Regina v Soni [2012] SBHC 120; HCSI-CRC 128 of 2011 (7 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC NO. 128 of 2011

R

-v –

ELIJAH SONI

Hearing Dates: August 27th–29th August 2012
Date of Verdict: Friday 31st August 2012
Sentencing Submissions: Thursday 6th September 2012
Sentence Delivered: Friday 7th September 2012

Ms Walenenea and Ms Driu for the Crown (DPP)
Ms McSpedden and Mr Ronald Dive for Accused

Sentence:
Pallaras J

[1] You have been convicted of one count of rape in that on 19th of January, 2012 at Kukuru Village, Malaita Province, you raped Matalyn MALI (the Complainant) who was at the time a 13 year old girl.

[2] I am told by your counsel that you are now 26 years of age, you are married with a young child and that you have no previous convictions. You work as a subsistence farmer and prior to your arrest lived at the village of Kukuru in North Malaita.

[3] Your counsel frankly and quite properly conceded that there were no mitigating factors in your commission of this offence.

[4] The Crown on the other hand submitted that there were three aggravating factors two of which were:

1. That the Complainant was subjected to a form of imprisonment and
2. That the prisoner occupied a position of trust with the Complainant.
   

[5] I do not accept that there was any form of imprisonment other than the restriction on the Complainant's liberty that was part and parcel of the offence of rape. She was held by the arms and dragged a short distance into the bush to where the rape was committed. In my view, that was the method by which the rape was committed rather than an aggravating feature of the rape.

[6] I also do not accept that the evidence suggested, much less established, that a position of trust as the law regards it existed between the prisoner and the Complainant.

[7] While I reject the Crown's submissions on these aspects of aggravation, I do however find on the evidence before me that there were significant and concerning features of aggravation proven beyond reasonable doubt.

Features of Aggravation:

[8] First, before you raped the Complainant, you threatened that if she should cry out or call for help you would use the axe that you were carrying on her. You continued to threaten her life with the axe while you were raping her and after you had raped her, constantly repeated the threat. Your clear intention was that you would so terrify the Complainant that she would be unable to call for help against your attack. You succeeded in doing just that.

[9] I find that you not only used verbal threats against the Complainant but also intended to create in her mind a real fear that you would carry out those threats by carrying the weapon in your hand throughout the offence. She no doubt felt, as you intended her to, that she would be attacked with an axe as well as raped if she cried out for help.

[10] Secondly, there is evidence that this attack on the Complainant was calculated and premeditated. Not only was it premeditated, but the reason that you give for having raped her has nothing to do with the complainant whatsoever except for the fact that the object of your hatred happened to be her uncle.

[11] You said in your unsworn statement that you "hate her uncle" because you allege that he wanted to have a sexual relationship with your wife. You repeated that sentiment in your record of interview where you tried to explain your actions in raping the Complainant by saying "I did that to hem because hem uncle Leni used to give or say abusive words to my wife."

[12] Even if what you suspect of the uncle is true, and I hasten to add that there is absolutely no evidence at all to suggest that it is true, the fact that you chose to seek retribution on the uncle by taking out your hate on a thirteen year old girl instead of dealing with the adult involved, is indicative of just what a coward you are and what a cowardly crime you have committed.

[13] Thirdly and most seriously of all of the aggravating features is the age of the complainant and the difference between your age and hers. Even when she came to give her evidence in court the Complainant presented as an intellectually immature, placid and uncomplicated young village girl. When she gave evidence she was fifteen years old. When she was raped by you she was just 13 years old. You were 25 years old.

[14] There is a fundamental obligation on the Courts to assist the community to do what it can to protect its children from predators like you. From those who share your distorted mindset so apparently evident in this case that because you say you had so called "information" that other men had sex with the Complainant that this enabled you to feel quite free to have sex with a very young child yourself.

[15] You chose not to resolve your hate for the Complainant's uncle with him because you were too much of a coward. You instead attacked a young child because again, you are a coward and thought that you could terrorise her into keeping silent. You failed.

[16] Your professed unawareness that it was not wrong to have sexual intercourse with "a small or 13 year old girl" has all the hallmarks of convenient invention. I find your account to be mendacious, your motive cowardly and your actions disgraceful.

[17] The message has to be delivered and clearly understood that this sort of disrespect of women and, in particular, cruelty to young children will not be tolerated by the community and when such offenders come before the Courts they will be treated as having committed one of the worst offences known to the criminal law.

[18] The Penal Code [Cap.26] of Solomon Islands leaves no doubt as to the seriousness with which the offence of rape is regarded. Section 137 provides that a rapist such as you is liable to imprisonment for life. While the maximum penalty is reserved for cases of the worst kind, it is hard to imagine a more reprehensible offence of rape than the rape of a young girl accompanied by threats of violence and the use of a weapon. Perhaps the absence of any serious physical injury (and I stress physical) and the fact that the complainant had reached her teens, although only just, may save this from being in the worst category. But the margin is a slim one.

[19] Courts are often quite merciful in their use of the extensive sentencing range that is provided in convictions for rape. The numbers of cases in which sentences in the low to mid-range are imposed upon conviction are abundant. However with the unremitting frequency with which the crime of rape is being committed, there is good reason to look at a higher repositioning of the typical sentence imposed for this offence in an effort to better achieve one of the aims of good sentencing – that of general deterrence. We must not allow ourselves to be de-sensitised to the criminality of the offence just because it is so prevalent in our midst.

The Authorities and Past Sentencing Practices

[20] I have carefully considered all of the authorities submitted to me by the Crown and by your counsel. It is clear that for cases of rape without significant aggravating or mitigating features consideration of the appropriate sentence should begin at five years imprisonment. In cases that are attended by significant aggravating features, the starting point ought to be "substantially higher" [1].

[21] In Ligiau, an accused pleaded guilty to the rape of a 12 year old girl. No more force than was necessary to commit the offence was used however the accused did threaten to kill the victim. The guilty plea was regarded as not only showing remorse and contrition by the accused but that it also spared the young victim from testifying and reliving the experience. This case came before the courts and the sentence of 6 years was passed 25 years ago after a plea of guilty.

[22] In my judgement the passage of a quarter of a century since that sentence was passed combined with the never ending stream of rape cases coming before these courts, suggests that the courts must recognise that the sentences being passed are not achieving one of the principal objectives of a proper sentencing regime, general deterrence.

[23] In my judgement it is time for our Courts to better utilise the scope of the maximum sentence made available to them by the legislature in a way that better reflects current sentencing and community needs and in a way that recognises the apparent contemporary ineffectiveness of benchmarks set so long ago.

[24] While not resiling from those remarks, I recognise that if it is to occur, changes in sentencing practice ought to occur gradually and incrementally. Adopting that approach, I would consider that an appropriate starting point in a contested case without any mitigating or aggravating features should be 7 years.

[25] Cases should be regarded as aggravated where features exist such as:

1. The young age of the victim.
2. The advanced age of the victim.
3. The use of a weapon.
4. The use of threats to the life or safety of the victim.
5. The existence of a relationship of trust and/or responsibility between the accused and the victim.
6. The use of violence by the accused in excess of that necessary to commit the offence.
7. The effect on the victim including significant physical or psychological injury.
8. Where the accused breaks into where the victim is living and then commits the rape.
9. Where there is an element of pre-planning by the accused.
10. Where the accused has previous convictions for rape or other serious offences of a violent or sexual kind.
11. Where the victim is subjected to further degrading sexual acts.
    

[26] In my judgement, such cases should attract a starting point of 9-10 years imprisonment.

[27] I return to the present case.

[28] While acknowledging and being prepared to plead guilty to the offence of defilement and, as such, admitting having sexual intercourse with the victim, you pleaded not guilty to the count of rape. There was little utilitarian value then in your offer to plead to the count of defilement as the victim was obliged to give evidence and had to relive the offence and endure lengthy cross-examination.

[29] While it is true that you have no previous convictions and to the extent that this may have been offered as a mitigating factor I adopt the words of Ward CJ in Ligiau[2] when he said,

"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 crime."

[30] While you are to be treated as a first offender and while I allow for the matters personal to you submitted to me by your counsel, these have less bearing on a sentence in a case of this nature.

[31] Taking into account the absence of any other mitigating features and also the findings I have made as to the presence of several serious features of aggravation, you are hereby sentenced to a term of 9 years imprisonment.

THE COURT

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^[1] R v Ligiau and Dori (1985-6) SILR 214
^[2] R v Ligiau and Dori op. cit. at 215