Regina v Gua [2012] SBHC 137; HCSI-CRC 195 of 2011 (5 December 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

Criminal Case. 195 OF 2011

REGINA

-v-

MACBERTH GUA

Dates of Hearing: 29th November 2012.
Date of Judgment: 5th December 2012.

Mr. I. Naigulevu for the Crown.
Mr. Allan Hou for the accused.

SENTENCE

1. The accused, Macberth Gua, was found guilty of rape upon his wife, Agaster Tafuselo ("victim"), on 31st March 2009 in a palm oil plantation at the Foxwood. He now appears for sentence.
   
2. The facts of the case are fully set out in my judgment delivered on 12th November 2012. I need not repeat them again.
   
3. Suffice to say that this is a sad case. It is the result of a marriage that has gone bad. The victim had unilaterally terminated her marriage to the accused in her own style and at her own timing. She eloped with a new lover.
   
4. Understandably, the accused was not happy. He wanted to give the victim a clear message, not only that he did not accept her unilateral decision to terminate their ten-year old marriage, but also that she had a responsibility towards their two little daughters.
   
5. Unfortunately, he had conveyed his message to the victim in breach of the law. He must therefore face the consequences set by the law.
   
6. The sentencing bench mark for rape cases in Solomon Islands has more or less been settled in the case of R v Ligiau & Dori[1] ("Ligiau") which adopted the criteria laid down in R v Billam & Others[2] ("Billam"). That bench mark has been followed in a number of cases decided by this court since Ligiau.
   
7. In Ligiau, Ward CJ adopted the criteria in Billam which laid down the following range of sentences in relation to rape cases:-
   

[a] 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;

[b] where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years;

[c] the crime should be treated as aggravated where any of the following factors are present:

(i) violence is used over and above the force necessary to commit the rape;

(ii) a weapon is used to frighten or wound the victim;

(iii) the rape is repeated;

(iv) the rape has been carefully planned;

(v) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

(vi) the victim is subjected to further sexual indignities or perversions;

(vii) the victim is either very old or very young;

(viii) the effect upon the victim, whether physical or mental, is of special seriousness.

[d] 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.

8. Recently, in Regina v Soni[3] ("Soni"), Justice Pallaras re-visited the guidelines laid down in Ligiau and stated as follows:
   

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

[23] In my judgment, it is time for our courts to better utilize the scope of the maximum sentence made available to them by the legislature in a way that better reflect current sentencing and community needs and in a way that recognizes the apparent contemporary ineffectiveness of bench marks set so long ago."

9. I agree with his lordship that if the statistics show an alarming rate of increase in rape cases since Ligiau was decided then the time has come for this court to re-visit the bench mark set down in that case. It is not in the public interest to maintain a bench mark that has no impact. The court must utilise the sentencing powers bestowed upon it by the legislature to protect society from selfish individuals who have no regard to the dignity and safety of women and children. Imposition of more meaningful and effective deterrent sentences is a matter of urgency in these circumstances.
   
10. In Soni, Justice Pallaras has suggested that the bench mark of 5 years for contested rape cases without mitigating or aggravating features as laid down in Ligiau should now be 7 years. His lordship has also suggested that cases in regards to which aggravating features are present - such as the young or advanced age of the victim; the use of a weapon; the use of threats to the life or safety of the victim; the existence of a relationship of trust and/or responsibility between the accused and the victim; the use of violence by the accused in excess of that necessary to commit the offence; the effect on the victim including significant physical or psychological injury; where the accused breaks into where the victim is living and commits the offence; where there is an element of preplanning; where the accused has previous convictions for rape or other serious offences of a violent or sexual nature or where the victim is subjected to further degrading sexual acts – should attract a starting point of 9 to 10 years.
    
11. I agree. I am mindful, however, that each case must be considered in the light of its own circumstances so that where mitigating factors justify a reduction in the sentence below these starting points, the accused must be given that reduction. However, such reduction must not be to such extent as to render the deterrent effect of the sentence meaningless.
    
12. Having said that, I now turn to the present case.
    
13. While the nature of the offence in this case is no different from all other rape cases which have previously come before this court, the circumstances of this case have placed it in a special category.
    
14. This is the first ever case of its kind in Solomon Islands where a husband has been convicted of raping his own wife. It is also a case which has occurred as a result of domestic problems between a husband and his wife. It is not an offence that has been committed to gratify one's own sexual desires. There is an underlying cause for the commission of this offence – the termination by the victim of her marriage to the accused. Hence, the accused is not solely to be blamed for this incident. The complainant must also share the blame.
    
15. There are no easy solutions to marital problems. The hatred and animosity that arise between a husband and wife and their immediate and extended families where, as in this case, there is a break up in the marriage because one of the partners has decided to elope with a new lover can be long lasting if not addressed in an appropriate customary manner.
    
16. Under Solomon Island customary laws, compensation is payable to the offended party by the offending party and his or her new lover. The absence of the payment of such compensation often leads to anti-social and criminal behavior as has happened in this case.
    
17. In my view, these are matters that must be taken into account in determining the appropriate sentence to impose in cases of marital rape. In this case, the problem had not been appropriately addressed. I am obliged to take this into consideration in this case. It would be unfair to the accused if I fail to consider these reasons which, I believe, are the underlying causes for his criminal behavior.
    
18. In addition to the above matters, I have also taken into account the following mitigating factors, that is, the fact that no weapon was used in the commission of the offence; the fact that no serious injuries were inflicted on the victim; the fact that the offence was a one off incident; the fact that the accused is a first offender; the fact that the accused is a young man with a good chance of rehabilitation; the fact that no excessive force was used to commit the offence; the conduct of the victim in breaking up the marriage the way she did; and the fact that no compensation was ever paid to the accused either by the victim or by her new lover, Mr. Benedict Dai, as required under custom.
    
19. A more important consideration I have taken into account is the fact that the two children of the marriage are in the custody and care of the accused's mother, an 81 year-old woman. The children are at school and one of them will be completing her primary education next year. The victim had started a new family of her own and, needless to say, the children now need the support of the accused. In that respect, any long custodial sentence imposed on the accused would not be in the interest of these two innocent children.
    
20. I have also considered whether or not this case has any aggravating feature. I note that the manner in which the offence was committed was more like an abduction style operation. The victim was forced to go into the taxi then driven to an isolated location where she was raped. This is an aggravating factor and, in my view, the only aggravating factor in this case.
    
21. Despite that, it is my view that the circumstances leading up to the commission of the offence and the mitigating factors referred to above are sufficient reasons to grant the accused a measure of leniency.
    
22. I must warn, however, that any leniency given to the accused in this case should not be viewed as a sign that the court would treat marital rape as less serious than other rape cases. Rape is always a very serious offence and this is reflected by the maximum sentence (life imprisonment) prescribed by law for the offence.
    
23. However, each case must be considered in the light of its own circumstances. In this case, it is my view that the appropriate sentence is one of 4 years imprisonment. I therefore sentence the accused to 4 years imprisonment.
    
24. I order that the time the accused had already spent in custody shall count as part of the 4 years sentence.
    

THE COURT

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^[1] [1985-1986] SILR 214
^[2] (1986) 1 WLR 349
^[3] [2012] SBHC 120; HCSI-CRC 128 of 2011.