Regina v Maenisoa [2011] SBHC 25; HCSI-CRC 82 of 2010 (20 April 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

v

JOHN MAENISOA

Date of Hearing: 12 April 2011
Date of Judgment: 20 April 2011

Mrs. N. Kesaka and Mr. J. Seuika for the Crown.
Mr. R. Cavanagh and Mr. R. Tovosia for the accused.

SENTENCE

Apaniai, PJ:

1. The accused, John Maenisoa, was charged with 4 counts of rape. He pleaded guilty to all 4 counts and was accordingly convicted. The victim was the accused's own daughter.
   
2. The first incident happened at Tasahe on an unknown date in 2007. The victim was 10 years old at that time and was a pre-class student at Mbua Valley school. According to the facts, the victim was not able to remember exactly what happened but she said that she was sleeping in her parents' room, presumably at Eddie Koke's house at Tasahe B, when she realized that the accused was on top of her having sex with her. Eddie Koke is the brother of the accused.
   
3. The second incident happened again at Tasahe B on 20th August 2009 and, again, at Koke's house. The accused had called the victim into their room and upon entering the room the accused asked the victim to lie down on a bed. While lying down the accused removed the victim's pants, undressed himself and had sex with the victim. The victim was afraid of the accused, whom she described as a "wild man" who easily got angry and could do anything when angry. She was frightened of him and therefore could not resist the accused. The victim felt some pain at the lower end of her arse (probably, her vagina) after the accused had completed having sex with her.
   
4. The third incident occurred again Koke's house at Tasahe B at about 10pm on 30th August 2009. The victim was sleeping when the accused called out to her to come and see him on the verandah. She came to the accused who asked her in an angry manner why she did not go with her mother to Point Cruz. The accused told the victim to get her basket, which she did. He then told the victim to choose between going after her mother or sleep. He told her that if she chose to sleep then she must sleep in the girl's room. The victim chose to sleep. She slept in the girl's room. Later the victim came into the girl's room and undressed the victim. He also got himself undressed and then had sex with the victim.
   
5. The fourth incident happened again at Koke's house at Tasahe B at around 3pm on 12th September 2009. The victim was in the room listening to music. She was also feeling sick at that time. She then heard the accused calling out to her. The victim came out to the accused on the verandah. He was holding a scissors at that time and, as she said, was intending to cut her hair for escaping from him at Point Cruz the previous day. The accused then pulled the victim to the girl's room and forced her to remove her clothes. The victim refused. The accused then went outside and had some discussions with some relatives who were under the house. Before he went out, the accused had instructed the victim to remove her clothes by the time he came back. On his return, he forced the victim to undress and then laid her down on the bed. The victim was fearful of the accused so she did not struggle. The accused then had sex with her.
   
6. Rape is a very serious offence. It is an offence which is committed out of a selfish desire to gratify one's own sexual desires, appetite and fantasies in disregard for the rights, dignity and feelings of the victim or the effect which such action might have on the victim's future[1]. The fact that the law has imposed a maximum sentence of life imprisonment for rape speaks volume of the seriousness of how the law looks at that offence. Not only does the law regard rape as serious. The Old Testament biblical laws also regarded rape as a serious offence and imposed a mandatory penalty of "death" on those found guilty of it[2]. Absalom and his men carried out that sentence on Amnon for raping Absalom's sister, Tamar[3]. Absalom and his men were never arrested for their action. It was a penalty prescribed for rape by the biblical laws in force at that time. Even in custom, rape is a serious offence which, in the olden days, called for the death sentence. Unlike the law, the Bible and custom gave no discretion to reduce the sentence. The point here is, whichever way one looks at rape, whether legally, biblically or culturally, it is a very serious offence and one which deserves a severe penalty in the form of custodial sentences.
   
7. Penalties for rape cases dealt with by this court in the past ranged from 3 to 8 years. In R v Ligiau & Dori[4] ("Ligiau case"), Ligiau was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment. In the same case, Dori was convicted of attempted rape of a 10 year old victim and sentenced to 5 years imprisonment. In these two cases, the accuseds have pleaded guilty to the charges and both were first offenders. In R v Gere[5], the accused was found guilty after trial and sentenced to 3 years for raping his step-daughter who was then 16 years old. The accused had threatened the victim with a bush knife in order to force the victim to submit. He was a first offender. In R v Auwahau[6], the accused was convicted on a plea of guilty to a charge of rape and sentenced to 4½ years imprisonment. The force used was not one which could be regarded as beyond that which is normally used in rape cases. He was also a first offender. In R v Nickson[7], the accused was found guilty after trial of one count of rape and sentenced to 6½ years imprisonment. The victim was 15 years old at the time of the offence and had suffered injury to her vagina as a result of the sexual act committed on her. The accused was a first offender. In R v Alualu & Bakeloa[8], the accuseds were each found guilty after trial of raping a 15 year old girl and sentenced to 3 years imprisonment each. In R v Dausina[9], the accused pleaded guilty to one count of raping his 16 year old daughter. He was sentenced to 3½ years imprisonment. In R v Sisiolo[10], the accused was charged with 4 counts of rape, 3 counts relating to the same victim and 1 count in relation to a different victim with all the offences having been committed on 1st, 4th and 7th July 2006. He pleaded guilty to all the 4 counts. The accused had previous convictions in relation to the same offence. He was sentenced to 8 years for each count to be served concurrently. These are rape cases.
   
8. There are also a number of incest cases which may be used as guidelines when determining the appropriate sentence for rape cases which involve fathers as accuseds and daughters as victims. In Roko v R[11], the accused pleaded guilty to, and was convicted of, 4 counts of incest on his 16 year old daughter. The daughter subsequently had a child as a result of the offence. The accused was sentenced on appeal to 2 years for count 1 and 3 years each or counts 2 to 4 to be served concurrently. In R v Atkin[12], the accused pleaded guilty to a number of counts of incest and was convicted on a plea of guilty to 2 years for count 1 and 2 years each on the remaining counts to be served concurrently. In Kyio v R[13], the accused was convicted of incest on his own plea of guilty and sentenced to 2 years with 1 year suspended. The daughter subsequently had a child as a result of the offence. In Toke v R[14], the accused was convicted after trial to 8 years for raping his 15 year old daughter and 5 years for incest to be served concurrently. In R v Hagataku[15], the accused was convicted on his own plea of guilty of incest and sentenced to 3 years. The victim got pregnant as a result of the offence but the foetus later died. In Nanai v R[16], the accused was convicted on his own plea of guilty of incest and sentenced to 2 years. In Fuilorentino v R[17], the accused was convicted of 14 counts of incest on a plea of guilty and sentenced to 9 years which has been reduced on appeal to 3½ years concurrent. The offences were committed over a period of 7 years which resulted in the daughter having 4 children with the accused.
   
9. There are many more rape cases and incest cases that could be referred to in order to show the trend in sentencing of rape and incest cases but the few that have been referred to above show that there are two common threads that run through all these rape cases. These are, first, that they all attract a prison term and, second, that the term of imprisonment imposed depended on the facts and circumstances of each case.
   
10. In determining the prison term for the present case, I can do no better than adopt the starting points as set by Lord Lane in R v Billam[18] and adopted by Ward CJ, in the Ligiau case. That is, for rape committed by adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case. Where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years. The crime should be treated as aggravated where any of the following factors are present: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the figure should be substantially higher than the figure suggested as the starting point.
    
11. In the present case, the accused is charged with 4 counts of rape. I am satisfied the case has a number of aggravating features. The victim was 10 years old when the first offence was committed. She was 12 when the subsequent offences were committed on her. Even at 12 years of age, she was still a child. The accused was her father and had the primary responsibility to protect her. If there is anyone whom the victim would trust and look to for care, protection and love, it was the accused. He failed to carry out that primary responsibility. He must be prepared to accept the consequences of his conduct. He had committed the offences, not once, but 4 times. The age difference between the accused and the victim is about 36 years. Having regard to these aggravating features and taking into account the fact that the charges were not contested, I would, as a starting point, impose a sentence of 7 years for each count. From that starting point, discounts will then be given in the light of the mitigating factors.
    
12. Counsel for the accused has submitted a number of mitigating factors on behalf of the accused. The first is the fact that the accused had pleaded guilty to the offences. There are advantages of a guilty plea. First, it spared the costs of a full trial. Second, in sexual cases, it spares the victim from having to appear in the witness box and re-live a harrowing experience by recalling what had taken place between her and the accused. Thirdly, a guilty plea is an important incentive for the efficient operation of the court system. Without such incentive, accused persons will simply "chance their luck" and proceed to court in the hope that by chance they would be acquitted. This will result in high costs and time wastage. Apart from those advantages, a guilty plea can also be a sign of remorse.
    
13. In my judgment, pleading guilty to a charge, irrespective of what stage of the trial it was made, is always a mitigating factor. When an accused person pleads guilty to a charge, the only issue that the court should be concerned about is what weight should be given to the plea in the circumstances[19]. That is a matter for the discretion of the court. In the present case, the plea was made early and that is a strong mitigating factor. I give him credit for the guilty plea.
    
14. The second mitigating factor referred to by counsel is that the accused had no previous convictions. A first offender is normally treated leniently on the basis that one criminal act is not sufficient to impute upon the accused a tendency of criminality. I further give him credit for being a first offender and for his past clean record.
    
15. The third mitigating factor raised by counsel for the accused is that reconciliation has taken place with the accused's wife and children and other relatives in or about December 2010. One string of shell money was paid as compensation by or on behalf of the accused to his wife. The accused is now on good terms with his wife, his brother Koke and his children. I note that the victim was not part of the reconciliation process and that she now lives in the village. Nevertheless, I give credit to the accused for the reconciliation process.
    
16. Counsel for the accused had also raised the personal and family circumstances of the accused. He has a family which he wants to care for. He is now a changed person having attended bible studies in prison. He no longer smoke or "drink". Counsel also says that it is unlikely the accused will re-offend. Prior to the offences, the accused was a useful person having worked for various companies from 1987 to 2009 when he was arrested for these offences. I have taken those circumstances into account but I do not think much weight should be placed on those circumstances. Circumstances personal to the accused are matters which the accused should have had in mind when he made the decision to commit the offences. As stated by His Lordship, Mr. Ward, CJ, in the Ligiau case:
    

"The problem in sentencing for such offence is that, when the court is faced with a contrite offender, too often mitigating factors are allowed to push consideration of the victim and the offence itself into the background. In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes".

17. Despite the above remarks, I am prepared to take those personal circumstances into account and give him credit for that.
    
18. Having considered the above aggravated features as well as the mitigating factors, I am satisfied that this is a case which deserves a prison term of 3 years for each of the 4 counts. I therefore pass the following sentences:
    

Count 1 – Rape – 3 years,

Count 2 – Rape – 3 years,

Count 3 – Rape – 3 years,

Count 4 – Rape – 3 years.

19. That would be a total of 12 years altogether. However, I note that the first offence was committed in 2007 and that the second, third and fourth offences were committed within a span of 23 days in August and September 2009. So the issue now is whether the sentences should be concurrent or consecutive.
    
20. The general principle is that offences committed concurrently ought to receive concurrent sentences. Generally, offences are concurrent when they form part of a single transaction. The difficulty lies, however, in determining what is a "single transaction". It has been said[20] that offences may be treated as part of a single transaction when they are proximate in time or where they are proximate in the type of offences and where they involve the same victim. However, each case must depend on its own circumstances.
    
21. In the present case, the first offence was committed in 2007 while the second, third and the fourth were committed within a span of 23 days in August and September 2009. There was an intervening period of about 2 years between the commission of the first offence and the other subsequent offences. I am satisfied that the second, third and fourth offences can be treated as a "single transaction" justifying concurrent sentences.
    
22. It follows therefore that the sentences for the second, third and fourth counts will be served concurrently with each other but consecutive with the sentence for the first offence. That means the accused will serve a total of 6 years in prison back-dated to the time when the accused was taken into custody.
    
23. I have also considered the totality of the sentences and I am satisfied that 6 years is reasonable having regard to the nature of the offences and the circumstances thereof. The accused will be 40 this month of April 2011 and therefore I do not think the sentence of 6 years will have a crushing effect on him.
    
24. Orders of the court are:
    

(1) The accused is sentenced to 3 years imprisonment for each of the 4 counts of rape,

(2) Counts 2, 3 and 4 are to be served concurrently, and

(3) The sentences are to be back-dated to the time when the accused was taken into custody.

THE COURT

James Apaniai
Puisne Judge

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^[1] R v Ligiau & Dori [1985-1986] SILR 214
^[2] Dt.22:25
^[3]1Sam.13:14, 28-29
^[4] [1985-1986] SILR 214
^[5] [1981] SILR 145
^[6] CRC 18 of 1993
^[7] CRC 328 of 2006
^[8] [2005] SBHC 106
^[9] CRC 7 of 2007
^[10] CRC 194 of 2007
^[11] [1990] SBHC 99
^[12] CRC 18 of 1994
^[13] CRAC 259 of 2004
^[14] CRAC 50 of 1998
^[15] [1993] SBHC 61
^[16] [2005] SBHC 74
^[17] CRAC 87 of 2008
^[18] (1986) 1 WLR 349
^[19] Gerea v R CRAC 243 of 2004

^[20] Sentencing and Criminal Justice, Andrew Ashworth, 4^th Ed, pp. 243 - 245