Regina v Arurumae [2007] SBHC 14; HCSI-CRC 330 of 2005 (18 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 330 of 2005

REGINA

-V-

ARURUMAE

(Naqiolevu, J)

Date of Hearing: 22nd February 2007, 2nd March 2007
Date of Sentence: 18th April 2007

For Crown: Mr. Fitzpatrick
For Accused: Mr. A. Mane

SENTENCE

Naqiolevu J: The accused was charged with the offence of Rape contrary to Section 136 of the Penal CODE. The accused had initially pleaded not guilty to the offence, but later proceed to change his plea but denied certain facts of the case essential to the charge. The crown maintain the facts are critical to the charge. The accused then agreed with the crown with the facts, as presented which forms the basis of the charge.

FACTS

The incident took place on the 10th of April 2005 on a Sunday. The victim who was 18 years of age was walking that morning from her home village of Gwaoma, West Kwara’ae on the island of Malaita to a neighbouring village to attend church service, after the service she decided to walk back along the main road to her village. Near her village she became aware of a man behind her, whereupon she was grabbed from behind, lifted up, a hand was placed across her mouth and was taken a short distance to the bush. The victim was threatened with a knife and told if she refused to have sex she would be killed. The victim struggled with and eventually her skirt and shirt were taken off and she was completely naked. The victim’s head was banged onto the ground and made to face the ground, her legs lifted and she struggled and refuses to have sex with him. The victim was eventually forced to agree to sex, after being warned that all her clothes would be destroyed if she did not agree, and she would have to go home naked.

The victim was placed on the ground on her back, the accused took off his trousers, pushed her legs apart and pushed his penis inside her vagina. He moved his penis in and out and until just before ejaculation, he stood

up, made her sit down in front of him and using the same knife threatened to kill her, held the knife to her neck and forced her to suck his penis until he ejaculated in her mouth, she was also made to swallow his semen. The accused then walked away and the victim was able to scream whereupon two women having heard the cries went to see her. The accused was seen by one of the witness about 4 meters from the victim and recognized him, when he then ran off.

The victim complained of being raped straight away and blood was seen on her skirt and she was observed to be wearing only a bra.

The victim was taken to her house and later medically examined and found to have vaginal injuries which in the Doctor’s opinion was consistent with forced penetration.

The matter was reported to the police who investigated and found the accused in his village. He was taken to the police station and interviewed under caution. He denied holding the victim or picking her up or having sex with her. He said she cried when he asked her to be his friend. The accused also said he was forced to follow the victim by a person named Chris who told him to have sex with her. Police spoke to Chris who denied everything said by the accused.

MITIGATION

Counsel for the accused in a written submission outlined the Background of the accused, his Personal History, the mitigating factors and suggested on an appropriate sentence.

Counsel in relation to the background of the accused outlined the circumstances relating to the incident and the point at which the accused committed the rape on the victim.

The accused is 23 years old and married with three children. He has little education and no formal employment. The accused came from a family of seven and the second last, he has lived in Malaita all his life and very little exposure. Has no previous conviction.

The accused counsel submit plead guilty at the first instance, he was co-operative with the police and custom reconciliation has also taken place and compensation was paid in the amount of $200 to the victim’s uncle, a pig and red money.

The accused is remorseful for what he did and undertake, not to commit any offence again. He is a young man with lots of room for rehabilitation. The offence did not involve significant planning but from pressure, unfortunate swearing, and stupidity. In part of the society where he come from swearing to another to do or carry out something, is treated as very insulting.

Counsel ask for leniency in sentencing and punishment, given the mitigating circumstances and the aggravating features.

Counsel ask the court to consider several authorities in deciding an appropriate sentence, which is very helpful indeed.

Counsel submit to the court that efforts to rehabilitate an offender should always be a consideration in the sentencing process. He submit that the aim to send the defendant into custody is not revenge or to punish him but to remind him of two things. One to satisfy the expectation of society and that the accused attend rehabilitation related service provided by prison. Counsel ask the court to consider a sentence of 3 years.

RAPE SENTENCE

The offence of rape is a serious offence and attracts a maximum term of life imprisonment depending on the aggravating circumstances, the age of the victim and whether the crime was preplanned.

Courts in this jurisdiction have imposed sentence of varying degree and they range from 10 years for the most serious and 3 years and 18 months, for less serious circumstances.

Ward CJ in (^[1]) in Regina-v-Ligiau and Dori, said

"Rape is an extremely serious offence. It is an offence of violence based on selfish disregard of the rights and feelings of another and is likely to cause more harm to the victim. The problem in sentencing for such 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 other serious crime".

I consider the circumstance in this case is serious, the accused used a knife to threaten the victim before raping her. These are clearly aggravating features however to proceed to commit this further indignity and act of perversion must clearly be the most aggravating feature. The accused not only violate her rights as a woman but subject her to further indignity by threatening her with a knife, to perform the act of perversion.

Clearly this act can only be described as serious and degrading to the young victim.

SENTENCE PRINCIPLE

The court has taken into account the accused plea of guilty, he is a first offender and his act of customary reconciliation. This clearly need to be taken into account in considering an appropriate sentence. In the case of R(^[2])-v-Ligiau and Doris SILR 1985/86 214 in which two accused were charged for offences of rape and attempted rape, his Honour, Chief Justice Ward adopted the views of Lord Lane CJ in the case of R-v-Billam (1986) 1 WLR 349 as an indication of what the current practice should be in passing sentence on rape cases. I quote the relevant page:

"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".

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

I am of the view having regard to sentencing principle that it would be appropriate to consider a head sentence of 8 years given the serious circumstance of the case. However after discounting the age of the accused, the plea of guilty, which has saved the courts time, and the harrowing experience of having to put the victim through a trial, the custom reconciliation which has taken place.

I consider having taken these factors into account and balancing them with the serious nature of the offence and the need to send a clear message to the community that the court will not tolerate such violation of a woman’s dignity. Women must be protected and given the respect they deserve and they cannot be treated as a sex object simply for the satisfaction of a man’s ego.

ORDER

THE COURT IN ALL CIRCUMSTANCE CONVICT THE ACCUSED AS CHARGED AND SENTENCE HIM TO 5 YEARS IMPRISONMENT.

THE COURT

---

^[1] [1985/86] SILR 214, said at Page 214 and 215
^[2] Ibid