 2018. The information against you was not filed by the Director of Public Prosecution until the 11^th March 2021, some 2 years and 8 months after your committal hearing. I do not condone the actions of the DPP is delaying this matter for more than two years. I can say at least that this is unreasonable delay on the part of the DPP.
13. Notwithstanding that this accused is said to have committed a very serious offence under our laws, an accused person also has his rights under our constitution. Section 10 (1) of the Constitution provides:
    • “If a person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.

Subsection (2) (a) further provides

• “Every person who is charged with a criminal offence shall be informed as soon as reasonable practicable, in detail and in a language that he understands, of the nature of the offence charged”.

14. The double effect of the above provisions promotes the rights of every person who are charged with a criminal offence. To delay the prosecution of criminal cases against accused persons is a breach of their rights under the constitution and as the maxim goes “justice delayed is justice denied”.
15. In trying to balance the aggravating and mitigating features in your case, I am referred to in a number of previous cases dealt with by this court on like offences. In the case of R v Ningalo [2013] SBHC 44, HCSI-CRC 78 of 2008, the accused was sentenced to 4 years imprisonment on four counts of incest.
16. In the case of R v Gole [2013] SBHC 183, HCSI-CRC 339 of 2011, the accused was sentenced to five years and 6 months imprisonment for the offence of incest.
17. In the case of R v Gathomana [2020] SBHC 10, HCSI-CRC 178 of 2019, the accused was sentenced to 4 years imprisonment on two counts of incest.
18. It was submitted by Mr. Manebosa of counsel that the defendant had good prospect of rehabilitation. At an old age of 64 years old, I am not convinced that the defendant has good prospect of rehabilitation. He committed the offending when he was 63 years old. By that age, he should have been matured and would be able to control his sexual emotions but he was unable to do that. A message must be sent out to like offenders or would-be offenders that the courts do not tolerate such offending as this and more especially on your close family members. There must be respect in our various homes so that such offending are minimised.
19. Upon weighing all of the aggravating and mitigating features in your offending, I hereby put your starting point at 6 years imprisonment. For the mitigating features in your case and especially the delay in the prosecution of your case, I reduce that sentence by 2 years.

Orders of the court

1. Count 1: The defendant is hereby convicted of one count of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 4 years imprisonment.
3. Count 2: The defendant is hereby convicted of one count of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
4. The defendant is hereby sentenced to 4 years imprisonment.
5. Count 3: The defendant is hereby convicted of one count of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
6. The defendant is hereby sentenced to 4 years imprisonment.
7. Count 4: The defendant is hereby convicted of one count of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
8. The defendant is hereby sentenced to 4 years imprisonment.
9. Count 5: The defendant is hereby convicted of one count of incest contrary to section 163 (1) (a) and (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
10. The defendant is hereby sentenced to 4 years imprisonment.
11. The sentences in respect of counts 1, 2, 3, 4 and 5 are to be served concurrently.
12. I further direct that the time spent in pre-trial custody be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge