Regina v Muma [2007] SBHC 142; HCSI-CRC 361 of 2007 (28 November 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 361 of 2007

REGINA

-v-

ALFRED MUMA

Date of Decision: 28th November 2007

Mr McColm for the Crown
Mr Southey for Alfred Muma

SENTENCING DECISION

Cameron PJ

1. The defendant has pleaded guilty to one charge of rape. The victim is his niece Julian Revah, who was 15 years old when the incident occurred.

2. He had been entrusted by family members to take his niece from where she had been living with her grandmother at Karivara Village, Nusa Simbo, back to her mother at Ranonga Island. This was on 2 April 2007.

3. The trip by canoe involved an overnight stop at Betolo Village, where the defendant lived. Instead of taking her to spend the night at the house of her aunt, as had previously been agreed between family members, he insisted she sleep at his house.

4. During the early hours of the morning on 3 April 2007 she was woken by the defendant, who was wearing no clothes. He told her to be quiet and take off her clothes. She did not wish to do so, but at the defendant’s insistence and because she was frightened and scared, she complied. He then climbed on top of her and had sexual intercourse with her. She did not want this to happen and it was without her consent.

5. The defendant then left the house, and Miss Revah remained inside for sometime because she did not know what to do. She then left the house and told the defendant she wished to go back to her grandmother’s. He agreed to take her, dropping her off by canoe and at the shore near the village of Karivara in the early hours of that same morning.

6. The victim promptly told one of her aunties what had happened. The defendant was arrested by police on 27 May 2007, and at that time declined to be interviewed. He was later interviewed on 8 June 2007, at which time he admitted the intercourse but said it was by consent.

7. The defendant was committed for trial on 21 August 2007, following a short form preliminary inquiry.

8. Following that, an indictment alleging two charges of rape, arising from the same incident, was filed. A trial date commencing 26 November 2007 was fixed. On that date, at what was to be the start of a defended trial, the defendant on arraignment pleaded guilty to a substituted indictment alleging one count of rape. The Crown Prosecutor then orally entered a nolle prosequi in respect of the second charge.

9. The defendant is an unemployed 41 year old man, who is married with 3 children aged between 5 and 12 years. As a result of this incident his wife has left him, taking with her the children.

10, He has one previous conviction entered in 2004 for common assault, for which he was fined $380. That involved his brother in law, who apparently attacked him first. In the circumstances I treat this defendant as in effect a first offender.

11. The offending is aggravated by the fact that as Ms Revah’s uncle he was entrusted with her care, which trust he grossly breached. It is also an aggravating feature that the victim was so young.

12. I take into account that there was no violence other than the act of forced sexual intercourse, and no suggestion of any pre-planning by the defendant.

13. While it is inevitable that Miss Revah would have been traumatised by the incident, there is no evidence of any specific injury or ongoing concerns about her ability to adjust to what has occurred. In fact I am told that she now lives in Gizo and is in a new relationship, which is a positive sign.

14. I accept that the defendant is sorry for what he has done, and has expressed that fact to the police and to Miss Revah. I also accept that he has cooperated with police and pleaded guilty at the earliest realistic stage, sparing the victim from re-living the events and saving Court time and expense. He is entitled to a credit for those factors.

15. I have been referred to a number of authorities on sentencing levels for this type of offending. While each case will depend on its own facts, the case of Regina v Dausina HCSI-CRC 7-07 bears a number of similarities to the present facts. There the Court imposed a sentence of three and a half years’ imprisonment on a father who had raped his 16 year old daughter, but had otherwise been of good character. As with the present case, there had been no additional violence. The breach of trust in Dausina’s case, where a father raped his daughter, was greater than in the present case.

16. Alfred Muma is now convicted of the offence of rape. I impose a term of 3 years’ imprisonment. It is understood that the defendant has already spent some 16 days in custody on remand for this offending. These 16 days include the two days 26 and 27 November 2007 that he has been in custody since his arraignment. I direct that the time the defendant has already spent in custody be treated as part of the time to be served in respect of the 3 years’ imprisonment.

THE COURT