1985-1986 SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 35 of 1986

R

v

LIGIAU and DORI

High Court of Solomon Islands
(Ward C.J.)
Criminal Case No. 35 of 1986

3 September 1986 at Honiara
Sentence 3 September 1986

Rape - sentence - guidelines - Police - delay in prosecuting case.

Facts:

The accused pleaded guilty to the rape of a 12 year old girl and to the attempted rape of a girl aged 10 years 4 months, respectively. Both used no more force than was necessary to commit the offences, but both threatened to kill their victims unless they submitted and so frightened them that further violence was unnecessary.

Held:

1. In sentencing for rape, mitigation personal to the contrite offender must have less effect than in most other serious crimes because of the serious and long lasting harm to the victim.

2. In this case the extremely young age of the victims was a serious aggravating factor. Although no more force than necessary was used, the threats to kill made further violence unnecessary. The case against the second accused was distinguishable from that of the first only because it was an attempt only. Finally, the guilty pleas were given particular allowance as they not only showed remorse and contrition by the accused, but also spared the young victims from testifying and reliving the experience. (Guidelines stated in R. v. Billam (1986) 1 WLR 349 set forth and followed).

Accordingly, the first accused was sentenced to six years imprisonment for rape and the second accused to five years imprisonment for attempted rape.

Cases considered:

R. v. Billam (1986) 1 WLR 349

Francis Mwanesalua for Regina
Kenneth Brown for both Accused

Ward CJ: Rape is an extremely serious offence. It is an offence of violence based on a selfish disregard of 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.

The problem in sentencing for such an offence is that, when the court is faced with a contrite offender, too often mitigating factors are allowed to push consideration of the victim and the offence itself into the background. In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.

In considering the appropriate sentence for this offence, I adopt the views of Lord Lane CJ in R. v. Billam (1986) 1 WLR 349.

In that case, he suggests, as an indication of what current practice ought to be;

“For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.

Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness.

Where anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.”

In your case, the extremely young age of the victims, one 12 years 2 months and the other 10 years 4 months, is a very serious aggravating feature.

I accept, as has been urged, that you both used no more force than was necessary but I must take notice of the fact that a threat to kill your victim unless she submits made by a much older man to such a young child will so frighten her that further violence is unlikely to be necessary.

In the case of the second accused, I also accept that this was an attempt only - although the medical examination of the girl shows it was a determined one. You failed to achieve full penetration because the girl was too small but I give credit for the fact that, as a result, you did not force her the more to overcome that. However there is no other way your case can be distinguished from that of the first accused.

In such cases as this, a plea of guilty will reduce the sentence considerably. It has long been accepted that, by so doing, the accused not only shows remorse and contrition but saves the victim having to go in the witnessbox and relive such a frightening experience. With such young victims, that is especially important. I also accept you have maintained those admissions despite the realisation that, after a period of more than a year, such children may well have found difficulty in giving an accurate account of such an incident. As a result I make particular allowance for your plea of guilty.

I treat you both as first offenders and allow for the personal circumstances outlined by your counsel but those, as I have said, have little bearing on sentence in a case of this nature.

Accused 1 - rape - 6 years imprisonment

Accused 2 - attempted rape - 5 years imprisonment

Before passing from this case, I must add the following comment:

This offence was committed on 30th July 1985. By the end of the next day, one of the accused had made a full admission which accurately reflected the account given by the victim. By the following day, the other accused had made a similar admission.

Both were bailed by the police and, apart from an identification parade in January 1986, nothing seems to have happened until the papers were sent to the Director of Public Prosecutions on 29th April 1986.

Delays of such a magnitude are serious. When the case delayed is an offence of this nature, it is appalling.

In support of the police, the Director of Public Prosecutions points out one of the accused returned to Malaita and also that the police are undermanned. Both those factors may well be true but there was no mystery about the whereabouts of the accused in Malaita and I can only say that, when the police are deciding how to deploy even limited manpower, it is difficult to conceive a case more demanding of priority than this.

Such delay cannot be in the interests of justice and I would ask the Director of Public Prosecutions and the Commissioner of Police to consider why this occurred and how a similar situation can be avoided in future.