Regina v Freeman - Sentence [2012] SBHC 149; HCSI-CRC196 of 2011 (29 November 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 196 of 2011

REGINA

V

FREEMAN

Hearing Dates: October 24, 25, 26
Verdict Delivered: 14 November 2012
Sentence Delivered: 29 November 2012

Coram: Pallaras, J.
Crown: Mr. Kelesi
Defence: Mr. Fugui

Sentence

(Pallaras J):

1. I have already made comment in my verdict concerning your repugnant views about women. You are not to be sentenced because of your views but because of what you did to the Complainant and how you treated her because of them.
   
2. The Complainant hailed your taxi in the middle of a rain storm. She not only needed transport but was also no doubt happy to have found some shelter from the storm. She soon found herself in a storm of a quite different nature.
   
3. It was a situation from which she could not escape, could not free herself and could not obtain any help. You kept her in a speeding car, removed the locking mechanism from the front door, prevented her from opening the window and threatened to beat her if she resisted or failed to comply with your demands.
   
4. She was for several hours your captive during which time you raped her three times in your taxi near Henderson airport. It was an extreme example of a bully fuelled on beer, tormenting and intimidating a far weaker and helpless victim.
   
5. The fact that you held her against her will for such a long time is an extremely serious aspect of your crime. You even tried to prevent her from escaping from you at Rifle Range by keeping her bag in your car knowing, as you must have, that she had no money or telephone with her to help her in escaping from you.
   
6. The fact that you let her out of your taxi while you did your business with the taxi owner, yet still endeavoured to keep her under your control be keeping hold of her bag and possessions, is a further twist of cruelty. Her raised hopes of escaping from you when you let her out at the canteen were soon dashed when you kept her bag from her and by her realisation that she knew no-one there, did not know the area and had no money or telephone with her. Her state of distress at that stage, attested to by several witnesses, graphically illustrates the impact that your criminal conduct had on her.
   
7. Your treatment of the Complainant is difficult to comprehend until one considers your evidence in this trial. Your arrogance and obvious disdain for the Complainant was delivered with such an air of self-righteousness that you almost gave the impression that you felt justified in what you did because she was the "type" of girl who deserved to be picked up by you and wanted to be treated in that manner.
   
8. There seems to be little understanding abroad that this offence carries a maximum penalty of life imprisonment. This is the most severe penalty provided for in our criminal justice system. The unceasing numbers of offences of this kind which are coming before this Court in an avalanche suggests to me that the criminality of this offence and the severity of the penalty available upon conviction, is undervalued in the community.
   

That must change.

9. No civilised community can continue to tolerate the perpetual abuse of the rights of any sector of its society whether it be because of their race, their age, their sexuality, their colour or their gender. History is replete with examples of the tragedies that have occurred when men and women turn their faces away from the abuse of the rights of any minority or group.
   
10. In respect of rapes and sexual assaults the target group is not a minority but the majority. It consists of the women and children in our community, in our villages, in our towns and cities, in our schools, in our workplaces and in our streets. It is our neighbour's family, our friend's family, it is our family. It is our neighbour's daughter, our friend's daughter and it is our daughter. It cannot continue to be brushed under the carpet as someone else's problem for it is a problem which, to be clear, is with us every day of the week and it is a problem we all share.
    
11. Perhaps this lack of understanding is partly due to the role played by this Court in years past in delivering, when the maximum penalty is considered, comparatively lenient sentences. Perhaps potential offenders, if they have given any thought whatsoever to the penalty, have looked at many of the sentences imposed in past years and considered the risk worth taking.
    
12. If that is so, it represents a systemic failure in an essential element of our sentencing process. For sentencing theory has for centuries justified the imposition of custodial penalties partly on the basis that it was necessary for a community to see how seriously the law regards the commission of certain offences by virtue of the length of sentences imposed – there was to be an element of general deterrence in the composition of the sentence.
    
13. If the epidemic of serious sexual offending reveals anything, it must be that this element of the sentencing process is failing miserably.
    
14. Much, although not all, of the responsibility for this must rest with the Court. It is the responsibility of the Court to utilise the sentencing powers provided to it by the legislature, in a manner that properly meets the reasonable expectations of the community that the sentencing process will meet all of its proper aims, including that of general deterrence. The Courts must take their fair share of responsibility for what is happening in our community and they must respond appropriately.
    
15. That is why I indicated to counsel during submissions that, in my view, oft quoted cases such as R v Ligiu and Dori[1] and others decided in the last two decades of the 20th century, while they may have appropriately reflected good sentencing practice for times a quarter of a century ago, can no longer be regarded as doing so. I have indicated in several cases[2]that the starting point should be higher than the older cases suggested.
    
16. In this case I have noted that a serious feature of aggravation was the length of time that the Complainant was held prisoner by the accused.
17. Another significant aggravating feature is that the rape of the Complainant occurred not once but three times. It was accompanied with threats of violence while not particularly severe were made to achieve the result of a compliant victim and in that regard, they were successful.
    
18. There is also a significant age discrepancy between the Complainant and the accused. At the time of the offending the accused was 43 years old while the Complainant was 19 years old. While this is not as significant as if the Complainant had been a young child, there is still present the element of intimidation and control that a large adult male has over a teenage girl.
    
19. When citizens use taxis in their towns and cities, they board a car being driven by a complete stranger to them. They do this as an act of trust which they place in the driver. They trust that they will drive safely and within the speed limit, trust that they know where they are going and that they will deliver them safely to their chosen destination and they trust that they will treat them with courtesy and respect. The accused has breached all of these aspects of trust with the Complainant.
    
20. In mitigation, counsel for the accused has submitted that he has no previous convictions and is consequently of previous good character. It is said that he has a large family and that his wife, who is not well, is struggling to manage to care for the children. He is said to be remorseful over the fact that his incarceration may impact on the education of his children. (I note that the remorse is not said to be in relation to having committed the offences.) he is said to be suffering emotionally from the separation with his family.
    
21. I take all of the matters of mitigation raised by the accused's counsel into consideration when balancing up the competing sentencing elements. I also have regard to the features of aggravation discussed in this judgement.
    
22. This is a case attended by significant aggravation and while I have regard to the mitigatory features, it is long settled that matters personal to the accused in such cases often carry less weight than they otherwise might.
    
23. Taking all of those matters into account it is my judgement that an appropriate sentence in respect of each count of rape is imprisonment for 8 years.
    

Order:

1. The accused is sentenced to a period of 9 years imprisonment in respect of each of the three counts of rape.
   
2. The sentences are to be served concurrently.
   
3. The total sentence of 9 years is to be reduced by the amount of time already served in custody which by agreement, is 1 year and 74 days. That leaves the balance of the sentence of 7 years and 291 days to be served.
   

THE COURT

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^[1] [1986] SBHC
^[2] R v Belo CRC 9 of 2009; R v Supa CRC 76 of 2011; R v Chachia CRC 95 of 2012