Regina v Olofia [2008] SBHC 106; HCSI-CRC 548 of 2005 (15 December 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 548 of 2005

PATTERSON OLOFIA

v

REGINA

(Naqiolevu, J)

Date of Hearing: 8th February 2007
Date of Judgment: 15th December 2008

For Crown: Mr. R. Iomea
For Accused: Mr. T. Wallwork

SENTENCE

Naqiolevu J:

The accused was convicted of the offence of Rape contrary to Section 136 of the Penal Code on the 15th of December 2008.

The crown in its sentencing submission ask the court to consider some aggravating factors of the offence. The factors are the age of the victim and the accused. The act is a violation of her body, mind and spirit, and she was of a young age at the time. The crown cited the authority of R-v- Liagiau and Dohi, ([1]) where Ward CJ set out the aggravating factors of the offence of rape and one being the age of the victim.

The crown ask the court that the maximum penalty or the offence of rape is Life Imprisonment, however consider the court will decide every case on its own merits; the circumstances of the offence, as well as the mitigating and aggravating features. In this regard the crown cited the authority of Regina-v-Iroi ([2]) where Kabui J (as he then was) stated

"Rape attracts custodial sentence straight away. The only issue is how long such custodial sentence is to be in each case"

The crown ask the court to consider the aggravating features that it should take into account as the guideline set by the Court of Appeal in the case of ([3])R-v-

Liagiau and Dohi, where it stated the aggravating features, these are where violence are used, weapon is used to fight and wound the victim, rape is

repeated, rape carefully planned, previous conviction of the accused, further sexual indignities or perversion, victim is very young or very old. Crown counsel ask the court to consider an immediate custodial sentence of between 3 – 6 years.

Defence Submission

Counsel for the accused in response submit the accused was born in Malaita on the 24th of January 1950 and is now 59 years old. He was educated at Betikama High School in Honiara and completed standard 7, between 1963 and 1964. Between 1980 - 1981 he attended Emerald Agricultural College in Queensland Australia, where he completed a Livestock Management Diploma. Counsel submit the accused had been employed in government department until 1987 when he resigned to operate a taxi service in Honiara. He has now been employed with the Ministry of Health as a driver since 1989 to the present day.

Counsel submit the accused has been an exemplary employee, and never been a source of complaints or problem in the work place. The accused has held position of trust for a significant period of time, without there being any allegations of impropriety, in that he has been responsible for carrying cash, paying accounts and collecting mail in the course of his employment. He has at all times conducted himself with honesty.

Counsel submit the accused is a married man who resides with his family at White River, his wife is aged 40, and was educated to primary school level and a very low level of literacy, and is dependant on the accused in the conduct of her personal and family obligations.

Counsel submit the inordinate delay in the trial has operated to the prejudice of the accused. The accused was committed to trial on the 26th of October 2005, and the trial commenced on the 8th of February 2007. The trial has been adjourned on several occasion to enable the accused to locate a witness who may assist in his defence. Counsel submit that it is accepted that comparable cases may be used for guidance by the court, however each case must be considered on its own merits. Counsel submit that the range for the offence of rape is very broad as is comparatively the range for sexual offence attracting a maximum of life imprisonment. Counsel cited various authorities to support this proposition.

Counsel submit that the case falls at the lower end of the scale of offending in relation to sexual offences and the age of the accused, his family responsibilities, his exemplary character, the delay in proceedings and the manner in which the proceeding were conducted support the submission that the considerably total give rise to exceptional circumstances. Counsel further submit the personal circumstances of the accused, his age, exemplary character, family responsibility and history indicate he has excellent prospects for rehabilitation and minimal prospects of offending in the future. It is well settled principle of the common law that a person of senior years, with no prior convictions, is entitled to a significant sentencing discount upon those matters.

Conclusions

Clearly the offence of rape is serious and the court must take into consideration the circumstances of the offence, the nature of the offence and any aggravating features.

The court has taken into consideration the crown’s submission on an appropriate sentence to consider.

The court having considered the offence and the submission by the crown in relation to the aggravating features of the offending. The court having further considered the maximum penalty of the offence.

The court having further considered cases cited by the crown and the principles of law enunciated and in particular, the starting point of this type of offence.

The court having further considered the submission in mitigation by the counsel for the accused and the authorities cited.

Clearly in considering the Principal of Law it must balance what it consider to be the appropriate penalty to ensure justice is achieved.

The court has further taken into consideration the age of the accused which was submitted by counsel to be 59 years old. The court accepts the well settled Principle in Common Law that a person of senior years, with no previous convictions is entitled to a significant discount in these circumstances.

The court adopts the principle of law in the case of R-v-Hunter ([4]) where King CJ said at p103,

"A sentencing Judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him"

Exemplary Character

The court having considered the exemplary character of the accused which is clearly a mitigating factor. The accused has a good work record of his years in the workforce. The court accepts the authority in this jurisdiction that good work record maybe taken into account as a mitigating factor. See Berekame-v- DPP ([5]) Allan Campbell-v-R.

The accused is a first offender has had an unblemished record, a family man. In considering this factors and the court adopts the Principle of Law in the case of ([6])R-v-Hunter where King CJ said at p113.

"The cardinal rule is that while good character may operated to reduce a sentence which the facts of the crime would otherwise attract, bad character cannot increase it"

Further, in ([7])Ryan –v- The Queen Callinan J, said

"it is well settled that while bad character will not operate to increase a sentence, good character may operate to reduce the sentence, which the facts of the crime would otherwise attract. In some cases good character has even been held to be so significant a factor as to require the imposition of a non custodial penalty in lieu of a term of imprisonment".

The court is of the view that in a case of serious nature the court may consider an accuseds good character to be an exceptional circumstance in the imposition of an appropriate penalty.

The court in all circumstances having considered these factors is of the view that a non custodial penalty will be appropriate in this case.

The accused is hereby sentenced to a 2 years imprisonment suspended for 2 years.

THE COURT

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^[1] [1986] SBHC; [1985-86] SILR 214
^[2] (2004) SBHC 30, HC, CRC 250 of 2003
^[3] ibid
^[4] (1984) 36 SASR 101
^[5] (1986) 42 SASR III
^[6] (2001) 20 (CLR, 26)
^[7] (1982) 7 A Crim R, 437