R v Taurikeni - Sentence [2012] SBHC 31; HCSI-CRC 151 of 2011 (29 March 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Criminal Case No. 151 of 2011.

R

V

DAVID TAURIKENI.

Hearing Dates: 26/3 – 27/3/2012.
Date of Sentence: 29th March, 2012.

For the Crown: Ms Taeburi and Ms Olutimayin
For the Accused: Mr. Galo and Mr. Osea

SENTENCE

Faukona J: The accused David Taurikeni is an adult of 27 years at the time of offending and comes from Maniaha Village, East Are Are, in the Malaita Province.

2. The accused pleads guilty to one count of Rape contrary to Section 137 of the Penal Code, and has been convicted accordingly. The facts of the case have been agreed upon on the face of it. What left now is a matter for the Court to consider the circumstance surrounding the commission of the offence, and an appropriate sentence and tariff to impose. To arrive at an appropriate sentence require balancing of the aggravating and mitigating factors in a given circumstance. There is no fix formula to apply or comply with, however, the Court is given a broad perspective to exercise its discretion reasonably.

3. The brief facts are that the victim and her grandmother Teresia Suere were returning from Masupa village after collecting some goods sent from Honiara on MV Small Mala; on 20th October 2010. On their way home they decided to provide a lift for the accused at a place called Arekao. As they continued on they stopped at the entrance of Maniaha passage to collect some sea shells. Whilst complainant was busy collecting shells the accused suddenly hit her on her back. She fell to the ground unconscious. The accused held her neck and pushed her down at the mangrove tree three times. Eventually he squeezed her neck and laid her down. The complainant fights her way and struggled. At the same time cried out for her grandmother for assistance. He eventually overpowered her and had sexual intercourse with her without her consent.

4. Whilst acknowledging the facts, the Defence Counsel submits that the state of mind the accused in, was attributed to high intoxication of alcohol; thus distorted his mind from being conscious in making a right decision, which eventually find himself confronted with the Law.

Circumstances of offending:

5. The offence was committed in the presence of the elderly grandmother who was close by. Instead of appreciating the lift and assistance, offered by the victim and her grandmother, the accused being heavily influenced by alcohol ignored it. Out of his selfish desire and self-imposed unsound mind, carry out his immoral desire to have sex with the victim without her consent.

6. Influence of alcohol which said to have discourse the accused from acting decently cannot be accepted. It is a self-inflicted cause which the accused himself must be answerable to when the question does arise in the court of law.

7. Whilst it is agreed that the offending appears to be unplanned and without being armed, I agreed with the Crown submissions that the accused has taken advantage of the vulnerability of the complainant and her aged grandmother to commit the offence.
   

8. Aggravating factors:

Age disparity.

8. Age disparity is an aggravating factor relies on by the Crown. The victim was 16 years and the accused was 27 years at the time of offending. 16 years according to the Crown is a young age. Whilst that can be accepted, it fall parallel to the case of R V Leddley Maewanusi,[1] but has distinguishing effect from the case of R V Ligiau and Dori[2] in regards to ages, and approach.
   

Use of force:

9. The second aggravating factor is that the accused used force to subdue the complainant. The facts reveal the accused apply excessive force to overpower the victim. He hit her back which she fell unconscious. Then he gripped her neck and squeezed it and pushed her down at a mangrove tree three times. She fought her way out and struggled but in vain. There was no assistance. The old age grandmother, though within reach could offer no help. She was overpowered eventually.

10. The medical report attached to the facts reveals the climax of the accused behaviour. It summed it all the experience and the suffering the victim has endured. It reflected violence and force had been resort to excessively to subdue the victim.

Fear and shock:

11. The third aggravating factor identified by the Crown Counsel is fear and shock experienced by the victim. Though deeper experience cannot fully describe the victim's feelings and the state of mind experienced. Even the medical report cannot fully put in perspective, as near as possible, the experience the victim had because the report was made ten days after the incident.

12. This Court is aware that the victim had developed fear, pain, physical and psychological suffering after the incident.

13. In the case of R V Niulifia[3], the Court of Appeal considered the second ground of appeal which relates to the victim's fear. The Court said;

"The fear referred to by the sentencing judge in this case relates to the victim being taken away by force from the company of her friends. This cannot be described as being inherent in the offence of rape. It is a finding that the judge was entitled to make in the circumstances of this particular offence and we do not see reason to disagree with that finding. It was and should properly be regarded as a factor aggravating this offence."

14. In this Case the victim began to experience fear of the attitude of the accused whilst travelling in the canoe. He sang songs and uttered words which to the victim had some negative implications. Not only that but the violent behaviour the accused resort to in overpowering the victim cannot be denied as causing fear. It's a frightening experience that will linger and haunt the mind of the victim for the rest of her life.

15. Not only that the victim suffered fear, but physical pain as well. Medical report, though made ten days after the incident, revealed that the victim complained of pain in the muscles of her tights, neck, ribs, backbone and two hands. There were marks of scar and bruising on muscles around her neck, hands and her tight was black as bruising. The victim also complained of abdominal pain. A speculum examination was conducted and the result was that the cervix has eroded, bleeding and appeared inflamed. Such finding confirmed there had been forced penetrated sex to the victim.

16. In R V Liqiau and Dori[4] Ward CJ (as he was then) stated.

"In rape cases the physical effect on the victim is of special seriousness and is considered an aggravating factor".

17. The physical pain suffered was a result of the act of violence by the accused in order to fulfil his ego by having a force penetrated sex against the will of the victim. In the same case His Lordship continued and stated;

"Rape ... is an offence of violence ... and is likely to cause, more than almost any other offence, serious and long lasting harm to the victim..."

The mitigating features:

18. A number of mitigating features are identified and will be considered in this case.

Plea of guilty

19. So much have been said in respect to aggravating factors. What else is available on behalf of the accused to be placed on the equilibrium to balance out the magnitude of the crime? The accused has entered a plea of guilty at first instance. It is a clear indication of remorse and contrition. In so doing the accused accepts his responsibility as being morally wrong and prepare to accept penalty for his action. His plea of guilt saves everyone's time, government resources, and a lengthy trial. It also avoids the victim the hustle and the trauma narrating her experience in a public Court which may embarrass her dignity.

20. In Ligiau and Dori (supra) the court emphasized that, "in such case as this a plea of guilty will reduce the sentence considerably." As a result the court makes particular allowance for plea of guilty.

21. I am inclining to apply the same approach in this case that plea of guilty at first instance must attract some discount.

A young man without previous conviction:

22. At the time of offending the accused was 27 years of age, now he is 29. He has good standing past criminal record with no previous conviction. That has been taken into account as well.

23. The accused had been very cooperative with Police initially. That cooperation was diminished when he could not answer to bail as required. He was then arrested and placed in custody until now.

Reconciliation/Compensation:

24 I accept the fact that $5,000.00 cash with two pigs valued of $2,000.00 was paid to the victim's family. The families have now living peacefully in the village. In R V Asuana[5], Ward CJ stated that custom compensation has always been regarded as important for restoring peace and harmony in the communities. And the Court's should give credit for such payment in assessing the sentence.

25. However, His Lordship continues to state;

"Any custom compensation must be considered by the Court in assessing as a mitigating factor but it is limited to its value. The Court must avoid attaching such weight to it that it appears to be a means of subsequent buying you out of trouble...The true value of such payment in terms of mitigation may show genuine contrition".

This view was adapted in R V Frank Kyio[6], where Palmer CJ stated,

"I accept customary payment of compensation have a place in the culture of our community. They do not annul the offence or the penalty prescribed under the Penal Code, but they do towards mitigation".

26. The approach as it is, that the payment of custom compensation and reconciliation is a common practice wide enough to include all the communities in Solomon Islands. It has long been recognized by the Courts as a consideration in terms of mitigation towards sentencing. However, caution must be taken that such custom payment, do not intend to buy oneself out of trouble, at the same time limited in its value

27. Where the value of compensation is extravagantly high its intention has to be assessed. In this case I consider that custom compensation and reconciliation had been paid and done and plays some role in considering the mitigating features. The value may be too high; however, it was accepted to restore back good relationship, peace and harmony between the families.

Personal mitigating features:

28. The accused is a married man with two children. The problem he has created has been settled with his wife in Are Are traditional manner. Whatever the nature of tradition may be is not disclosed, but the wife has accepted his apology and their relationship have now been restored. The wife has no formal employment but rely on the accused engagement in bulk-bettle-nut marketing to support his family. Accused will continue this business into the future.

29. On the outset, Ligiau and Dori (Supre) case attributed that such personal features must have less effect on the sentence. If the accused is concerned about his family the best he can do is placed them as first priority in life, acknowledging the fact that his wife has no formal employment and two children to support. If that be so, the accused would not have indulged in drinking alcohol to a state of incapacity to make a right decision. He may now regret for what he had done, but that has come too late. He had set his priorities wrong. What he did bring shame and despair to his own family. Perhaps he would now learn his mistake after this Court.

Sentencing Tariffs

30. A number of case authorities have been cited by both counsels which give guidelines in considering the tariff. The case of Liqiau and Dori (Supre), His Lordship Ward CJ adapted the views of Lord Lane in R V Billam,[7] as a guiding principle in considering tariff in the offence of rape, which states;

"For rape committed by an adult without any aggravating or mitigating features, a figure of five should be taken as the starting point in a contested case.

31. The principle guidelines as outline in full in the above case are a general authority in sexual offences. Counsels have cited a number of Solomon Islands Cases that refer to, accepted and adopted the guidelines.

32. In this Case the charge is not contested. There was no trial held. And there present aggravating and mitigating features make it slightly different.

33. Apparently the guidelines indeed form the basis of determining the starting point in any given circumstance. In this Case that should definitely below five years and I think four years is an appropriate starting point to work on. Taking into account plea of guilty, no prior conviction, no weapon was used, offending was not pre-meditated and the fact that compensation has been paid and reconciliation has been done.

34. However, the accused had used force that is excessive which cannot be measured nicely to a degree a drunken man would use because he was totally influence by alcohol. The result of his actions is measured by the medical report in which the victim had suffered physical and psychological pain, and fear with forced penetrated sex.

35. Where alcohol is excused as an element prompting violence, has to be rejected on its face value. It is a serious matter in any criminal culpability, more so in sexual offences. It is considered as an aggravating feature. If alcohol is to be blamed for his actions; it would be in the best interest of himself and his family that he quits.

36. I noted the offence was committed in the presence of the elderly grandmother, a culturally disrespect to the old. It shows the accused did not care, his desire to fulfil his own selfish ego take precedent over anything else.

37. The victim is quite young of sixteen years of age and the effect of what had been done will linger on for years to come.

38. This sentence will reflect the need for specific and general deterrence. It aims at ensuring the accused learn from his past mistake and cease from indulging in violence of this nature, especially to women and girls. At the same time sends clear message to men folk who would like to abuse women or girls, that the Courts will not tolerate such behaviour.

39. Rape and sex crime has become too prevalent in this country. It would appear no one seem to take heed and become a law abiding citizen, though the message so often was sent in the past. Despite that I would reiterate again, that the time has up for women and girls in this country to be restored with liberty to move around doing their business freely and without being conscious of their security.

40. Having considered the mitigating features there should be a reduction from the working figure to 3 ½ years. When considering the seriousness of offending and the aggravating factors and the effect of the evil doing the figure should rise to tilt the scale in favour of aggravation and will of course accelerate beyond the starting point. I therefore impose a sentence of 5 years imprisonment.

Order of Court

1. 5 years imprisonment
2. To commence from 11th March 2011, minus 46 days the accused spent in custody.

The Court.

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^[1] [2010] SB HC 53; HCS4. CRC 384 of 2009 (17 August 2010).
^[2] [1d986] SBHC 15; [1985] – 1986] S& LR 214 (3 September 1986).
^[3] [2004]SBHC 127; HCSI – CRC 318 (November 2004).
^[4] Ibid 2.
^[5] [1990 SBHC 57.
^[6] HCSI – CRAC 259 of 2004
^[7] [1986] 1 WLR 349