Regina v Luimalefo [2008] SBHC 74; HCSI-CRC 224 of 2007 (12 December 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 224 of 2007

REGINA

V

DAVID JEFFREY LUIMALEFO

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 27th - 31st October, 13th November, 28th November
Date of Judgement: 11th December 2008
Sentence: 12th December 2008

M. Coates for the Crown
K. Anderson (Mrs.) for the Defendant

Palmer CJ.

1. The offence of attempted rape is a serious offence attracting a maximum sentence of 7 years. The only reason why the full offence was not committed was because you could not achieve penile penetration for obvious reasons. At least you did not persist and saved the victim from severe injuries. You used your position of trust to commit the offence. She was in your trust and care and you abused that position. Even when she protested and even called you "stupid" to try and dissuade you from continuing with this action you did not listen or heed her protests. You were much older than her and bigger in size as well. Your age difference is also great; she was only 13 years old at time of commission of offence and you were already a big and mature man, 35 years old and ought to have known better.
   
2. You have failed in your duty to protect and look after her as a child within your care. Instead you abused that trust and abused her.
   
3. You used threats to frighten her and while no actual violence was used, you had a knife with you. From your size alone, a child will have been frightened enough, how much more when accompanied with a knife. The effect on the child was immediate. She ran away from you straight after the incident, which only shows how badly affected or distressed she must have been about what had happened. Each child is entitled to be protected from sexual exploitation, exposure, indecency or molestation and who better to do it than the person in such a position of trust.
   
4. I accept submissions from your lawyer that you should be treated as a first offender in this matter. Your previous convictions are relatively minor, the last one in 2001, some seven years ago and I disregard them. I accept no further indignities or acts of perversion were committed on her and she suffered no physical injuries though the stress and trauma on her innocent mind is bound to take time to heal.
   
5. I have had the benefit of comparative cases for attempted rape and similar sexual offences in this jurisdiction. The sentences I have been referred to and perused range from about 2[1] – 5[2] years depending on the circumstances of each case.
   
6. Taking into account the aggravating features in this case and balancing that with your mitigating factors I am satisfied a sentence of 2½ years would be appropriate in this case. The period spent in custody is to be taken into account.
   

ORDERS OF THE COURT:

1. Impose sentence of 2½ years.
   
2. The period spent in custody to be taken into account.
   

THE COURT

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^[1] Mulele v. Director of Public Prosecutins [1986] SBHC 4; [1985-1986] SILR 145 (14 January 1986), a sentence of 2½ years was imposed for defilement committed with a girl of about 12 years old – defendant was 26 years old.

^[2] R. v. Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)