Regina v Chachia [2012] SBHC 145; HCSI-CRC 95 of 2012 (12 October 2012)

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Count 1	- Assault Causing Actual Bodily Harm, contrary to s.245 of the Penal Code

Count 2	- Rape, contrary to s.136 and s.137 of the Penal Code and

Count 3	- Criminal Trespass, contrary to s.189 (2) of the Penal Code

[1] Each of the offences were committed on 28 August, 2009 at Haleta Village, Central Big Ngella, against Nester Mudu, a 65 year old woman. At the time of the offences the accused was 21 years of age.

[2] At some time between 2am and 3am on 28 August, 2009 the accused approached the victim's house. The victim was known to the accused. He kicked open the door of the house and rushed inside. He began to beat the victim with his fists, punching her in the mouth, on her breast, on her shoulder, in her ribs and on her back. He extinguished the lamp burning in the house which then fell into darkness.

[3] He continued to assault the victim who tried to struggle with the accused and resist his violence. She resisted his attempts to lay her down but he continued to assault her and forced her down. As a result of this concerted beating the victim became unconscious. It was while she was unconscious that the accused raped the 65 year old woman.

[4] The victim regained consciousness shortly before the accused jumped over her and ran from the house, leaving the victim on the floor.

[5] The injuries inflicted by the accused included scratches and tenderness to the victim's back, scratches and a haematoma on her left arm, a haematoma on her upper lip, a swollen nasal bridge and bruising to both breasts. Internal examination revealed a tear to her urethra 1cm in length and 0.5cm in depth.

[6] The violence inflicted upon the victim by the accused in this vicious assault resulted in her being hospitalised for eight days on antibiotics and pain relief medication.

[7] Submissions made on the accused's behalf noted that he was 21 years old at the time of the offences, he was married with one child, he had no prior convictions, he assists in providing for his family and is remorseful for what he has done.

[8] I have also been told that the father of the accused has given $500 to the victim by way of reconciliation.

[9] Curiously, under the heading "Lack of Aggravating features" counsel then referred in her submissions to a list of aggravating features which were absent from the crimes. Those significant features of aggravation which were present were however not dealt with. While it is indeed a matter of relief that many other aggravating features were not present, it can hardly be argued that their absence in any way mitigates the offences, it simply does not add to the aggravating features which plainly do exist.

[11] The only room for any dispute about these features of aggravation might be said to be that if the rape was going to occur, then it may have been a blessing rather than a feature of aggravation that it occurred while the victim was unconscious. Whether that be so or not, this rape is attended by features of aggravation which make it particularly vicious, frightening and cruel.

[12] The Penal Code of Solomon Islands leaves no doubt as to the seriousness with which the offence of rape is regarded. Section 137 provides that a rapist is liable to imprisonment for life. While the maximum penalty is reserved for cases of the worst kind, the circumstances of this case make it one of extreme seriousness.

[13] Considering the extensive sentencing range available to the courts in rape cases, historically the courts may be said to have been merciful in their approach with sentences typically in the range of 2-5 years imprisonment. Cases like R v Ligua and Dori [1] have often been relied upon as establishing that in cases of rape without significant aggravating or mitigating features, consideration of the appropriate sentence should begin at 5 years imprisonment. In cases that are attended by significant aggravating features, the starting point was said to be "substantially higher".

[14] 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 the victim's life. Taking into account the guilty plea, a sentence of 6 years imprisonment was imposed. This was a decision taken 27 years ago.

[15] I have expressed the view in recent cases[2] that the prevalence, in unrelenting numbers, of rape offences coming before these courts is an epidemic which must elicit a reaction from the community and from the courts. There is a war being waged principally against the women and children in our midst and they have a right to expect that the institutions set up on their behalf to serve and protect them will do so. This must of course include the judiciary.

[16] Standards of punishment set in decades past are clearly failing to serve the community's just expectations first, that this sort of violent and degrading conduct will be appropriately punished and secondly, that the imposition of penalties should serve to better deter the commission of violent crimes such as rape as it is a significant raison d'être for the very existence of our sentencing regime. If what has been acceptable in the past to achieve these goals is no longer successful in doing so then the courts must be sensitive to that failure and adjust accordingly.

"... 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."

[18] Naturally one cannot prescribe a sentence that will fit all of the myriad permutations that occur in cases coming before this Court, but in so far as our common judicial heritage has accepted the adoption of indicative sentences to serve as guidelines or "starting points" that consider the individual factual matrices, then it is incumbent upon sentencing courts to ensure that those guidelines continue to remain relevant, contemporary and just.

[19] In my judgement, it is long past time when cases such as Ligiau[4], a decision handed down over a quarter of a century ago, when current circumstances are considered, can any longer make claim to relevance, contemporaneity or justice. That level of past sentencing practice runs the danger of making a mockery of the maximum penalty provided by the legislature and risks a serious erosion of confidence and faith in the sentencing process within the community at large.

[20] I fully recognise however that if sentencing practices are to change to reflect a recognition of the apparent contemporary ineffectiveness of sentencing benchmarks set so long ago, then they ought to do so gradually and incrementally. Adopting that approach, I would consider that an appropriate starting point in cases of rape without significant aggravating or mitigating features should be 7 years.

7) The effect on the victim including significant physical or psychological injury.

[22] While the above list is not intended to be comprehensive, in my judgment cases attended by any one or more of those features of aggravation should attract a starting point of 9-10 years imprisonment.

[23] The present case is not just an example of the commission of a serious offence. It is an offence which is serious not only by its very nature, but because it is aggravated by features of the accused's conduct which terrified the victim, inflicted suffering upon her by the use force over and above that which was required to rape this woman and took advantage of a victim who was elderly, helpless and no match for him physically. There are in short, significant multiple features of aggravation attending these crimes.

[24] It is difficult to imagine the terror that must have gripped the victim when the accused kicked in her door in the middle of the night and began to beat her. There was no warning that her peace and security were going to be so comprehensively disturbed. She had given no offence to the accused and did her best to repel him until she was rendered unconscious by his assault. It was an attack that was characterised by cowardice, cruelty and a lack of humanity. It was outrageous.

[25] The accused is still a young man and says that he is determined to change his ways. A person of his age still has a full opportunity to live a successful and fruitful life. His pleas of guilty to these charges have thankfully spared the victim the travail of testifying. He is to be given full credit for his pleas. I am satisfied that the guilty pleas do indicate a genuine remorse and I accept counsel's submission that the accused honestly regrets what he has done. He knows now that his actions are going to bring significant hardship upon his family. It is only regrettable that he did not consider this before he committed these crimes.

[26] While personal factors of the accused such as his age and previous clear record are offered as features of mitigation, I adopt the words of Ward CJ in Ligiau[5] 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."

[27] Upon conviction for this rape after trial, taking into consideration all of the aggravating features in the case, I would have imposed a sentence of 14 years imprisonment. However taking into account all the matters that were put to me on his behalf, and particularly taking into account his guilty pleas, in relation to the count of rape, Count 2, the accused is sentenced to a period of 10 years imprisonment, such sentence to begin as from 26 February, 2012.

[28] In respect of Count 1, assault causing actual bodily harm, the accused is sentenced to 18 months imprisonment.

[29] In respect of Count 3, criminal trespass, the accused is sentenced to 18 months imprisonment.

The sentence are to be served concurrently and are to begin as from 26 February 2012.

High Court of Solomon Islands

Regina v Chachia [2012] SBHC 145; HCSI-CRC 95 of 2012 (12 October 2012)