Regina v N [2012] SBHC 103; HCSI CRC 262 of 2009 (14 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 262 of 2009

REGINA

-V-

"N"

Hearing: 9th August 2012
Sentence: 14th August 2012

Lavinia Fineanganofo for the Crown.
Sevuloni Valenitabua for the Defendant.

Palmer CJ.

1. The defendant (to be referred to as "N") has pleaded guilty to a charge of rape of a girl contrary to section 136 of the Penal Code (cap. 26).
   
2. The offence of rape is a very serious charge under our laws for it entails the violation of the dignity and the person of the victim affected and "... is an offence of violence based on a selfish disregard for 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"[1].
   
3. In R. v. Ligiau and Dori[2] his Lordship Ward CJ noted a problem in sentencing of such an offence which I agree with.
   

"The problem in sentencing for such an 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."

4. The seriousness of this offence is reflected by the maximum sentence of life imprisonment that has been fixed by the Legislature.
   
5. In the case of R. v. Roberts and Roberts[3] the English Court of Appeal per Lord Lane CJ, provided some guidelines in sentencing of rape cases. His Lordship stated:
   

"Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly, to emphasise the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but by no means least, to protect women. The length of the sentence will depend on all the circumstances."

Lord Lane CJ, who delivered the judgement of the Court, identified a number of features which may aggravate the crime as follows:

"Where a gun or a knife or some other weapon has been used to frighten or injure the victim.

Where violence is used over and above the violence necessarily involved in the act itself.

Where the victim has been subjected to further sexual indignities or perversions.

Where the victim is very young or elderly.

Where the offender is in a position of trust.

Where the offender has intruded into the victim's home.

Where the victim has been deprived of her liberty for a period of time.

Where the rape – or succession of rapes – is carried out by a group of men.

Where the offender has committed a series of rapes on different women, or indeed on the same woman."

6. In R. v. Billam[4], four years after the case of R. v. Roberts and Roberts, Lord Lane CJ also sitting in that case, had further opportunity to expound on, clarify and reiterate the guidelines enunciated in the earlier case. His Lordship noted the opportunity to restate principles to provide guidelines to Judges in what he described as "sentencing in this difficult and sensitive area of the criminal law".
   
7. His Lordship noted the unhappy increase it seemed in the number of rape cases, the nastiness of the cases and noted what would ten years ago (speaking in 1986) had been considered incredible perversions to be commonplace, a scenario not too different in Solomon Islands today.
   
8. His Lordship cited a passage with approval from the Criminal Law Revision Committee's 15th Report on Sexual Offences, Command Paper 9213 of 1984, which described rape as: "Rape is generally regarded as the most grave of all the sexual offences". He also quoted from the Policy Advisory Committee on Sexual Offences report, which gave the reason for this as follows:
   

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse; associated violence or force and in some cases degradation; after the event, quite apart from the woman's continuing insecurity, the fear of venereal disease or pregnancy. We do not believe this latter fear should be underestimated because abortion would usually be available. This is not a choice open to all women and it is not a welcome consequence for any. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and the victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value."

9. His Lordship also made reference to some statistics in the United Kingdom before lying down the following guidelines which were adopted by Ward CJ in R. v. Ligiau and Dori[5]:
   

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.

Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event 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 anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence." (Emphasis added)

10. In a most recent case in this jurisdiction, his Lordship Justice Pallaras in R. v. Thomas Kwaina Belo[6] applied the guidelines laid out by Lord Lane CJ in R. v. Billam[7] as adopted by Ward CJ in R. v. Ligiau and Dori[8] and imposed a sentence of 6 years for the rape of a disabled victim, with an age discrepancy of 35 years; the victim being 15 years old with severe physical and psychological handicaps and the offender about 50 years of age.
    
11. This case falls within the scenario described in R. v. Billam, where a man has broken into or otherwise gained access to a place where the victim is living, the starting point is 8 years. A man's home is his castle and he is entitled to reside safely and securely in his home free from any interference or intrusion by anyone, a fortiori, any child should be able to sleep peacefully and securely at night without fear from being attacked or sexually violated by any intruder. It does not matter where she lives, whether in the city or rural area. Anyone who does so must expect a lengthy custodial sentence. The safety, protection and well being of a child in the security of her home is paramount and to be protected. Whether a house has security fencing, concrete walls, sturdy doors and security screens on its windows, immaterial. In the rural areas, walls are often made of thatched leaves, and doors and windows covered over sometimes only by a piece of cloth, which acts as a curtain. Some families simply cannot afford anything stronger and solid. Homes therefore can be very vulnerable and the courts have duty to send out a strong clear message to the community that those who invade other people's homes to commit offences especially at night, can expect an immediate and lengthy custodial sentence.
    
12. This case also falls within aggravating feature (7) described above where the victim is very young, being a child of only six years old. No one can really tell the effect or harm this rape has done to this young victim as no victim report from a social or health worker is available. Common sense however would seem to indicate that such harm could have quite long lasting effects, most likely mental and psychological. The effect on a very young, tender, innocent and immature mind and personality cannot be over-emphasised enough. These laws are made for a particular purpose to protect such vulnerable members in our community.
    
13. I have also had a look at the medical report of the Doctor in this case, which I take judicial notice of. While no physical injury is recorded, the Doctor's report noted "pus-mucoid, yellowish oozing from the introitus", which was sent for microscopy examination and culture. Her concluded opinion was that the victim had contracted a sexually transmitted disease and treated accordingly. This would be an added aggravating factor.
    
14. But even if this was to be ignored, an aggravating factor to this case also is that it was committed under cover of darkness, at the most vulnerable time of the victim and occupants in the home, when they were all sleeping. To have someone invading the privacy of their home and person is unacceptable and repulsive. No one, especially a child should have to wake up from sleep to find such indignity being committed on her. It would have been a terrifying experience and no one can really measure the harm that this experience would have on such a child.
    
15. The defendant should not be prowling around at night but should also be sleeping in his own house. Night time is given for rest, recuperation and refreshment so that you can do useful and constructive things during the day time.
    
16. I give credit for the guilty plea. I accept that it is consistent with being sorry for what you have done and reflects remorse on your part. This has saved the victim of this case who cannot be named all the embarrassment, shame and indignity that have been caused and having to relive that incident. This has also saved court time and expense as well as resources, which can be applied to other useful purposes.
    
17. I give credit that this is your first time in court and first brush with the law. I note however that you are a young person and that you should have known better and steered away as a young person from this type of offence. You are too young to start on a downward journey of unlawful activity. You should have used your enquiring young and smart mind for other useful pursuits instead of thinking about this type of activity and engaging in them. You have one life to live that God has given you and you should seek to live that life in more useful pursuits that will benefit not only yourself, your family but your community as well, instead of being a liability to the community.
    
18. At the same time, your youth is your greatest strength and when you leave prison you should seek to lead a fruitful and productive life. A custodial sentence in this case is inevitable.
    
19. I note submissions from your lawyer, Mr. Valenitabua regarding the length of the delay in having your case heard timely, but you need to understand that much of this delay has been caused by yourself for you breached your bail conditions when your bail was extended on 20 November 2008 and you were committed to stand trial at the High Court. You had evaded authorities since.
    
20. On the issue of bail in this type of case, it should be considered only in exceptional cases. This type of case should be given priority and fast tracked through the system for disposal. Counsels should make a note of this so that this does not re-occur. All parties have a duty in this type of case, where the victim is a child, a fortiori, where the defendant is a juvenile, to cooperate and work together towards having the matter disposed of expeditiously.
    
21. In any event, stringent bail conditions were imposed by the Magistrates' Court when the defendant was released on bail on 14 August 2008 and extended on 20 November 2008 on committal. These included inter alia, a reporting requirement to the China Town Police Post between 8.00 am – 4.00 pm every Mondays; that he was not to leave the town boundary, and to reside with Alfred Ngelea at the Holy Cross. I do not think much can be made out of this delay factor other than for this court to note the period it has taken to have this case completed, any changes that have occurred and given such credit as is appropriate. Had the defendant surrendered on his bail, it could have been expedited. Had his parents or whoever had been harbouring him surrendered him to the court earlier, the delay would have been reduced. The public need to be reminded that it is an offence to hide or harbour a fugitive. It is the duty of every citizen to report such persons to the police or if they are in their care to surrender them to the police immediately. I also note his attendance in court has been made possible only because of the diligence of the Police in having the bench warrant issued executed timely and after much expense, where the use of a helicopter had been resorted to.
    
22. I note some form of compensation has been made and reconciliation effected between the families affected. This is a necessary part in our culture and enables the parties to continue with life normally after such an incident has occurred. The payment of compensation in our society has its useful role to play. I take this into account.
    
23. I note other cases that have been referred to by Counsels. This case can be distinguished easily by the facts in the commission of the offence, the circumstances of the defendant and the victim already referred to in this sentence.
    
24. I take into account general and specific deterrence principles, retribution and prospects of rehabilitation, which in this case are good, the defendant being a juvenile, 16 years or thereabouts at the time of the commission of the offence and that he has the support of his family, which is important when he is eventually released from prison.
    
25. Balancing all these interests together, the facts of the case, the circumstances of the offence and the defendant and the aggravating and mitigating factors together, a sentence of 5 years is imposed. I further order that you will serve a minimum of half of that sentence in prison and the remaining half in the community on a good behaviour bond. If you re-offend or misbehave in the community you will be liable to be re-arrested and to serve the remainder of your sentence in prison. Any period spent in custody is to be taken into account.
    
26. The defendant has a right of appeal to the Court of Appeal against sentence within thirty days.
    

Orders of the Court:

1. Convicted of the offence of rape.
   
2. Impose sentence of 5 years, with a minimum of half of that sentence to be served in prison and the remainder to be served in the community on a good behaviour bond.
   
3. Any period spent in custody to be taken into account.
   

The Court.

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^[1] R. v. Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986), page 2.
^[2] (ibid)
^[3] (1982) 4 Cr. App. R. (S.) 8: Lord Lane CJ, Skinner and Leonard JJ.
^[4] (1986) 8 Cr. App. R. (S.): Lord Lane CJ, Mann J. and Sir Roger Ormrod
^[5] [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)
^[6] HCSI-CRC 9 of 2009 (10 August 2012)
^[7] (ibid)
^[8] (ibid)