Regina v Maewanusi [2010] SBHC 53; HCSI-CRC 384 of 2009 (17 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Criminal Case No. 384 of 2009

REGINA

V

LEDDLEY NGARAIDIRI MAEWANUSI

Date of Hearing: 17 August 2010
Date of Sentence: 17 August 2010

For Crown: Mr. Barry and Mr. Aulanga
For Defence: Mr. Cades and Mr. Gray

SENTENCE

Faukona J: The accused Leddley Ngaraidiri Maewanusi was charged for one count of rape contrary to section 137of the Penal Code. Upon arraignment the accused entered a plea of guilty. The court therefore has to consider the most appropriate sentence to impose in the circumstance of this case.

The facts:

2. On 19 March 2005 at about 11:00 am, Mary the victim went to collect cooking utensils from a river at Tawatana village. She went with a friend. On returning they met the accused. Mary's friend went ahead whilst she remained with the accused.

3. The accused then began accusing the victim of passing messages between two other people and that the village chief would enquire into this.

4. The accused also accused the victim of going around with the other boys. The victim began to cry and the accused told her not to, or worry and that he could give her custom medicine to assist her when the chief enquired into the matter of passing messages. The accused explained to Mary how to take the medicine. At this stage the accused took Mary's knife from her.

5. Whilst the accused was explaining the custom medicine to Mary other people passed by or stopped. The accused suggested to Mary and demonstrated to her how the custom medicine worked. Mary followed him, believing what he had told her about custom medicine. They walked to a place where the accused had told Mary the custom medicine was located. That place was 200 metres from where they first met. They went to a place where the accused said was a holy place. This was some distance from the village. They reached a cave and the accused went and got a rope. He cut the rope and told Mary to put in under her tongue. He cut another rope and asked Mary to stand up so that he could measure her joints. The accused then asked Mary to remove her trousers which she did. She was wearing both a skirt and trousers.

6. The accused then wanted to measure her thighs so he asked her to remove her skirt but she refused. So the accused pulled up her skirt and measured her thighs.

7. The accused told Mary that he wanted to measure her vagina. He touched her vagina and told her to remove her skirt. He also told her to lie down and the accused touched her vagina with his finger. The accused then pulled up Mary's skirt and the accused pushed the rope into her vagina together with his finger. Mary told him not to do this but he told her to be quiet however, she feared him.

8. He then told her to sit down and took out a container from his bag. He then removed what appeared to be a root of a tree and told her that it was a custom medicine. Mary attempted to remove the rope from her vagina but the accused stopped her from doing so, saying he would remove it. He spoke in a fierce manner to her causing her to be fearful.

9. The accused then ordered Mary to lie down and she laid down. The accused pulled up her skirt, opened her thighs and removed the rope in her vagina. The accused again touched her vagina and Mary told him not to do it. The accused then moved on top of her and held her tightly by the neck and slapped her cheek and her vagina.

10. The accused talked angrily to her causing her more fear. The accused then pulled down his pants and put his erected penis into her vagina causing Mary to cry. The accused then completed the sex act by thrusting his body and ejaculating into Mary. The accused then pulled up his pants and told Mary not to tell any one of what had occurred. Mary then ran off and met someone whilst crying. She explained to this person and another that she had been raped. Subsequently the accused was located and asked what had happened. He accused Mary of lying before admitting that he had sex with her. Mary subsequently took police to the scene of the alleged rape. Police took some photos and recovered some rope. The accused was interviewed on 29/3/2005.

11. Where the accused plea guilty on the charge of rape, the appropriate law when considering the appropriate sentence to impose is enunciated in the case of R v Ligiau and Dori([1]). Both counsel made reference to this case.

12. The principle refer to in Ligiau and Dori case is on page 2. In fact the court was adopting the views of Lord Lane CJ in R v Billam. The principle or the practice ought to be that, and I quote an appropriate sentence out of the paragraph:

"For rape committed by adult without any aggravating or mitigating features a figure of five years should be taken as the starting point in a contested case."

13. This case is not a contested one, the accused has entered a plea of guilty. Likewise this case do have aggravating and mitigating features. The examples of aggravated factors are outlined in the second last paragraph on page 2.

Aggravating Factors
Use of Violence

14. In this case it is aggravated when the accused slapped the face of the victim and slapped the vagina as necessary violence to commit the act of rape. More embarrassing was before the act of rape the accused inserted a rope into the vagina of the victim. Quite unusual in this country, however, the victim believed that it was part of custom medicine to win an inquiry into her message passing. In addition, according to the facts, the accused spoke loudly which caused the victim to fear of him. By inserting the rope into the vagina amounts to subjecting the victim to further sexual indignities or perversions.

15. Although the knife was not physically demonstrated in a violent manner but continuous possession by the accused before and after the act of rape contributed to some fear which amount to aggravation.

16 .At the time of the act of rape the victim was 16 years of age. She was undisputedly a young girl, by definition of young person under Juvenile Offenders Act, which prescribed ages from 14 and 18 years.

17. With the intention to commit the offence of rape the accused decided to trick the victim and led her to a remote spot where he could, if possible, had consensus sex. It did not occur that way. With his trick of custom medicine which acquired through his absolute lie of passing of message and an enquiry to be conducted by the chief. All those are elements used to have the attention of the victim which cause false sense of fear as to what may happen to her. Trickery by leading the victim to a remote sport and lure her belief to his lies is criminality and of course regarded as aggravating factor. It culminates a planned rape.

18. The accused was 33 years at the time of offence. He was a mature man by then who had a wife and children. The victim was a young girl. By expectation the accused was in a better position to control his ego. The accused's age was twice the age of the victim at the time of offending.

19 .The accused has prior convictions. One of them is a sexual related offence which he was goaled for 6 months. This shows no respect and total disregard to the law of this country.

Mitigating features

20. On the other hand, what can be said on behalf of the accused. He pleads guilty to the charge upon arraignment. That is a clear indication that he felt remorse for what he had done. He even went further to make arrangements to reconcile and pay custom compensation. Unfortunately no custom compensation was done nor the reconciliation intended to.

21. Whilst the court gives credit to plea guilty which save time for a lengthy trial and avoid the hustle of giving strenuous evidence in public that may embarrass the dignity of the victim.

22. It is clear from the submission that the Crown did not rely on use of a knife as an element of physical usage to threaten the victim. However, I consider there was no physical injury sustained by the victim as a result of the act of rape. Nothing indicated so even in the medical report.

23. It is understood that the accused has very limited education. He was educated to standard 3. I do not seem to understand that, perhaps because of his level of education that he is ignorant of the law and disrespect the rights and feelings of the victim. That cannot be accepted on the face of it.

24. I have noted the family background of the accused. He is a married man with wife and three children to support. One of his children, the elder one is age six attending primary school.

25. The accused according to defence submissions is working as a carpenter and plumbing, a jack of all trade as suggested. The money he earns is sent to his family who lives in the village to support them.

26. After the committal of this offence the accused had behaved himself for the last five years.

27. In regards to the intended compensation and reconciliation, actually nothing was eventuated, and done very little in determining the appropriate sentence. Likewise I intend not to consider that at all.

28. Rape according to Ward CJ in Ligiau and Dori's case is extremely serious offence. It is an offence of violence based on selfish disregard to rights and feelings of another and is likely to continue. The Court stated on page 2 paragraph 4, last sentence:

"In sexual offence as a whole, or rape or attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most serious crimes."

29. By that authority, and in addition, the family background and other personal mitigations as his employment, or skill he possess and the money he obtains by using and applying his skills, are matters he should first consider, in particular his family before indulging in criminal activities. If he is truly a mature man with family and children to care for and support, he should place priority to his family, other than searching for other girls he could prey on which of course will bring shame to himself and embarrassment to his family.

30. The sentence to impose here is aimed at reflecting the general deterrence protecting young girls from sexually minded men who often fantacise themselves, the only thing they could think of is sex. In addition the sentence is aimed at protecting women and young girls being humiliated and embarrassed which at most will linger on for a long time. The sentence must be such that public at large have to think twice whether to follow the footsteps of the accused or not.

31. In addition to that accused has a history of prior conviction. And that can finely be described as a total disregard of the law. He has one previous conviction of sexual nature which he was goaled for 6 months imprisonment. To ensure the accused learned from his past mistake, this sentence will reflect an opted mind which will lead him to learn his past. And if he is to live harmoniously with the community he belongs to, he has to redirect his own destiny and change from his past nature.

32. Further there is some element of delay in this case. In the case of Kaieti v R([2]) which has assisted me greatly. That delay is well established as a mitigating factor to be taken into account, and must have strong effect of reducing custodial sentence considerably. The accused was arrested few days after the incident. Prosecution was not done until the date of this sentence. It was a delay through the process which took five years to complete.

33. Having said that I have considered all the mitigating features and the aggravating factors in this case. I have given credit to the accused for pleading guilty and that is the most important mitigating feature in this case, coupled with other features. Further, in general the level of physical violence employed to commit the offence is not very serious as to fall within the top scale of the range of sentences.

34In determining the appropriate sentence, considering the circumstances surrounding this case, though quite difficult, as always be, in circuits, to have within reach the guidelines in case laws, I feel that the level of starting point should be lower than the starting point ascribed in Ligiau and Dori's case; because of the fact that this is not a contested case, and there are mitigating features and aggravating factors present. Beside that there is an element of delay for five years which has a direct bearing on this case.

35. All in All in all I have decided that a sentence of four and half (4½) years imprisonment is an appropriate sentence in the circumstances of this case.

The Court

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^([1]) (1986) SBHC 15.
^([2]) (2007) SBHC 93.