Regina v Voka [2011] SBHC 26; HCSI-CRC 48 of 2011 (4 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

v

EDWARD VOKA

Date of Hearing: 7th and 28th April and 2nd May 2011
Date of Judgment: 4th May 2011

Ms. N. Kesaka and J. Seuika for the Crown.
Mr. E. Cade for the accused.

SENTENCE

Apaniai, PJ:

1. The accused, Edward Voka, was charged with two counts of rape. It was alleged that the accused raped the victim, Ms. Magreth Hala Labusania, on two occasions at Tulagi, Central Islands Province, in 2008 - the first on 15th May and the second on 3rd September. The accused pleaded guilty to both counts and was accordingly convicted.
   
2. The facts show that the victim is the daughter of the accused. She was 18 years of age at the time of commission of the offences on her while the accused was 39 years of age. The age difference was 21 years.
   
3. The first incident happened at about 5pm on 15th May 2008. The victim was assisting the accused in their family shop at Tulagi, Central Islands Province, when the accused forced her to have sex with him by pushing the victim down on a card board, removing her clothes and then having sex with her against her will. Before inserting his penis into the victim's vagina and having sex with her, the accused held his penis against the victim's face and told her to "eat" his penis. It is not clear whether the accused was teasing the victim or whether he was inviting the victim to perform oral sex on him. Whatever it is, the victim refused. It was then that the accused forcibly had sex with the victim. Apart from the pain she experienced in her vagina when the accused penetrated her, there is no evidence of any serious injury having been caused to the victim.
   
4. The second incident occurred at about 7pm on 3rd September 2008. Both the accused and the victim were attending to customers at the same shop at Tulagi. The accused then instructed the victim to go into a room. No doubt the victim knew why the accused wanted her to go into the room for she refused to follow the accused's instructions whereupon the accused then threw a spoon at her for refusing to follow his instructions. The spoon landed on the victim's head. Apart from feeling a severe pain on her head at the spot where the spoon landed, there is no evidence that the victim had sustained any injury from that spoon-throwing incident. After throwing the spoon at her, the accused forcibly had sex with the victim. After having sex with the victim, the accused threatened her that he would kill her if she told anyone about what he did to her.
   

5. Rape has always been regarded as a very serious offence. In R v Ligiau and Dori[1] ("Ligiau case"), Ward CJ, said:

"Rape is an extremely serious offence. It is an offence of violence based on a selfish disregard of the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long lasting harm to the victim.

6 I agree with that statement. I would add that in a Melanesian society, such as Solomon Islands, not only is rape considered as very serious because of the reasons alluded to above by His Lordship, but also because of the long lasting stigma that such acts would have on the victim, especially when the victim is, as in the present case, the offender's own daughter. The seriousness of the offence in the eyes of the law is reflected by the fact that the law has imposed a maximum penalty of life imprisonment for such offence.

7. In nearly all rape cases, violence has always been a part of such incidents. Such violence can be serious or it can be minor. When the violence is serious, it becomes an aggravated factor relevant to sentencing. Violence becomes an aggravated factor only where the force used is over and above that which is necessary to commit the offence or where serious injury is caused to the victim. I have found no such violence or injury in this case. There is some evidence which showed that the accused had thrown a spoon at the head of the victim and that she felt some severe pain where the spoon landed, but that is all. There is no evidence that injury had resulted from that spoon-throwing incident. I do not consider the spoon-throwing incident as a kind of violence which is over and above that which is necessary to commit the offence.

8. That said, it does not mean, however, that there are no aggravating factors in this case. The victim is the accused's own daughter. He is supposed to be her protector. He had the responsibility to protect her. As I said in R v Maenisoa[2], "if there is anyone whom the victim would trust and look to for care, protection and love, it was the accused". In the present case, the accused's daughter became his victim. She was about 18 when the offence was committed on her. He was 39. The offence was committed twice. The victim will carry the stigma of being raped by her own father for life. These are aggravating factors. Fortunately, no pregnancy resulted from the accused's conduct.

9. I am satisfied that this is a case which requires a custodial sentence. The question is how long should the custodial sentence be.

10. In deciding the appropriate custodial sentence, I would begin with the statement by Lord Lane in R v Billam[3] (referred to by Ward, CJ in the Ligiau case), where his Lordship said:

"For rape committed by adult without any aggrava-ting 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 by any of the following factors: (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. I am satisfied that, having regard to the aggravating factors and the circumstances of this case, especially the fact that the accused stands in a position of responsibility towards the victim, the starting point in this case should be 7 years for each count.

12. However, I have considered the mitigating factors raised by counsel on behalf of the accused. The accused is a first offender. He had pleaded guilty to the two charges and in doing so, he had not only spared 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 her father, but had also spared the costs of a full trial. I have taken those matters into account and give him credit for that.

13. Counsel also submitted that the accused had shown remorse and had cried during his interview with the police. He submitted that the accused should be given credit for his remorse. I have read the accused's record of interview. I noted that to nearly all the questions put to him by the police during the interview, the accused's answer had always been that he did not know. His answers are inconsistent with those of a remorseful person. From those records, it appears to me that his crying as seen by the police interviewer was not because he was remorseful. It was more of a realisation that he was caught and of the fear of the consequences that laid ahead. I do not believe that his crying was a sign of remorse. I give him no credit for that.

14. The accused has no previous convictions. He was, until this incidence, a man of good character. I give him credit for that.

15. It was also submitted on behalf of the accused that he is unlikely to re-offend. That is a statement about his future and is a difficult statement to make, but I am prepared to give him the benefit of the doubt and give him credit for that. I hope he will live up to that expectation.

16. The personal circumstances of the accused were also raised in mitigation. I have taken those circumstances into account. But 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. I subscribe to that statement. It follows therefore that, while I can give some credit to the accused for his personal circumstances, I do not think those circumstances would attract any substantial reduction in his sentence.

18. I have also considered the comparative analysis of the various incest cases referred to by counsel in deciding the appropriate range within which any term of imprisonment in this case should fall. I am grateful for the analysis. While such analysis is very helpful, whatever sentence is appropriate must depend on the circumstances of each case. In Paskale Togovi v R[4], where the accused was charged with, and had pleaded guilty to, two counts of attempted rape, a sentence of 4 years for each count to be served concurrently. The victim was about 6 – 7 years old and was the granddaughter of the accused. The accused himself was 66 years old at the time. The 4 years sentence was based more on the fact that a longer sentence would have a "crushing" effect on the accused. In R v Ligiau & Dori[5], Ligiau pleaded guilty to raping a 12 year old girl while Dori pleaded guilty to attempting to rape of a girl of 19 years and 4 months. Ligiau was sentenced to 6 years imprisonment and Dori was sentenced to 5 years. In R v Dausina[6], the accused pleaded guilty to one count of rape and one count of incest. The victim was 16 years old at the time of the offence and was the accused's own daughter. No violence was used against the victim. He was sentenced to 3½ years imprisonment. In R v Auwahau[7], the accused was sentenced to 4½ years imprisonment after pleading guilty to a charge of rape. In R v Teikamata[8], the accused was sentenced after trial to 6 years imprisonment for raping a girl younger than himself. In R v Suumania[9], the accused was sentenced after trial to 5 years imprisonment for raping a young girl at the Botanical Garden. No violence was used as the accused had tricked the girl that she better submit or else she would be prosecuted for trespassing in the Botanical Garden. All these cases show that whatever sentence is to be imposed must depend on the circumstances of each case.

19. Counsel for the accused has also submitted that a reconciliation ceremony will take place in June 2011 between the accused (represented by his brother) and his wife and the community at Koilovala village and has asked that the ceremony be taken into account as a sign of remorse. He produced a letter dated 30th April 2011 ("Chiefs' letter") signed by two chiefs living at Koilovala village as well as by representatives of the accused and his wife confirming the planned reconciliation ceremony and pleading for leniency for the accused. Here I am being asked to take into account an event which has not yet occurred. There is a danger of taking into account such events. First, one cannot guarantee that the event will eventuate despite the many assurances by the chiefs concerned. Until the event takes place there is always a possibility that it might not. I note that the case was adjourned on 7th April 2011 to 2nd May 2011 to enable the parties hold the reconciliation ceremony. That did not occur. From the Chiefs' letter, it is apparent that one of the reasons why the ceremony did not eventuate was due to cash flow problem. What guarantee is there that the cash flow problem will be sorted out by June 2011? Second, the assurances that reconciliation would take place were contained in a letter signed by the chiefs and the representatives who were not called as witnesses to testify in court. I cannot rely on the contents of a letter from persons who were not subjected to cross examination. Third, no definite date in June has been indicated as the date for the reconciliation ceremony. This has made the holding of the ceremony even more uncertain. In my judgment, no reconciliation has taken place and that settles it. It is not safe to take into account a future ceremony which may or may not eventuate.

20. Counsel for the accused has also tendered a letter of commendation by SWIM Solomon Islands, which has portrayed the accused as a changed man who is doing bible study courses with the aim of sharing with others his new life and biblical knowledge. Counsel has also submitted another letter from Hoga Family Support Association, of which the accused is the president, which explained the plight of the association in not fulfilling its objectives since the accused was placed in custody in 2009. I have considered these letters and I give him credit for being a changed man. I hope he remains that way in the future.

21. Taking into account the aggravating circumstances of this case and the mitigating factors submitted on behalf of the accused as well as the need to send a clear message to anyone contemplating such behaviour of how the court views such conduct, I am of the opinion that in this case the appropriate sentence to impose is 4 years for each count.

22. I therefore sentence the accused to 4 years imprisonment for each of the two counts, such sentences to be served concurrently with effect from the date the accused was taken into custody.

THE COURT

Justice James Apaniai
Puisne Judge

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^[1] [1985-1986] SILR 214
^[2] CRC No. 82 of 2010
^[3] [1986] 1 WLR 349
^[4] CRC No. 59 of 2009
^[5] [1985-86] SILR 214
^[6] HCSI – CRC 7 of 2007
^[7] HCSI – CRC 18 of 1993
^[8] HCSI – CRC 470 of 2004
^[9] HCSI – CRC 313 of 2003