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R v Vaike [2023] SBHC 134; HCSI-CRC 287 of 2023 (29 September 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 287 of 2023

REX

V

BRIAN VAIKE

Date of Hearing: 27 September 2023 (Sitting at Lata Court House)
Date of Sentence: 29 September 2023

Ms Mutukera and Mr Zoze for the Defendant
Mr Houa for the Defendant

Keniapisia; PJ

Sentence

Introduction

1. Mr Brian Vaike is charged with three (3) counts of sexual intercourse with a child under 18 years (who is 15 years) by inserting his penis into her vagina. Mr Vaike was in a position of trust to the child. The 3 separate charges appeared as Counts 1, 2 and 3 on the information filed on 14/06/2023. The 3 charges against Mr Vaike are all contrary to Section 140 (1) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. I will refer to the amended Act as the 2016 Act.

Guilty plea premised on agreed facts

2. Mr Vaike was arraigned and pleaded guilty to all 3 charges, premised on summary of agreed facts filed on 27/09/2023. I will adopt the agreed facts in full as follows:-
   1. The accused is Mr Brian Vaike and he was 28 years of age at time of offending.
   2. He is from Tanibili village, Utupua Island, Temotu Province.
   3. The Complainant is Ms Jan Sila, 15 years of age at time of offending and also from Tanibili village.
   4. The accused and the complainant are related as second cousins.
   5. Before the alleged sexual offending, sometimes in 2019 the accused and the complainant got into a sexual or intimate relationship.
   6. On the 23^rd January 2020, Brian Vaike (accused) came and asked Jan Sila (complainant) that he wanted to have sex with her.
   7. The Complainant agreed and they both went to Tanibili rest house and have sexual intercourse. After that, they went back to their respective houses.
   8. On the second occasion between 24^th January 2020 and 9^th February 2020, the accused and the complainant again went to Tanibili bush and have sexual intercourse there.
   9. After having sexual intercourse, they went back to their respective residences at Tanibili village.
   10. On the third occasion, 24^th June 2020, the accused and the complainant have sexual intercourse at Tanibili for the third time.
   11. The accused paid customary fine on 3 occasions, first a fine of $1000.00, second fine of $2000.00, the third fine was $350.00 and the fourth was $750.00. A total of $4100, piglet and canoe were also given.
   12. Police was informed of the incident by the parents of the complainant and the accused was arrested and charged accordingly.

Starting point sentence and aggravating features

3. Courts must determine the appropriate sentence. Maximum penalty available for this offence is 15 years imprisonment. I have power to give a lesser imprisonment term. There must be a custodial sentence. Court must take heed of the protection of women and girls Parliament intended through the reform in the 2016 Act. Many precedents were given to me. Precedents gave me guidance. I am grateful to counsel. However, Court of Appeal sentencing guidelines and the merits of the case weigh paramount to the guidance from the comparative sentencing precedents.
4. According to Court of Appeal sentencing guidelines, the first thing is to set the starting point sentence. Counsel differ on the starting point sentence. Crown submits it should be 8 years. Defence suggest 5 years. I will settle with 5 years because although there is desecration of a child under 18 years, I feel that this offending is at a lower scale of this kind of sexual offending. No violence or weapon was involved. The child is a teenager and not a toddler like in Pana. And the teenager child was a willing participant grounded on existing intimate sexual relationship.
5. Court will uplift the 5 years to 11 years because of the presence of 6 serious aggravating features. The aggravating features are – young age of the victim (15 years teenage girl); age disparity (victim 15 and defendant 28, age difference of 13); breach of positon of trust (accused is second cousin of the complainant); premediated act (grounded on sexual intimacy relationship); persistent/repeated offending on 3 separate occasions and psychological harm (must always take judicial notice of despite lack of expert evidence). Where there is sexual intimacy, psychological harm is doubtful.

Mitigating factors

6. There are 5 mitigating factors that will work in favour of the defendant to reduce the sentence. I will examine each to justify the reduction to the sentence:-
   1. Early guilty plea and remorse – this has two benefits. First it will save the victim from the trauma of having to recount her ordeal in the witness box. And it shows Mr Vaike’s genuine remorse. Second it saves court’s time and resources to vacate trial. For these two benefits I will deduct 3 years.
   2. First time offender with no previous conviction or clean record – I give credit for this by deducting 1 year.
   3. Time spend in custody – 26^th October 2021 to March 2022 (5 months).
   4. Prospect for rehabilitation – the defendant is a young man. He is currently 30 years. He was in an intimate sexual relationship with Sila. He did not realise that it is unlawful to have sexual intercourse with a child under 18 years old. There could have been marriage had there been agreement on the side of Sila’s parent. I imply this base on submission from defence counsel and in view of agreed fact 2 (v) above. Mr Vaike as a young man still has “reasonable expectation of life”, ahead of him and should be assisted to rehabilitate or reform in prison and go back to the community to carry on with his “reasonable expectation of life”. He was remorseful. He paid compensation. All these should make Mr Vaike a better and reformed person after release. I will deduct 3 years.
   5. Personal Circumstance – circumstances such as being single, farmer and look after his aging parent were drawn to my attention. I can only take less consideration of personal circumstances. I will deduct 7 months nevertheless.

Conclusion and Orders

7. Court will enter 3 convictions in respect of the 3 charges owing to Mr Vaike’s guilty plea to all 3 counts. Courts will sentence Mr Vaike to 3 years imprisonment. These 3 years will equally apply to each of the 3 counts (being identical charges) making a total of 9 years. However, I will make the 3 years separate sentences to run concurrently. If I say run consecutively, it will be unreasonable excessive at 9 years. That will defeat the purpose of rehabilitation or reform and Mr Vaike going back to his community to utilize his life’s potential after release. He will turn 39 years old at the time of release, should the 9 years sentence be made to run consecutively.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE