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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)
CRC NO: CRC NO.: 63 of 2011
REGINA
- v –
Francis RAFITA
Date of Hearing: 9-11 October, 2012
Verdict Delivered: 25 October, 2012
Date of Sentence: 3 December, 2012
Ms L. Fineanganofo for the Prosecution
Mr M. Holara for the Accused
SENTENCE
1. On 25 October 2012 you were convicted after trial of 4 counts of indecent assault (contrary to s.141(1) of the Penal Code), two counts of attempted rape (contrary to s.138 of the Penal Code), and one count of rape (contrary to s.136 of the Penal Code). One of the counts of indecent assault related to your stepdaughter Mavis Tania LAIPO now aged 14 years, while the other six counts related to your stepdaughter Rita Marie FIONA now aged 15 years.
2. In your defence you attributed their grandmother Harriet TAUTU with having coached the Complainants in their evidence and you yourself gave evidence in which you asserted that both of your stepdaughters were lying and had made false accusations against you. You said however that from 2008 onwards you had become sexually attracted to Rita.
3. I rejected both your accusations against Mdm. TAUTU and your accusations of lying against your stepdaughters and convicted you on all charges.
4. There are several obvious aggravating features in this case. They include –
5. You have betrayed and abused the trust of all of your children as an adult, you have betrayed and abused the trust of all of your children as a parent, you have betrayed and abused your trust as a husband, you have betrayed and abused the trust placed in you by the community as a police officer sworn to uphold the law and to protect the defenceless children in our community. And you did it for years.
6. Instead of providing an environment of love, care and protection you inflicted on these two young girls years of terror and distress.
7. You had time to reflect, you had time to stop and think about what you were doing, you had time to try to heal the harm that you had done to the children and to your family, you had time to try to heal yourself. You chose to do none of those things. You chose instead to continue to terrorise these children with threats of physical violence. You chose to fill them with a perpetual dread of the time when you would again appear behind them and demand your sexual gratification. You chose to continue to humiliate and degrade these girls not once or twice, or for days or months, but for years. You have been the devil in their short lives and you have done so for reasons of selfish personal gratification.
8. No right thinking person, far less a parent, can ever comprehend how you could do such things to these girls. They looked to you for guidance, for sustenance and protection. Instead you gave them misery.
9. It has been put to me that your years of service to the community should be regarded as a mitigating factor. Even if that is so, it is to be significantly discounted by the fact that you were spending your time in service committing these offences against very young and defenceless children.
10. Nothing else has been put to me by way of mitigation and, in my view, that was a correct assessment by your counsel. These are serious offences aggravated by several significant features of aggravation with little by way of mitigation. A psychiatric report from Dr Paul Orotaloa indicates that you are not suffering from any psychiatric or psychological problem.
11. In any event while your personal factors such as your previous clear record may be offered as features of mitigation, I adopt the words of Ward CJ in R v Ligua and Dori [1] 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."
In the case of Chachia[2] I expressed the view that
".... in recent cases 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."
And
"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. "
And in the case of Soni[3]
"... 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.
........ In my judgment, it is long past time when cases such as Ligiau, 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.
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.
I would regard a case as aggravated if 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
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."
12. You are a prime example of how the crimes of rape, attempted rape and indecent assault are being committed in this community with impunity. Amazingly, you express surprise to Dr Orotaloa that this matter was brought to the attention of the police. You personify the way in which the application of the laws in relation to sexual offences have demonstrably failed to protect the weak, the vulnerable and the young in our community. You above all because as a police officer you committed these offences in the full knowledge of the penalties that those who behaved in this way were liable to have imposed. Yet you persisted.
13. This case undoubtedly contains many of the aggravating features I have referred to and to which list can be added the period of time over which the victim has been subjected to this criminal conduct and the fact that there are two victims. There are in short, significant multiple features of aggravation attending these crimes.
14. After taking all of the evidence and the matters put to me by counsel into account, I have assessed the criminality of each offence for which you have been convicted and have arrived at the following sentences.
Count 1 – 2 years imprisonment
Count 2 – 4 years imprisonment
Count 3 – 4 years imprisonment
Count 4 – 5 years imprisonment
Count 5 – 5 years imprisonment
Count 6 – 14 years imprisonment
Count 7 – 2 years imprisonment
15. In some respects the later offences are also aggravated by the fact that you had committed earlier offences of a similar nature. Your pattern of offending became more serious in that the offending itself became more serious and extended to a second victim.
16. Given that these events were offences committed on different days separated by time over a number of years, I can see no good reason for ordering concurrent sentences. The sentences would in those circumstances, ordinarily be ordered to be served consecutively. Such an order would result in a total head sentence of 36 years.
17. I am conscious that this would be a crushing sentence if fully imposed and that in accordance with the totality principle, I ought to reduce it to avoid such an outcome. The method by which this result can be achieved has been the subject of consideration in the High Court of Australia in the case of Mill v R[4] in which the Court said:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
The authorities establish that the totality principle of sentencing requires a sentencing judge to ensure that the aggregation of the sentences imposed for each offence is reflective of a just and appropriate measure of the total criminality involved.
18. In Director of Public Prosecutions v Grabovac[5], the Court discussed the approach to adopt when sentencing for multiple offences so as to avoid the imposition of what would otherwise be a crushing sentence thus:
"In general, a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, ... where practicable where applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence."
19. If the result of imposing appropriate sentences for a series of offences produces an outcome which is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In this regard I am guided by the preference expressed by the High Court of Australia in Mill and will adapt the orders made as to cumulation and concurrency.
20. I therefore order that each of the sentences imposed in relation to Counts 1-7 are to be served concurrently, making an effective head sentence of 14 years imprisonment. The sentence is to be backdated to commence on the 27 August, 2012 to take into account time spent in custody.
THE COURT
[1] [1986] SBHC 15, at 215
[2] R v Chachia CRC NO. 95 of 2012
[3] R v Soni [2011] SBHC 128
[4] [1988] HCA 70; [1988] 166 CLR 59 at 62-3; 83 ALR 1.
[5] [1998] 1 VR 664 at 680
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