Regina v Waiapuru [2008] SBHC 40; HCSI-CRC 497 of 2006 (22 August 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 497 of 2006

REGINA

-V-

BENJAMIN WAIAPURU

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 497 of 2006

Date of Hearing: 19 August 2008
Date of Ruling: 22 August 2008

Ms. Kleinig for the Crown
Mr. Nori for the Accused

JUDGMENT AND SENTENCE

Mwanesalua, J:

The accused is Benjamin Waiapuru, an adult. He was charged with one count of rape, under S. 137 of the Penal Code. He pleaded guilty to the offence on arraignment on 19 August 2008. He was convicted by the court upon his own guilty plea accordingly. The victim is Veronika Dioko, a girl aged about 16 years.

On 20 October 2006 between 3 am and 4 am, the accused entered a taxi outside the Night Club at Twin Towers at Town Ground with Charles Damola, Betty Osoe and the victim. The victim and the accused were unknown to each other prior to that night. They drove together in the taxi in an easterly direction. The women asked the accused to buy them food and he agreed. The taxi stopped at the Bahai area and the accused went out of the taxi and returned with 6 cans of beer. The taxi then drove to Kukum field behind the Kukum Police Station. The women were reluctant to get out of the taxi, but Charles persuaded to them do so. They all sat together under the rain trees (see photographs 1 and 2 of the album of photographs).

Sometime later the victim left her companions and walked some distance away to urinate behind another tree (see photographs 4 and 5). The accused followed her, and before she was able to pull up her pants, he tried to persuade her to engage in oral sex with him, to which the victim declined. The accused then pushed her down to the ground facing up and pushed his erected penis into her vagina. She quickly pushed the accused off her and escaped running around the tree, with the accused chasing her. He offered

to pay her money if she would allow him to "release" inside her. She ran in the direction of the road that led to Kukum Police Station. She met two police officers – PC Adifaka and PC Havimana at the beetlenut stall at the main road. These police officers observed her to be panicked and frightened in appearance; her jean skirt was not warn properly; and she moved as if something was obstructing between her legs. She immediately made a complaint against the accused for rape. The accused walked up to PC
Adifaka and PC Havimana. They asked him what was going on, and he replied, "No eniting nomore ia – hem girl friend blong mi nomore ia".

PC Adifaka and PC Havimana took the accused to Kukum Police Station to await transport to Central Police Station. While at Police Station, the police observed that his jeans zip was undone; a pair of underpants was in his pocket; and he had slurred speech, poor balance and that his breath smelled strongly of liquor. He was later transported to Central Police station. On the next day, he was interviewed under caution and again on another occasion. He admitted having sexual intercourse with the victim. On the afternoon of 20 October 2006, Dr. T. Sale examined the victim at the National Referral Hospital in Honiara. The doctor observed an area of reddish discolouration on the inferior lip of the cervix. A high vaginal swab was taken, and no sperm was seen. The accused remained in custody after his arrest until he was granted bail by the Central Magistrate Court on 16 November 2006. In total, he spent 27 days in custody in relation to this case.

The accused made an unsworn statement during mitigation. The essence of that statement is that he admitted that the offence he committed upon the victim is forbidden and wrong in law and in his custom. His culture does recognize the status of and respect for women in the community. He is sorry and ashamed of the unlawful act he committed on the victim. His own relatives condemned him for his action. He is considering making compensation to the victim and her relatives. It was his drunkenness and the environment which prevailed at the scene of the offence that night which induced him to commit the offence. He vowed to refrain from going to Night Clubs and promised that he would not re-offend in the future.

Mr. Nori’s Plea in mitigation on behalf of the accused is that: the accused is 35 years old, single and pays school fees for his two younger brothers at school; pleaded guilty on arraignment; no aggravating factors in his offence; no previous convictions; both the victim and the accused were drunk; and that the accused needed rehabilitation.

Further, Mr. Nori urged the court to consider the following matters in addition to the mitigating factors to arrive at a just level of sentence for the offence: that the accused went to the club to have a few beers and not to look for

women; that it was Charles who stopped the taxi and asked the accused to join him and the two women to pay beer and meet the taxi fare; that the accused gave the victim $50.00 to buy food; that the accused did not know that the women refused to get out of the taxi at the scene; that they arrived at the scene in pair of two men and two women while the accused was drunk; and that the accused did not know that the victim went to the dark spot behind the tree to urinate. These points, Mr Nori submits, led the accused to assume that each pair would finally engage in sexual intercourse that night. Mr. Nori therefore submits that in the circumstances, the highest level of custodial sentence which should be imposed is 2 years, which in turn, be partly suspended or otherwise wholly suspended.

It is the view of this court, that the intention of the accused before sentence that he would compensate the victim and her relatives for sexually assaulting her, is likely to be forgotten after sentence is imposed on him. Such intention cannot be regarded as an offer to make compensation. It is no more than the expression of a pious hope before sentence that compensation will be made. The custom of some communities in Solomon Islands is that such compensation is made soon after such assault is made and heard by relatives. This, among other thing, rids ill-feelings, cools anger and normalizes relationships.

There are facts which show that the accused was drunk. His advocate told the court that the accused was drunk when he and his companions arrived at the scene. Then the accused was observed to have slurred speech, poor balance and strong smell of liquor at the Kukum Police Station after he committed the offence. There is nothing to show that the victim was also drunk. On the contrary, she walked to the dark spot behind a tree to urinate. She refused to have oral sex with the accused when he approached her behind the tree. She pushed the accused off her when he raped her and ran to the police for help. These facts do not demonstrate drunkness on her part. They merely show that only the accused was drunk. It would appear though that drunkenness will not be regarded as a mitigating factor ([1]). But it will be an aggravating factor ([2]).

There are no real facts for the accused to draw the inference that there was arrangement that he would have sexual intercourse with the victim at the scene with her consent. The victim was not with the accused at the Night Club. It was the accused who agreed to buy food for the victim as she was hungry. She did not ask for money from him for sex. The victim went to the back of the tree for the sole purpose of urinating. The accused caught up with her there before she was able to pull up her pants. When she declined

to have oral sex with him, he penetrated her vagina with his penis soon after he pushed her to the ground and she quickly push him off her. There would have been insufficient time for her to resist him. She got up and escaped ignoring his offer to pay her money if she allowed him to ejaculate inside her vagina.

Mr. Nori is right when he says that women in Solomon Islands need protection for their safety. This court would go further to add that they also have the protection of the law ([3]) and freedom of movement ([4]) to whatever place including public places. There are no facts showing that the victim is of loose moral character. On the contrary, she maintained her personal privacy by declining the accused’s initial sexual advances for her to have oral sex with him that night.

Rape will always be a most serious offence. It has a maximum imprisonment sentence of life imprisonment. It is an offence of violence based on a selfish disregard of the rights and feelings of girls and women in this country. It is likely to cause serious and long lasting harm to the victim. The starting point of the sanction for rape in this jurisdiction, where no aggravating features are present, is 5 years imprisonment ([5]).

But there are mitigating features present in this case which will reduce the sentence below 5 years imprisonment. Although the accused was drunk at the time, he did not cause any injuries to the victim’s genilalia and body. The accused has no previous convictions. There was delay in the disposal of this case. The accused was remanded in custody for 27 days. These factors are taken into account in favour of the accused.

Further, the important factors in the accused’s favour are his admission of the offence and his guilty plea. The accused made frank admission to the police. That demonstrates real remorse for his offence and as well cooperation with the police. The guilty plea on the other hand, saved the victim from extreme distressing experience to give evidence in open court about what happened to her that night. Also, it shows that the accused appreciates how wrong his conduct was and regrets it. It was entered at the earliest stage of the trial.

The sentence which fits the accused’s offence, after taking mitigating features into account, is one of two and half years imprisonment. Accused, Benjamin Waiapuru, you are sentenced to serve a term of two and half years imprisonment from today, 22 August 2008.

You are sentenced to two and a half years imprisonment accordingly.

THE COURT

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^[1] Paton (1982) Crim L. R. 58
^[2] Lindley (1980) 2 Cr. App. R (S) 3; Bradly (1980) 2 Cr. App. R (S) 12
^[3] Solomon Islands Constitution S. 3 (a)
^[4] Solomon Islands Constitution S. 14
^[5] R-v- Ligiau and Dori HCSI Criminal Case No 35 of 1986