Regina v Kipusia [2010] SBHC 84; HCSI-CRC 181 of 2010 (6 December 2010)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)

REGINA

V

STEPHEN KIPUSIA

Date of Hearing : 11 October 2010
Date of Sentence : 6 December 2010

Mr. Kelesi for Crown
Mr. Kesaka for Defence

DECISION AND SENTENCE
FOLLOWING GUILTY PLEA

Mwanesalua J:

On 11 October 2010 the accused appeared before the High Court to be sentenced on one count of attempted rape of victim, Susie Kawuri, on 7 May 2008, under section 138 of the Penal Code. Sentence was then set for to-day pending a medical report on the accused. That report is now before the court.

The agreed facts are that, on 7 May 2008 the accused met the victim on the main road at Marahu near Kirakira. She was walking to Bauro village after attending clinic at Kirakira. The accused approached the victim and held both of her hands. He locked her with his hands from behind her neck and said to her, "Mi laikim iu". The accused then dragged her to a nearby bush. When they were in the bush, he used his legs to lock her legs. He held her neck with his left hand and removed his shirt and trousers with his right hand. She could not shout because he held onto her neck.

After removing his clothes, the accused pushed the victim who fell to the ground. The accused laid on her and tried to separate her legs. He did not succeed because the victim struggled to resist him. The accused pulled her legs up and separated them. He push his penis into her vagina but he could not penetrate her because she tightened her legs and still wore her clothes.

The accused pulled the victim up and squeezed her neck. She struggled with him until she grabbed his testicles and squeezed his balls with both of her hands. She pulled them to her mouth and bit them. The accused was so over-whelmed with pain that he pleaded with the victim to let him go. She did so and ran to the road. The accused ran after the victim. He grabbed the victim and pushed her into a stream. She struggled with him until he separated herself from him. She continued to ran to the road and called out for help.

A passer-by named John Muru heard her and responded to her call. He walked to the place he heard the call and found the victim lying unconscious on the ground. He saw blood on her lips and assisted her to the road. He stopped a vehicle and took her to Kirakira Police Station. She was still at the station when the police brought in man whom she identified as the accused.

The police obtained a caution statement from the accused on 8 May 2008. In that statement, he admitted that he wanted to have sexual intercourse with the victim. He pleaded guilty to attempted rape during the preliminary inquiry at the magistrate's court on 18 September 2009. He was committed to the High court to be sentenced for the offence.

The circumstances of the offending by the accused are serious. He seized his victim at a lonely section of the road with an obvious desire to have sexual intercourse with her without her consent. He forced her to walk with him into the bush for that purpose. He made several attempts to get her in suitable positions during their struggle from which to thrust his penis into her vagina. And he sustained a protracted physical assault upon the victim during the offending. The victim merely avoided the accused from raping her by preventing him from removing her clothes; by maintaining a continuous struggle against him; by closing her legs together to resist him from accessing her vagina and by a prompt response from a passer-by to her desperate call for help while escaping back to the road.

The accused has a criminal record. He was convicted of murder in 2007 (Regina v SK criminal case No. 566 of 2005) and was sentenced to 7 years imprisonment by virtue of the Juvenile offenders Act [Cap 14]. In addition, he was ordered to be released from prison, and among other orders, to keep the peace and be of good behavior for the rest of the term of his sentence. It is obvious that the accused clearly breached these two later specified orders by re-offending only within 3 years after his sentence of imprisonment was imposed.

The following mitigating factors are taken into account in favour of the accused. He admitted his offending in his caution statement. He entered a guilty plea to his offence at the first opportunity. That was during the preliminary inquiry on 18 September 2009. He did not touch the vagina of the victim either with his hand or penis. He did not commit further acts of sexual indignity and perversion on the victim. His offence was not planned before its commission and that his parents made reparations in form of payment of compensation to the relatives of the victim. And that he was remanded in police custody since he was arrested on 7 May 2008. That was a period of about 2 years and 7 months to to-day's date, 6 December 2010.

The maximum sentence for attempted rape is 7 years imprisonment. The court has considered the aggravating circumstances of the offending and the mitigating factors taken in favour of the accused in reaching the term of the sentence to be passed on the accused. The court considers that Steven Kipusia be sentenced to three and half years imprisonment for this offence. The time he spent in custody is to be deducted from this term. He may appeal the sentence if he considers it to be excessive. And the prosecution may also appeal if they consider the sentence to be inadequate.

Order accordingly.

THE COURT