Regina v Belo [2012] SBHC 88; HCSI CRC 09 of 2009 (10 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC NO. 9 OF 2009

REGINA

–V-

THOMAS KWAINA BELO

Date of Hearing: 2, 3, and 6 August 2012
Date of Sentence: 10 August 2012

Ms R Olutimayin& Ms M Suifa'asia for the Prosecution/Crown
Mr S Valenitabua & Mr M Holara for the Defendant

SENTENCE
PALLARAS J:

[1] You have been convicted of raping Regina Ologwalo ("the victim") on the 29th July, 2008 at Vura 3 in Honiara, contrary to Section 136 of the Penal Code. At the time of the offence the complainant was 15 years of age and had significant physical and psychological handicaps. As close as you can estimate your age, you are somewhere between 50 and 60 years old.

[2] The victim was not only a relatively young child at the time of the offence, but to your knowledge she was also a particularly vulnerable child. She had suffered from meningitis from the age of 8 months, she suffered from cerebral palsy and often had fits. Due to her state of health she has never been able to attend school. Her physical and mental state and condition, obvious to all who saw her in court, was indeed pitiable.

[3] You preyed on a truly helpless girl in circumstances where you knew that she would be without the protection of her mother, her aged and ill grand-mother would be behind a closed door and some distance away in her bedroom and you contrived to have the only remaining adult in the house, PW5, go off to the shop under protest on an invented errand.

[4] What is available to be said by way of mitigation has been ably said by your counsel Mr Valenitabua and I take into account the submissions that he has made. I particularly not that you are a man of no previous convictions, that you have the support of a large family interested in your welfare, that you are a regular church goer and also that you have sought to work wherever you can find it. Significantly, it has taken almost four years for this case to come to trial through no fault of yours nor, as it is said, of the prosecution.

[5] Rape is always a crime of violence. It need not be violence sufficient to cause physical injury to the victim but it cannot be committed without sufficient physical or psychological force to overcome the resistance and the will of the victim. Fortunately other than severe soreness to her breasts and vagina, the victim did not suffer from any other physical injury. That would suggest that the force used by you was not severe. However, little force would have been required to physically overcome the will of the victim who was clearly in a weakened and vulnerable state. It is clear that you used whatever force was necessary to satisfy your sexual urges.

[6] It is clear too, that while fortunate to escape serious physical injury, the victim has a clear recollection of the events which you put her through and, given the medical evidence before me, is likely to retain those memories long term.

[7] The age discrepancy is significant. On the shortest estimate it is a difference of 35 years. The court has a duty to protect young children from being preyed upon by older men such as you. It can seek to do that by passing sentences that truly reflect the community's abhorrence of sexual attacks on its children and which carry with them appropriate personal and general deterrence to remind other potentially like-minded offenders that this cruelty will not be tolerated and that women of all ages, have a right to be treated with dignity and respect.

[8] You were a well-known and trusted friend of the family. You had visited the house often and when PW5 went to the shop at your insistence, she expected that she was leaving the victim in the care of a trusted friend. You broke that trust. You took advantage of the situation that you found yourself in and had contrived to create.

[9] I turn to the issue of compensation. This has played a minor part in this case. I accept that shell money and $200 cash was paid to the victim's mother by your family on the night of the offence. It was prompt and no doubt motivated by a desire to restore peace and harmony between the families and also to protect against your name being disparaged.

[10] Courts in this country have clearly given credit for such payments in assessing sentence and in R V Asuana[1], Ward CJ stated that custom compensation has always been regarded as important for restoring peace and harmony in the communities.

[11] His Lordship also said;

"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".

[12] This view was adapted in R V Frank Kyio[2], 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".

[13] The evidence before me in this case indicates that you knew nothing of your family's intention to pay compensation, you were angry when you found out that they had done so and that your adopted son has since sought to have the compensation returned to your family.

[14] It is clear therefore that the evidence cannot support any suggestion that you have indicated remorse or contrition for your crime by the payment of compensation. You were not even aware that it had been paid.

[15] I do not find the evidence relating to compensation to be in any sense mitigation of the crime.

Sentence

[16] The offence of rape carries a maximum sentence of life imprisonment. There is no doubt that the penalty reflects that the community and the law regard it as one of the most serious of all criminal offences.

[17] However, in the case of sentencing for rape, each offence has to be assessed on the particular facts that pertain to it. The courts see many variations in factual scenarios that lead ultimately to a conviction for rape. Sentences must take these variations into account and properly reflect the circumstances of a particular case before the court.

[18] That is not to say that regard should not be had to precedent particularly when starting points have been judicially pronounced upon. But each case is unique and a sentence must be fashioned to suit the instant case.

[19] In the case of Ligiau & Dori[3], His Lordship Ward CJ adopted the views of Lord Lane in R V Billam[4]as a guiding principle in considering tariff in the offence of rape. In that case it was said that the starting point for rape committed by an adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case. Where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years. The crime should be treated as aggravated where any of the following factors are present: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. 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.

[20] In the present contested case, the significant features of aggravation mentioned call for a higher starting point than 5 years. I find those aggravating factors to be the very young age of the victim, the great difference in ages between the victim and the accused, the personal circumstances of the victim which were known to the accused to make her particularly vulnerable and helpless, the degree of contrivance shown by the accused in helping to create for himself the opportunity to commit the crime, the fact that the crime was committed when the victim was ill and left in the care of the accused as a trusted family friend.

[21] You were a trusted friend of the family into whose care the victim was entrusted. You abused that trust and the relationship with the family.

[22] I find that you contrived the circumstances in which you could commit the offence by sending PW5 away from the house in the full knowledge that the victim was inside the house, unprotected and uniquely vulnerable.

[23] As found there was a very significant age difference between you and the victim who was only 15 years of age at the time of the rape.

[24] I also regard as a circumstance of aggravation the fact that you were aware of and took advantage of the physical and psychological disabilities of the victim knowing that she was effectively helpless to resist you.

[25] These are all, individually and collectively, significant features of aggravation of such gravamen as to call for a higher starting point than five years than that described in the case of Ligiau & Dori.

[26] In my judgment, an appropriate starting point is 8 years imprisonment.

[27] I take into consideration the following factors in mitigation. You are a man with good antecedents, you have no previous convictions, you have many family members who support you and are concerned for you, you are a regular church goer and also that you have sought to work wherever you can find it. I also take into account that it is agreed between the parties that it has taken almost four years for this case to come to trial.

[28] It is a great pity that a man of your previous good character and family background should now find himself standing before the court as a convicted rapist. However, as I have said, these Courts have been entrusted with the heavy responsibility of enforcing the laws of the land in a manner that will not only protect the vulnerable members of our society from offences such as this, but also to pass such sentences as will act as appropriate specific deterrence for you against ever repeating this conduct and also to act as a general deterrence to any other like-minded potential offenders.

[29] Taking all of the aggravating and mitigating factors into account together with the helpful submissions of both counsel and the authorities to which they referred, I regard an appropriate sentence in the circumstance of this case to be six years.

[30] It is the Order of this Court that you be imprisoned for six years.

Dated this 10th day of August 2012.

THE COURT

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^[1] [1990] SBHC 57
^[2] HCSI-CRAC 259 of 2004
^[3] [1985-1986] S 7LR 214
^[4] [1986] 1 WLR 349