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R v Bako [2022] SBHC 53; HCSI-CRC 204 of 2022 (2 August 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 204 of 2022

REGINA

V

JUNELYN BAKO

Date of Hearing: 29 July 2022
Date of Decision: 2 August 2022

Mr. John Zoze Wesley for the Crown
Mr. Benham Ifuto’o and Mr Oxley Limeniala for the Defendant

SENTENCE

Bird; PJ

1. The defendant Mr Junelyn Bako is charged with the offence of sexual intercourse – child under 18 contrary to section 140(1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the 29^th July 2022, this defendant had entered a guilty plea and he was convicted accordingly. He was appears before me for sentence.
2. The offence for which you are charged is serious and carries a maximum sentence of 15 years imprisonment. Notwithstanding the maximum sentence, the courts are empowered under s.24 (2) of the Penal Code to impose a shorter sentence depending on the peculiar circumstances of each case.
3. The facts of your case are that the victim was 16 years old at the time of incident. You are the victim’s paternal uncle. You and the victim lived together in the same household at the time of incident. On 10 December 2021, the victim was awoken at about 3-4am from your shouts. You called the victim’s aunt Vivian Melody to come to you. You appeared drunk and aggressive and told Vivian to go back to her village at Nafinua, East Malaita. Vivian got her belongings and went away.

As Vivian was leaving, the victim followed her to the main road, leading to Aligegeo School. They looked back and saw you following them. Upon reaching them you instructed them to return to the house.
Because of your behaviour, Vivian did not return but went her way. You grabbed the victim and pulled her to an empty house beside the road at the Rurusia area. The victim was afraid and screamed but you shut her mouth with your hands.
Whilst in the empty house, you pulled and removed the victim’s clothes and exposed her nakedness. The victim cried and told you that you are her uncle. You nonetheless pushed your penis inside her vagina and had sexual intercourse with her until she felt weak. You then pulled the victim beside a fence in the same area and had sexual intercourse with her again. After the incident, the victim wore her clothes and went straight to her uncle Junior Mani and told him what you did to her.
The victim was taken to Kilufi Hospital on the same day for medical examination. A medical report was prepared and it confirmed that there was an abrasion on the left side of her vulva and no hymen was present. There was a pussy discharge, greenish in colour and of significant amount noted in her vagina and non-offensive.
A formal complaint was lodged with the police on the 12^th December 2021.

4. In order to assist me in the imposition of an appropriate sentence in your case, I must weigh the aggravating features to the mitigating features herein. The starting point in your case are the guidelines set out by the court in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145. The court laid down a number of factors that the courts must consider and take into account in the sentencing of sexual offenders. These factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case it is submitted by Mr Zoze of counsel for the crown that there is presence of age disparity and abuse of position of trust. You were 27 years old then and the victim was 16 years old. The age disparity was one of 11 years. You were a matured man but you have allowed yourself to stoop so low and committed the offending. Coupled with that is the fact that you are the victim’s paternal uncle. In our Solomon Islands culture, the victim looks up to you as a father-fingure. You are highly regarded in society and you have great responsibility as a paternal uncle but you have breached the trust placed upon you and sexually molested your very own niece.
6. It is submitted that you repeatedly used force on the victim. You grabbed and pulled her into an empty house and had sex with her. As if that was not bad enough, you further pulled her beside a fence in the area and had sex with her again. You also shut her mouth to prevent her from shouting for help.
7. At the background of all that was happening, you were intoxicated. Being intoxicated is not a mitigating feature for you. It is an aggravating feature and it will weigh heavily on you. If you have been sober minded you just might not have committed the offending.
8. It is further submitted that what you did had caused a devastating effect on the victim and the family as a whole. The victim is your sister’s daughter. You have no boundaries and absolutely have no respect for your family members. The victim will carry the stigma for the rest of her life.
9. On your behalf it is submitted by Mr Limeniala of counsel that you have pleaded guilty to the offending at first opportunity. Your early guilty plea shows you are remorseful and that you have owned up to your offending and willing to face the consequence of your actions. The guilty plea also saves the courts time and resources into conducting a trial into the matter. It also saves the victim further stress and trauma in having to give evidence in a contested trial. You are a young adult of 27 years old. You are married with 2 children. You are a first offender without any criminal history. I have also noted your other personal circumstances but these personal circumstances would have less weight in this sentence. See the case of R v Phoboro and the comments of Pallaras J in that case. I have also noted that no weapon was used in the offending.
10. I am also minded to note that you have been remanded in custody since the 14^th December 2021. To date you would have been remanded in custody for a period of 7 months and 10 days. That period of time will be taken into account in your sentence.
11. I have had the opportunity to peruse the cases cited by both counsel for the crown and the defence and have noted them. I have noted that the range of sentences imposed by the courts in like offences is an imprisonment term of 2 years to 6 years. From the facts of your case, I put your starting point at 4 years imprisonment. For the aggravating features in your case I increase the sentence by 12 months. For the mitigating features and especially the guilty plea. I would reduce the sentence by 2 years. I therefore impose a total sentence of 3 years imprisonment. I direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant Mr Junelyn Bako is convicted of 1 count of sexual intercourse – child under 18 contrary to section 140 (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. You are sentenced to 3 years imprisonment
3. I direct that the time spent in pre-trail custody be deducted from the total sentence.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge