Kaimanisi v Reginam [1996] SBCA 2; CA-CRAC 003 of 1995 (23 February 1996)

SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal No. 3 of 1995

Appeal from order of The High Court of Solomon Islands (Palmer J)

PETER SADE KAIMANISI

-v-

REGINAM

THE COURT: MURIA CJ. KAPI JA. WILLIAMS JA.

ADVOCATES:

Appellant: In Person
Respondent: F. Mwanesalua, DPP

DATE OF HEARING: 24th January 1996
DATE OF JUDGMENT: 23^rd February 1996

JUDGMENT

MURIA, CJ: This appellant was convicted of rape by the High Court and sentenced to 4 years 8 months imprisonment. He is to serve only 4 years of that sentence since he had already spent 8 months in custody awaiting his trial. He now appeals against his conviction and sentence. Initially he appealed against conviction only. In his written submissions, however; he also complained that the sentence imposed by the High Court is harsh and excessive.

At the beginning of the hearing of the appeal, the Court invited the learned Director of Public Prosecution to indicate if he had any objection to the Court granting leave to the appellant to pursue his appeal against sentence. In view of the fact that the appellant is appealing in person the Director of Public Prosecution did not object. The Court granted leave to the appellant to pursue his grounds of appeal against sentence.

Before proceeding to consider the grounds of appeal, it is convenient to set the brief facts in this case. At the time of the offence the victim was employed by "B-Cool" at the NPF Plaza. The appellant came to her place of work at about 8.30 pm and asked her to accompany him to look for a girl at the Anthony Saru Building which is next to the NPF Plaza. The victim agreed to go with him. They could not find the girl at the Anthony Saru Building and so the appellant told the victim that they should go further down the road near the Girl Guides Hut. Again there was no sign of the girl he was looking for there and so he told the victim that they should follow the road further up the road behind the Girl Guides Hut. They proceeded and upon coming to the bottom of the hill the victim became suspicious and began to take steps to escape from him. She ran up the hill but the appellant held her hands tightly. There was a struggle but the appellant overpowered the victim and had sex with her by force. I shall now turn to the appellant's grounds of appeal.

In his appeal against conviction, the appellant raised five (5) grounds. The first complaint is that the victim gave two statements to the police, the first one was on 26 March 1993 which was the date of the incident and during which the victim never said anything about the appellant having sexual intercourse with her. The second time was on 25 July 1993 when the victim mentioned about the appellant having sex with her. The victim explained in Court that the second statement was the correct one. As to her first statement to the police she explained that a lot of things she said were not included in that statement. The statement complained of by the appellant was not led in evidence at the trial and there was no cross examinations by defence Counsel on any inconsistency between the two statements. The victim's evidence was accepted by the trial judge. I do not find any basis for interfering with these findings.

The second ground of appeal that the prosecution did not lead in evidence the victim's clothings to verify her story that they were torn. The learned trial judge made reference to the absence of the victim's clothes. However, his Lordship accepted that the victim was telling the truth when she stated that her clothes were torn. The trial judge was entitled to come to this conclusion and I can find no basis for disturbing it.

In ground 3, the appellant suggested that the victim did not complain to the witness Catherine Vota'a that the appellant had sexual intercourse with her and that she only complained about pulling her. My reading of the evidence does not support the appellant's contention. I have read the transcript of the evidence and I find that she complained of sexual intercourse. I see no merit in this ground either.

The complaint in ground 4 of the appeal relates to the finding of sperm in the vagina. The suggestion by the appellant is that the spermatozoa found in her vagina were from her boy friend. I note from the trial judge's finding that His Lordship accepted the evidence that the victim had not had sex with any other man prior to the incident on 26 March 1993 apart from the times when she was living with her boy friend in February 1993. It was also accepted that the victim's boy friend returned to Tangarare in February to teach. The conclusion reached by the trial judge was that the appellant had sexual intercourse with the victim on 26 March 1993 and that there was no other person who had sex with the victim at the time but that it was the appellant. The reasoning and finding reached by His Lordship, were clearly open to him on the evidence and I would not interfere with them.

The point raised in ground 5 regarding a custom inquiry at Duidui Village whereby it was said that the victim said that the appellant did not have sexual intercourse with her is a matter that had never been raised at the trial and had never been part of the evidence in this case. This ground has no merit also and is rejected.

The result is that the appeal against conviction is dismissed.

As to the appeal against sentence, the only ground advanced is that the sentence is harsh and excessive. The principles governing the appellate court's jurisdiction to review sentence imposed by a trial judge are well settled in this jurisdiction: see Saukoroa -v- R (1983) SILR 275 and Berekame -v- DPP (1985-1986) SILR 272. The principle laid down in those cases is that the appellate court will not interfere with the sentence imposed by the trial judge in the exercise of his discretion unless it is shown to be manifestly excessive or manifestly inadequate either because the judge has acted on wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. The question therefore is not whether this court would have imposed a different sentence to the one given but rather whether there was an error in the exercise of the sentencing discretion in the court below.

It must be pointed out that rape is a crime of violence and as such there must be some element of deterrence in the sentence passed for such a crime. Those who are charged with rape and convicted must expect custodial sentence. The severity of such sentence will depend on the seriousness and the nature of the offence.

The Courts are obliged to have regard to and to uphold the fundamental principles which we embody under our supreme law, the Constitution, such principles as respect for human dignity as well as enhancing that dignity, see Preamble to the Constitution. Our Society has survived because if respect for such principles and those who defy such harmonious rules will be met with sanctions imposed by the society. That power of the society to impose sanctions has been shared with the Courts who must exercise it on behalf of the society and to impose sanction on those who violate principles which are designed for the respect of each other's human dignity and the harmony of society as a whole. Rape is a crime of violence and must be condemned as a violent disregard for such principles and one that must be regarded as anti-social disrespectful for each other's dignity and provide breeding ground for social disharmony. With those principles in mind, the Courts are entitled to take a very stern view of the crime of rape and to reflect that in the type of sentences they imposed.

In the present case the appellant was sentenced to 4 years 8 months imprisonment. There was force used upon the victim although I would not say, on reading the record of evidence, that the victim was likely to suffered severe devastating effect as a result of that. I also note there were no other injuries found in the genitalia or elsewhere apart from those described by the victim and that she was not of tender age. Nevertheless the victim was tricked by the appellant into looking for a girl that night in question and was forced to have sex with the appellant. He showed a complete disregard for the victim's dignity and persisted until he succeeded in having sexual intercourse with her without her consent.

The learned trial judge took into account the appellant previous sentence for robbery which is another crime of violence. I share His Lordship's concern as expressed in his reasons for sentence.

Before I can disturb the sentence of 4 years 8 months imposed by the learned trial judge, it must be demonstrated that it was excessive in the circumstances of this case bearing in mind the principles laid down in Saukoroa -v- R (supra). I have considered the matter carefully and I concluded that in the present case, a sentence of 4 years 8 months is on the generous side. I can only say that the question of delay must have weighed heavily in the learned trial judge's mind in imposing a sentence of only 4 years and 8 months.

In the circumstances of this case, the sentence imposed by the learned trial judge is not excessive. I do not find any error in the exercise of His Lordship's discretion in sentencing the appellant. I accordingly dismiss the appeal against sentence.

KAPI JA: I have read the draft judgements prepared by the Chief Justice and Williams JA and I agree with their Lordships' reasons and conclusion and I have nothing further to add.

JUDGMENT – WILLIAMS JA

Judgment delivered 23/2/1996

I have heard the advantage of reading the reasons for judgment prepared by the Chief Justice and I agree with them. There is but one matter on which I wish to make some further comment.

There was no dispute at the trial that there had been some contact of a sexual nature between the complainant girl and the appellant. The latter in evidence admitted that he wished to have intercourse with the girl and with that in mind he removed her clothing and some of his own. After that there was contact between his penis and her vagina but he says that penetration was not effected primarily because he did not have an erection. His evidence was that the complainant consented to all that occurred.

At the trial the two critical issues were consent and penetration. The learned Chief Justice had said all that needs to be said on the latter issue. It is only on the issue of consent that I wish to make some observations.

The incident occurred on 26 March 1993. Later that night the complainant attended at the Central Police Station and provided a statement to a policewoman. Apparently at that time the statement as recorded by the policewoman did not contain a formal complain of rape. I find that rather surprising because the complainant was examined at the government hospital on 27 March 1993 on the basis there was an "alleged rape on the night of 26 March 1993". The medical examination was clearly designed to determine whether the complainant had recently had sexual intercourse, and whether there were any marks on her body which might have been suggestive of rape.

Perhaps what is of greatest significance for present purposes is that under cross-examination the complainant conceded that she did not initially make a complaint of rape to the police because she "felt so ashamed". She was apparently concerned that relatives might find out about the matter and was concerned that that would increase her shame.

The appellant relies on inconsistencies between the accounts of events given by the complainant as supporting his submission that his conviction should be quashed. Inconsistencies in a complainant's account of relevant events are always a material consideration for the tribunal of fact, and that is particularly so in a rape case where consent is in issue.

Here, though the complainant was apparently prepared to concede some inconsistency with respect to her complaints, the evidence as a whole does not reveal anything so serious as to warrant reversing the conviction.

I agree with all that has been said by the learned Chief Justice with respect to the appeal against conviction and the application for leave to appeal against sentencing.

Williams JA.
Court of Appeal

19/2/1996