Regina v Dausina [2007] SBHC 139; HCSI-CRC 7 of 2007 (16 November 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 7 of 2007

REGINA

v.

JOHN DAUSINA

(Palmer CJ.)

Date of Hearing: 12th November 2007
Date of Sentence: 16th November 2007

L. Ruschena for the Crown
K. Averre for the Defendant

Palmer CJ.:

The defendant, John Dausina ("John") was charged with one count of rape and one count of incest. On arraignment the incest charge was withdrawn. He entered a guilty plea and I heard mitigation on his behalf.

The victim was about 16 years old at the time of commission of offence. She is the sixth child of the defendant in a family of eight children.

She came to Honiara to work as a baby sitter for Margaret Hama ("Margaret"), who is an aunty. The victim had only been in Honiara for about a week before this incident happened.

At the time of the incident John who was under the influence of drink had been arguing with Margaret as a result of which he left the house and took the victim with him. It was while they were on their way to the house of Alick Dausina ("Alick"), one of the children of John, that the offence was committed.

While he did not use violence or any weapon against her, he did threaten her and used such force as was necessary to overpower her before raping her. Despite and in spite of her pleas and refusal, he did not listen. After raping her they continued on to Alick’s house arriving quite late at night.

The rape was reported soon after on the next day 21st October 2006 to Police and defendant arrested shortly thereafter. He has been in custody since.

John admitted the offence from the outset to police in his interview on 22nd November 2006. He entered a guilty plea at the first opportunity when arraigned in court. Due credit must be given for saving court time and expense as well as saving unnecessary embarrassment and discomfort to the victim had a trial been held.

John has one previous conviction dated 5th October 1998 for being drunk and disorderly. He was convicted and fined $20.00. This previous conviction can be ignored as it is not directly related to this offence. I treat him therefore for purposes of sentence as a first offender.

His family circumstances have been referred to in mitigation. No doubt as a family man and main bread winner in his family they have been adversely affected and shocked by this crime. While I take that factor into account it must be balanced with the need to ensure that an appropriate sentence is imposed so that the elements of retribution, deterrence, protection or prevention and rehabilitation are not overlooked in the process. His subsequent incarceration is but a follow on from that crime. The offence of rape is a very serious offence and carries a maximum sentence of life imprisonment.

I take into account that you are sorry for what you have done. You attributed the commission of the offence to alcohol but that is hardly an excuse for nobody forced you to get drunk. If alcohol is your downfall, then you need to get rid of it from your life so that you do not fall into the same trap or mistake again. So being drunk does not help you. Drunkenness has always been viewed by the courts as an aggravating factor.

I accept explanations from your Counsel that there was no pre-planning or motive in the commission of the offence. That is consistent with the facts of the case, that it appeared to have been more opportunistic than being pre-planned. You happened to be at an isolated part of the road, at night time with your daughter and because you were drunk your inhibitions were low and you seized upon the opportunity to rape your daughter. There is nothing to suggest that you planned from the outset to rape your daughter.

On the other hand these mitigating factors must be balanced with the fact that you were in a clear position of trust and responsibility as a father but failed in that. Such a relationship is one of the most endearing and closest of any human relationships as recognised by custom, religion and the law. As a father you have a duty not only to provide and care for your child but to protect her. Instead you have not only failed in your duty but gone further to violate her sexually leaving a scar and stigma in her life.

The age of the victim is also an aggravating factor in this case. At 16, she is a young girl of tender age. Children must be protected by the courts and the message must be made clear, that those who commit this type of crime must expect to go to prison.

While no serious injury was caused, your persistence caused much discomfort and pain to the victim as a result of the offence, not to mention the emotional, mental and spiritual disturbance and trauma that may have resulted from this violation.

Having said that I accept that the time spent in prison so far has given you opportunity to reflect on your behaviour and to reform your ways.

Sentences for rape range from about 3 years to 6 years. A number of cases have been referred to for my consideration. These included the case of R. v. Ligiau and Dori[1], ("Ligiau’s case"). The defendants in that case were each sentenced to six years and 5 years respectively for rape and attempted rape. The victims however were much younger, being 12 years and 10 years old. The victim in this case is 16 years old.

Ligiau’s case is similar to this case as well in that although threats were issued no actual violence was used. The defendants also admitted the offences on the very next day after the incident and maintained their admissions right through to trial with guilty pleas. The presiding Judge, Ward CJ, not only gave full discount for the guilty pleas but also accepted that this demonstrated genuine contrition and remorse. He also gave credit to them as first offenders.

In Koraua and Kaitira v. R[2] the appellants were convicted for attempted rape and sentenced each to 4 and 3 ½ years respectively. In both instances some element of force was used.

In R. v. John Auwahau[3] the defendant was sentenced to 4½ years for rape. He was given the benefit of a guilty plea although he changed his plea half way along the trial. He was a first offender and no other force than what was necessary to commit the offence was used. The defendant had been accompanied by the victim, a young woman to travel to another island to collect some food on a boat. On the way he raped her while out at sea. Despite her pleas and refusals to avoid the defendant including jumping into the sea he did not desist and raped her.

In Regina v. Teikamata [4] the defendant was convicted after a trial and sentenced to six years for rape. The victim was a visitor to the house he was living in, a student and younger than him and that severe bleeding was caused to the victim as a result of the rape. He had a previous conviction of a sexual nature and had previously been sentenced to three months imprisonment.

In Regina v. Su’umania[5], defendant was also convicted after a trial for rape and sentenced to five years imprisonment. His Lordship Kabui J. found that the defendant had tricked the victim, a young school girl into having sex with him to avoid being arrested for trespassing into the Botanical gardens.

In Regina v. John Iroi[6] the defendant was sentenced to four years after a trial for rape. He had accosted the victim on her way to a shop and raped her beside a drain. He was drunk at the time of the offence.

All those cases referred to and many others not cited indicate clearly that each case has to be dealt with on its own facts. Your guilty plea, remorse, that you are a first offender, that it occurred more on the spur of the moment than through any pre-planning or motive and that no violence, weapon or serious injury was caused to the victim are all significant for purposes of calculating sentence. Taking all these into account and balancing with the fact that you were drunk, in a position of trust and responsibility, the age difference (that you were 49 years at the time of commission of offence) and that you had threatened her to commit the offence, it is my respectful view that a sentence of three and a half years is appropriate in your case. I convict you for the offence of rape and impose sentence of three and a half years. The period spent in custody is to be taken into account.

Sentence:

1. Convict John Dausina of rape.
   
2. Impose sentence of 3 ½ years.
   
3. Period spent in custody is to be taken into account.
   

The Court.

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^[1] 1985/1986 SILR 214 per Ward CJ
^[2] 1988/89 SILR, 4
^[3] HCSI-CRC 18-93 (unreported), 6^th April 1993
^[4] [2006] SBHC 76; HCSI-CRC 470-04 (
^[5] [2004] SBHC 78; HCSI-CRC 313-03 (1^st November 2004)
^[6] [2004] SBHC 31; HCSI-CRC 150-03 (7 April 2004)