Regina v Tawaia [2011] SBHC 84; HCSI-CRC 437 of 2009 (30 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

AMBROSE TEMBERE TAWAIA

Date of Hearing: 26 August 2011
Date of Judgment: 30 August 2011

Mr. D. Nimepo for the Crown
Mr. Aupai and Barlow for the accused

SENTENCE

Apaniai, PJ:

1. The accused, Ambrose Tembere Tawaia, is charged with 4 counts of indecent assault and 1 count of rape. He pleaded guilty to all counts and was accordingly convicted of the 5 charges.
   
2. The victims in these charges (who will be referred to herein as "Jill", "Constance", "Claudine" and "Jacinta") were all young girls of 13 to 17 years of age at the time of the offences. The accused was 39 years old at that time. He is now 41 years old.
   
3. The accused was arrested on 6 May 2009 in connection with these charges and has remained in custody since then.
   

First victim "Jill"

4. The first two charges against the accused were committed in relation to Jill who was 17 years old at the time of the commission of the offences. The accused had committed rape and indecent assault on Jill.
   
5. The facts of the rape and indecent assault charges are that on 31 January 2009, the accused and Jill went to the bush at White River at the instigation of the accused to collect leaves from a tree known as "merinda tree" which the accused said could make hair grow.
   
6. They went to a bus stop normally referred to as "02" and then travelled along the road to the last house at the west end of the White River Market ("Market"). From there, they went into the bush and up on to the hill overlooking the Market. This is the place where the Australian High Commission buildings ("AHC compound") were before they were destroyed during the ethnic tension in 2000. There, they came to a merinda tree. Jill sat down under the tree while the accused started to pick leaves from the tree.
   
7. While picking the leaves, the accused asked Jill whether she had any boyfriend. Jill said "yes". The accused then told Jill that her boyfriend had "cursed" her sperm and that he would remove the curse from her. He then told her to pull up her shirt. She did and the accused then started rubbing the leaves under her breast and down her belly.
   
8. The accused then told Jill to remove her trousers saying that the curse was somewhere under the trousers. Jill complied and pulled her trousers down. The accused started rubbing the leaves on Jill's vagina.
   
9. The accused then told Jill that the curse was on her right thigh and asked Jill to move her trousers further down. Jill complied. The accused then started rubbing the leaves on Jill's right thigh. Then he told Jill to sit down and to remove her trousers and pant completely to enable the curse to go from her. Jill complied.
   
10. The accused then pushed two of his fingers into Jill's vagina while at the same time chanting in his own language. He then told Jill to lie down. Jill was curious and asked the accused what he was going to do. The accused told Jill that he would lie on top of her and when he did that she should imagine that it was her boyfriend that was lying on top of her. He said the curse would then leave if she imagined that it was her boyfriend that was lying on top of her.
    
11. Jill lied down as told and the accused then lied on top of her and had sex with her. He instructed Jill to keep mentioning her boyfriend's name as he was having sex with her. After having sex with Jill, the accused took the leaves and wiped Jill's vagina with the leaves and then showed the leaves to Jill saying that was what the boyfriend had done to her.
    

Second victim "Constance"

12. The third charge against the accused related to acts of indecent assault committed by the accused in relation to Constance who was 16 years old at the time of the commission of the offence.
    
13. The facts of this charge, briefly, are that on 1 February 2009, Constance was upstairs at a house at White River belonging to her cousin sister, Marion. She then decided to check on Claudine and Jacinta who were downstairs in the same house. As she came down, she saw that the accused, Claudine and Jacinta were getting ready to leave. She joined them and they proceeded to the White River Market where they then turned into the bush and went again towards the AHC compound where the accused and Jill, the first victim, went the day before (31 January 2009).
    
14. It appears that the accused had lured the girls into following him by lying to them that he could read their palms and foretell their future.
    
15. As they came to a slope above the Market, the accused told the girls to wait and that he would take the girls up the slope one at a time. Claudine and Jacinta waited while Constance went with him.
    
16. The accused and Constance went up the slope and came to a tree which had green leaves and ripe fruit which gave out very bad odour. The accused then began to chant in his Gilbertese language and asked Constance to break a leaf from the tree and to fold it into halves and to give it to him. Constance complied.
    
17. The accused then began to perform some ritual by placing the leave onto Constance's forehead, then onto her jaws, then down to her chest, then on her belly and then rubbing the leave onto her vaginal area while at the same time chanting in his Gilbertese language.
    
18. Constance did not like the accused touching her vagina so she left the accused and went back to where Claudine and Jacinta were.
    

Third victim "Claudine"

19. The fourth charge against the accused related to acts of indecent assault committed by the accused in relation to Claudine who was 13 years old at the time of the commission of the offence.
    
20. Claudine was one of those who accompanied the accused, along with Constance and Jacinta, to the AHC compound on 1 February 2009 as earlier stated.
    
21. After the accused had finished with Constance, it was Claudine who again went with the accused into the bush. There, the accused played the same trick on her by pushing the leaf of the tree into her vagina. The accused told Claudine that if he did not do that to her, she would have problems in the future and if she found a job, her husband would assault her and cause problem to her. Claudine escaped from him when she saw him unzipping his trousers.
    

Fourth victim "Jacinta"

22. The fifth charge related to acts of indecent assault committed by the accused in relation to Jacinta who was 15 years old at the time of the commission of the offence.
    
23. Jacinta was one of those who accompanied the accused, along with Constance and Claudine, to the AHC compound on 1 February 2009 as earlier stated.
    
24. After the accused had finished with Claudine, it was Jacinta who was the last person to go with the accused into the bush. There, the accused again played the same trick on her as he did to Constance. The accused began by placing the leave onto Jacinta's forehead, then onto her jaws, then down to her chest, then on her belly and then rubbing the leave onto her vaginal area. After that, Jacinta left and returned to where Constance and Claudine were.
    

Aggravating factors

25. These are offences committed against very young girls. Rape carries a maximum of life imprisonment while the maximum sentence for indecent assault is 5 years imprisonment.
    
26. Whilst the sexual intercourse with Jill was consensual, the accused had tricked her into believing that he was curing her of some curse placed on her by her boyfriend. This was a lie and the accused knew it. The law does not approve of such tricks and has treated such conduct as rape. It is rape because consent was obtained by false representation.
    
27. The indecent assaults on Jill and the other victims were also committed by false representations. The accused had tricked them into submission by falsely representing to them that he was curing them of some curse and by telling them that they had better submit or else they would encounter problems in the future. These were deliberate lies intended to lure these unsuspecting young victims into consenting to the accused's evil intentions.
    
28. The offence of rape committed on Jill is very similar to the case of R v Tebounapa[1]. In that case, the accused had committed indecent assault and rape on a number of women by falsely representing that he was curing them of some diseases. In that case, the victims were adults and should have known better. The court sentenced the accused to 12 months for the charge of indecent assault and 6 years for rape. He was a first offender.
    
29. R v Tahinao[2] was another case whereby a self proclaimed custom doctor had committed indecent assault on three female clients and ultimately raped one of them. The indecent assaults were committed through false representations. He was sentenced to 12 months each for the indecent assaults and 3 years for the rape charge. The victims were adults and should have known better.
    
30. The case of R v Sisiolo[3] was a further case of a custom doctor raping his clients by falsely representing to them that if he had sex with them they would be cured of their diseases. He had a previous conviction for a similar offence in the past. He was sentenced to 8 years imprisonment for each count.
    
31. In R v Ligiau & Dori[4] ("Ligiau case"), it has now been more or less settled that the starting point for rape is as set by Lord Lane in R v Billam[5] 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.
    
32. In that case, Ligiau was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment while 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.
    
33. In the present case, the accused is charged with 1 counts of rape. I am satisfied the case has a number of aggravating features. First, the victim of the rape charge was 17 years old when the offence was committed on her. She was tricked by the accused into submission by lying to the victim that he was curing her of some curse cast on her by her boyfriend. Second, the accused was a mature person and these young girls have trusted him very much to the extent that they allowed him to touch their private parts thinking that he was carrying out cure on them in doing that.
    
34. Fortunately for the accused, no injury was occasioned to any of the victims and no pregnancy resulted from the rape incident.
    
35. Counsel for the accused has submitted a number of mitigating factors on his behalf. First, counsel says that he had pleaded guilty to the offences. There are advantages of a guilty plea. First, it spared the costs of a full trial. Second, it spared the victims from having to appear in the witness box and recalling what had taken place between them and the accused. Thirdly, as I said in R v Maenisoa[6], 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. I give him credit for pleading guilty.
    
36. The second mitigating factor referred to by counsel is that the accused had no previous convictions. I agree and I further give him credit for being a first offender and for his past clean record.
    
37. The third mitigating factor raised by counsel is that of the accused's personal and family circumstances. I have taken those circumstances into account as well.
    
38. I have also taken into account the accused's co-operation with the police and his genuine remorse. I am satisfied the accused is a person who has a prospect for rehabilitation.
    
39. Having considered these aggravated features as well as the mitigating factors submitted on behalf of the accused, I am satisfied that this is a case which deserves a prison term of 5 years for the rape charge and a term of 2 years each for the indecent assault charges.
    
40. The next question is whether the sentences should be concurrent or consecutive.
    
41. The offences were committed over a period of 2 consecutive days and therefore I am satisfied that they should be treated as forming a single transaction deserving concurrent treatment.
    
42. It follows therefore that these sentences shall be served concurrently which means that the accused will only serve a period of 5 years in all for the offences.
    
43. Finally, I have also considered the totality of the sentences and I am satisfied that 5 years is reasonable having regard to the nature of the offences and the circumstances thereof. The accused is now 41 years old and therefore I do not think the sentence of 5 years will have a crushing effect on him.
    
44. Orders of the court are:-
    

[1] The accused is sentenced to 2 years imprisonment for each of counts 1, 3, 4 and 5;

[2] The accused is sentenced to 5 years imprisonment for count 2;

[3] These sentences are to be served concurrently; and

[4] The sentences are to be back-dated to the time when the accused was taken into custody.

THE COURT

Justice James Apaniai
Puisne Judge

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^[1] CRC No. 33 of 1997.
^[2] CRC No. 369 of 2004.
^[3] CRC No. 194 of 2007.
^[4] [1985-1986] SILR 214
^[5] (1986) 1 WLR 349
^[6] CRC No. 10 of 2010, at p. 5.