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R v Baneo [2024] SBHC 177; HCSI-CRC 211 of 2023 (21 February 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 211 of 2023

REX

V

SMAUEL BANEO

Date of Hearing: 13 June 2023
Date of Sentence: 21 February 2024

Ms. Mutukera. M for Prosecutions
Ms. Palmer. R for Defence

SENTENCE

INTRODUCTION

1. On 13 June 2023, the prisoner pleaded guilty to one count of Rape, contrary to Section 136F (1) (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The maximum penalty for the offence is life imprisonment.
3. The incident occurred on 26 December 2022. He was committed to be tried at the High Court on 28 April 2023 by way of a Short Form Preliminary Inquiry.
4. The Information was filed on 22 May 2023.
5. The Summary of Facts was filed on 15 June 2023.

BACKGROUND

The defendant, Mr Samuel Baneo, is from Penalua Village, Temotu Province. He was 22 years old at the time of the offence.
The Victim is Lovenia Maetakeni, from Suena Village, Ugi Island, Makira Province. At the time of the offence, she was 16 years old.
The Victim was a Form 2 Student at Pamua High School in Makira Province. She lived with her mother, Nester Maetala, at Henderson at the time of the offence.
The defendant lived in the Henderson area, Central Guadalcanal, Guadalcanal Province, with his brother Samson at the time of the offence.
The defendant and the complainant are not related but are neighbors.

THE OFFENDING

1. _{On 26 December} 2022, around 4 am and 5 am, the ^{defendant went into the} _{complainant’s house in} Henderson while sleeping with her ^{little brother, who} was five years old at that time. The Victim's mother was at a party not far from their house then.
2. The defendant opened the main door and entered the house. He went to the Victim's room, pulled up the mosquito net, and touched her. He pulled her out of the bed with his hand. He grabbed her shirt with his right hand and led her along a small road in front of the victim’s house.
3. The defendant pulled her to a small house in front of the victim’s house. When they arrived at the house, the defendant took her in and locked the door from inside.
4. The defendant told her to remove her clothes. She was wearing blue jeans and a red T-shirt at that time. The defendant touched her breast and her vagina. Then the defendant laid her down and climbed on top of her.
5. The defendant then told the Victim to suck his penis, but she refused. The defendant then forced his penis into the Victim’s mouth, but she refused. At that time, she was fully naked.
6. Then the defendant climbed onto the complainant and pushed his penis into her vagina. It was very painful for her. Then he had sexual intercourse with the victim. After he ejaculated, she wore her clothes and went back to her house.
7. When the Victim arrived home, she cried and told her mother about what the defendant had done to her.

REPORT TO POLICE

8. The Victim’s mother reported the incident to the Henderson Police on the same day. The Henderson CID took the Victim to the Good Samaritan Hospital for medical attention.

TIME SPENT IN CUSTODY

9. _{He was} remanded in custody on 29 December 2022 to this ^{date. He spends} five months and seventeen days in custody.

ENACTMENT

6. In the course of preparing their submissions, I asked counsels to assist court with materials relating to the enactment of the Penal Code (Amendment) (Sexual Offence) Act 2016 and other relevant materials that might assist in understanding the reaction by community in general towards this type of crime and the response by authorities.
7. I am grateful for the assistance provided by Counsels and for their submissions on sentence.
8. I was provided a copy of the Solomon Islands Law Reform Commission - Second Interim Report (Sexual Offences) June 2013.
9. I noted part of paragraph 2.10 through to paragraph 2.11:
   • “The LRC conducted research into sexual offences that were prosecuted between 2003 and 2010 to identify sentence ranges and the factors that affect the type and severity of sentence that was imposed on those convicted of an offence.
   • In 38% of the cases that were considered the victim was in a family relationship with the perpetrator. In 84% of cases the victim knew the perpetrator prior to the offence.....
   • See further: paragraphs 2.22 to 2.39, LRC – 2^nd Interim Report (Sexual Offences) June 2013.
10. The Court of Appeal in Pana v R^[1] recognises the importance of information pertaining to statistics or the prevalence of sexual offences. The role played by the Solomon Islands Law Reform Commission in this regard is crucial.
    • [10] The learned judge was referred to a number of previous sentences for defilement and rape. In one of those cases, Soni v R [2013] SBCA 6, this Court had referred to the lack of information as to the prevalence of these offences. However, the judge referred Solomon Islands Law Reform Commission - Second Interim Report (Sexual Offences) June 2013d the Court to the second interim report of the Solomon Islands Law Reform Commission published, after the Soni case, in June 2013. Following a countrywide study, the Commission made reference to an “alarming level of sexual violence” and recommended the creation of new sexual offences and increases in penalties for others. It noted that, in comparison to our nearest neighbours in the Pacific Islands, sentences for sexual offences in Solomon Islands are low.
    • [11] The Court has not been provided with a copy of that report but we accept the learned judge’s reliance on the accuracy of the figures in the interim report.
11. As it transpired, parliament responded to the LRC Report through the enactment of the Penal Code (Amendment) (Sexual Offence) Act 2016 in the year 2016.
12. Counsel for the prosecutions urged court to consider sentence in light of the guidelines set by the Court of Appeal in previous cases, and in particular to ensure uniformity and coherence, past cases can assist greatly. ^[2]
13. Counsel also asked court to consider the principles of retribution, deterrence, prevention and rehabilitation.
14. Counsel referred this court to what the Court of Appeal says in Pana v R ^[3]
    • “We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement.”
15. Counsel also submitted that the process by which a judge deals with sentencing is as set out in Bara v Reginam,

“Approach to sentencing

15. With appropriate guidance, where available, a sentencing judge should identify a starting point. From the starting point there will be adjustment to take into proper account factors which make the offending more serious (aggravating features) or may serve to suggest that the sentence is too harsh, often more related to the offender than the offence (mitigating features). This requires the judge to set out what he regards as aggravating and mitigating when he intends to take them into account in the final sentence or reasons why he intends not to take them into account.
16. After identification of the 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. Where a discount is to be given that should be indicated. Where no discount is to be given a reason for that decision should also appear in remarks made on sentencing. Equally where no allowance is to be made for pre-sentence periods of custody served relating to the offending before the court reasons should be given. See Tii v R 2016 SBCA 14.
17. Finally, the totality of the sentence should be examined, to ensure that the end result properly reflect the criminality involved in the offending.”

16. The same was submitted by Counsel Palmer for the prisoner but went further to refer to paragraph 18 of the Court of Appeal judgment,
    • “18. Following this sentencing structure, published sentencing remarks should include, inter alia, the identified starting point, aggravating and mitigating features, account taken of plea, the application of the totality principle and a discussion of credit for pre-sentence custody.”

AGGRAVATING FACTORS

17. Counsel for the prosecutions submitted the following as factors that Counsel says aggravated the offending:
    • (i) Vulnerability of the victim. Counsel explained the victim being 16 years old at the time of the offending; her young age is an aggravating feature.
    • (ii) Premeditation. Counsel says it was night time when the incident occurred.
    • (iii) Effect on the victim. Psychological harm on the victim. The VIS is attached – describes serious harm resultant from the offending. Counsel referred court to the case of R v Liva [2017] SBCA 20 at paragraph 25 citing R v Bonuga [2014] SBCA 22:
    • 25. At [23] of Bonuga this Court said:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
18. Counsel for the prosecutions submitted that the starting point in this case should be between 6- and 7-years imprisonment. Counsel then further submitted that the starting point should be uplifted to account for the aggravating factors then reduced it to account for the mitigating factors.
19. Counsel also submitted that time spent in custody which she puts it at – from 29 December 2022 to date awaiting sentence should be deducted from the total sentence. Counsel referred to s24(5) of the Penal Code and Tii v R [2017] SBCA 6, at paragraph 30,
    • “In a case like the present, where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.”

DEFENCE SUBMISSIONS

20. Counsel for the prisoner highlighted in her submissions the personal circumstances of the prisoner.
    • (i) The Defendant is 23 years old and is single.
    • (ii) He is from Malubu Village in Temotu Province
    • (iii) He has 4 siblings; a brother and three sisters. The Defendant is the last-born child in his family.
    • (iv) He reached Form 3 level in his education.
    • (v) Prior to his arrest, he resided at Henderson area, East Honiara with his older brother Samson Tavake.
    • (vi) Since March 2022 up until the time of his arrest, the Defendant was doing casual work for an Asian Company called CCECC that are responsible for the construction of stadium next to KGVI School. His work involved making casings for the stadium posts. He was paid $1500 per fortnight.
21. Counsel Palmer submitted that whilst being under the influence of alcohol at the time of offending is not a defence and as I understood Counsel did not proffer that as a defence, it explains why the prisoner acted the way he did.
22. Counsel Palmer submitted that in saying that the prisoner was under the influence of drinking alcohol at the time of the offending, the prisoner was not of a sound mind in making the right decision, says Counsel. Whatever that means, I accept that the prisoner perpetrated the act he had pleaded to, fully conscious of what he was doing and that it was wrong in law.
23. Counsel for the prisoner discussed the mitigating factors: -
    • (i) Guilty Plea/Remorse. Counsel submitted that the prisoner entered a guilty plea when he was arraigned on 13 June 2023. Counsel explained that this demonstrated that he acknowledges that what he had done to the victim was wrong and contravenes the law of Solomon Islands. It also shows that he was willing to face the consequences of his actions, says Counsel.

Counsel Palmer referred to the case of R v John Mark Tau and Others HC CRC No.58 of 1993, where Palmer, J (as he then was), stated,

“a plea of guilty demonstrates very clearly in my view a person who is not only remorseful, and is sorry for all his actions, but is courageous enough to face up to his own actions and the consequences that normally flow from it.”
The guilty plea also saves the Court, and parties a considerable amount of time and resources. Also, it saves the complainant the trauma of having to come to court and testify about the incident.
The case of Nick Pitamama v Regina is authority for a one quarter to one third deduction in sentence when an early guilty plea is entered. This is at the discretion of the court. Defence submits that the Defendant should be given credit for the guilty plea which should lead to a reduction on the severity of his sentence.

(ii) No prior conviction. Counsel Palmer submitted that the prisoner had been a law-abiding citizen for 22 years.

(iii) Reconciliation. A deed of settlement was filed by Defence. It took place at the Henderson Police Station on 14 April 2023. It shows a reconciliation took place, for parties to keep the peace. A cash of $2200 was handed over to the victim’s family as a sign of respect and was accepted by the prisoner’s family. The victim’s father and the prisoner’s mother together with some of their family members and the police were in attendance.

24. Time spent in custody.

Counsel Palmer submitted that the Defendant was remanded in custody on 29 December 2022. Counsel says the prisoner has been in custody since that date. Defence submits that the period of time spent in custody should be taken into account when deciding an appropriate sentence. I agree and I will take that into account.

25. Counsel for the prosecutions also submitted that the prisoner has been in remand since 29 December 2022. In my reading of the court file, I noted that in one of the police witness statements (at the time was a probationer – police constable Carlos Tatagu Tigulu based at Henderson Police Station) stated that on Monday 26 December 2022 he was working day shift at Henderson Police Station when he was directed by Team 1 In Charge, I/C Sgt Claudia Harry to formally arrest a suspect namely Samuel Baneo for the alleged offence of Rape. He was then placed in Cell No. 2 whilst awaiting further dealings.
26. I note that the Record of Interview was conducted at 10:15hrs and ended at 11:43hrs at the CID Office, Henderson Police Station on 28 December 2022. If he was placed in custody after the Record of Interview, then the actual time he was taken into custody should be taken into consideration, that would be either 26 December 2022 when he was arrested and placed in Cell No.2 or from 28 December 2022 when he was interviewed by police.
27. I note the submission by Counsel Palmer on the principles of sentencing with reference to the case of R v Rivoqani.^[4]
28. I also take note of the submission by Counsel Palmer on comparative sentences and her discussions; the authorities counsel referred to and her submission distinguishing those authorities from the case now before me.
29. Counsel Palmer discussed the starting point for a non-contested case according to Billam is 5 years. That was expounded on in Pana v Regina, that where the victim is below the age of consent, it should be eight years, says Counsel Palmer.
30. In the final analysis, according to Counsel Palmer, the range of sentences imposed in the various cases discussed, was between four to twelve years imprisonment.
31. However, Counsel says, unlike the cases discussed, in the case now before me, as the prisoner and the victim were not related, there was no breach of trust. Furthermore, Counsel says, no form of physical injury was caused and no weapon or threat was used or exerted.

CONCLUSION

32. I thank both Counsels for their submissions.
33. I appreciate the notation from both Counsels’ submissions of their understanding and acknowledgement of the seriousness of the offence of rape and that whilst each offender is to be sentenced on the merits of each case, societal reactions, statistics such as that which can be gleaned from reports from the Law Reform Commission (LRC) and speeches on presentation of the Bill introducing any amendment to the Penal Code and so forth are relevant to turn one’s mind to.
34. Rape is a crime of violence and is to be abhorred in the strongest terms. This has to be reflected on sentencing. Palmer CJ puts this more succinctly in Rivoqani^[5]
    • “The offence of rape has always been regarded as a serious offence for it entails a violation of the personality and dignity of the victim affected and “is an offence of violence based on a selfish disregard for the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long-lasting harm to the victim”[1]. The fact of rape itself entails violence against the womanhood and sexuality of a woman, which is the most personal, private and special possession of any woman or girl that she can give away to the man she loves, in marriage for life. This is why rape in any of its forms is frowned against by society.”
35. I take into account the personal circumstances of the prisoner as submitted by Counsel Palmer.
    • The Defendant is 23 years old and is single.
    • He is from Malubu Village in Temotu Province.
    • He has 4 siblings; a brother and three sisters. The Defendant is the last-born child in his family.
    • He reached Form 3 level in his education.
    • Prior to his arrest, he resided at Henderson area, East Honiara with his older brother Samson Tavake.
    • Since March 2022 up until the time of his arrest, the Defendant was doing casual work for an Asian Company called CCECC that are responsible for the construction of stadium next to KGVI School.
    • His work involved making casings for the stadium posts. He was paid $1500 per fortnight.
36. I note the authorities referred to by both counsels relative to the principles of sentencing and the approach on sentencing as laid out by the Court of Appeal.
37. I am also mindful of the wishes of parliament and the reasonings behind the enactment of the Penal Code (Amendment) (Sexual Offences) Act 2016.
38. I consider the aggravating factors submitted by the prosecutions as well as the mitigating factors urged by counsel for the prisoner for my consideration. They are all relevant factors (aggravating and mitigating factors).
39. I have stated earlier that time spent in custody will be taken into account on sentence.
40. I find the following facts.
    • _{On 26 December} 2022, around 4 am and 5 am, the ^{defendant went into the} _{complainant’s house in} Henderson while sleeping with her ^{little brother, who}
    • was five years old at that time. The Victim's mother was at a party not far from their house then.
    • The defendant opened the main door and entered the house. He went to the
    • Victim's room, pulled up the mosquito net, and touched her. He pulled her out of the bed with his hand. He grabbed her shirt with his right hand and led her along a small road in front of the victim’s house.
    • The defendant pulled her to a small house in front of the victim’s house. When they arrived at the house, the defendant took her in and locked the door from inside.
    • The defendant told her to remove her clothes. She was wearing blue jeans and a red T-shirt at that time. The defendant touched her breast and her vagina. Then the defendant laid her down and climbed on top of her.
    • The defendant then told the Victim to suck his penis, but she refused. The defendant then forced his penis into the Victim’s mouth, but she refused. At that time, she was fully naked.
    • Then the defendant climbed onto the complainant and pushed his penis into her vagina. It was very painful for her. Then he had sexual intercourse with the Victim. After he ejaculated, she wore her clothes and went back to her house. When the Victim arrived home, she cried and told her mother about what the defendant had done to her.
41. This is a guilty plea. It is not contested. It involves a child of 16 at the time of offending.
42. I note the submissions by both counsels on the starting point of sentence. Counsel for the Prosecutions submitted a starting point of between 6 and 7 years imprisonment whereas Counsel for the prisoner discussed in general, the range in Billam which is 5 years and was expounded on by Pana v Regina which is 8 years.
43. In considering the offending and nature of the offending, I place the starting point at 8 years.

(i) CIRCUMSTANCES OF AGGRAVATION

44. I find the following circumstances of aggravation.
    1. Vulnerability of the victim;
    2. Premeditation (a planned act – waited for the mother to be away and when the child was asleep);
    3. Entered the house uninvited;
    4. It was at night;
    5. The child was asleep and was at rest when the prisoner disturbed her peace;
    6. The prisoner removed the child from her bed;
    7. You took her out of her room;
    8. You took her out of the house;
    9. You took her into the bush;
    10. The effect of what you did to the victim resultant in psychological harm being caused on the victim. On this particular circumstance of aggravation, I apply what the Court of Appeal says in the case of R v Liva [2017] SBCA 20 at paragraph 25 citing R v Bonuga [2014] SBCA 22:
        • 25. At [23] of Bonuga this Court said:
        • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
    11. The victim stated in the Victim Impact Statement (VIS) what and how she had felt like after the incident. I take note of the psychological harm caused to the victim when considering sentence,
        • “Not concentrate at school; feel shame and fear; do not forget that crime.”^[6]
        • “My future will not be good because I did not concentrate in my studies when those things happened to me.”^[7]
45. It is sad that the victim has been reduced to a condition less than what she was prior to the incident. She articulated that in the Victim Impact Statement when asked how she felt before the crime,
    • “Feel free for doing things;
    • Feel free for working around,
    • Concentrate at school.”^[8]
46. I consider that serious and will take that into account on sentence.
47. Taking into account the circumstances of aggravation as outlined above, I consider an appropriate uplift of 12 years making the head sentence to 20 years imprisonment.

(ii) MITIGATION

48. I now consider the mitigating factors.
49. I give allowance for the guilty plea entered (give credit for the guilty plea); I take into account that the prisoner was being remorseful. I deduct 3 years from the total sentence.
50. For other factors of mitigation which were highlighted in Counsel Palmer’s submissions on mitigation, I consider the circumstances personal to the prisoner in his favour. I also take into account the prisoner’s good record as having no prior conviction as well as the reconciliation being brokered between the prisoner’s and the victim’s family.
50. A further 12 months is accounted for all that and is to deducted from the total term imposed; making the end sentence to be 16 years in all.

SENTENCE

24. I sentence you to a total of 16 years imprisonment with time spent in custody to be deducted from the total sentence.

ORDERS OF THE COURT
I make the following orders:

1. Length of Sentence imposed: 16 years imprisonment
2. Pre-Sentence period in custody to be deducted (calculations start from 28 December 2022):
3. Time to be served in custody:

THE COURT
Hon. Justice Ronald Bei Talasasa Jr
PUISNE JUDGE

^[1] Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] Sahu v Regina [2012] SBHC 122

[3] Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
[4] R v Rivoqani [2018] SBHC 87; HCSI-CRC 186 of 2015 (26 July 2018)
[5] Ibid

^[6] Victim Impact Statement (VIS) filed 28 June 2023
^[7] Ibid (VIS)
^[8] Ibid (VIS)