Regina v Tarakamana [2012] SBHC 92; HCSI-CRC 77 of 2012 (22 August 2012)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

1.	Faukona J: The accused Mr Albert Tarakamana was charged for one count of Rape contrary to section 136 of the Penal Code. On 17^th July, 2012, the accused pleaded guilty to the charge and was entered accordingly.

	Agreed facts

2.	The agreed facts are that on 3^rd December, 2010, at Hauale village, West Guadalcanal. About twelve midday the victim was walking home after school. She was by herself. Her home was few kilometres away. On her way she met the accused who to her knowledge is her cousin brother and they live in the same village. When she met the accused he threatened to kill her; she was frightened then. The accused then held her hair tightly and pulled her into the nearby bushes. The victim shouted for assistance but no one was around. Whilst in the bush the accused forced her to remove her clothes but she refused. The accused then forced the victim to lie down, moved close to her and removed her clothes. All along the victim was afraid because the accused was armed.

3.	On the ground the victim was naked, frightened and a shame. The accused undressed himself, opened wide the victim’s legs with his hand and insert his penis into her vagina and had sex with her. The victim was crying when the accused had sex with her. When she was struggling in an attempt to free herself a person by the name of Bernard Sivo appeared and saw the accused on top of the victim having sex with her. Upon realising that, the accused stood up and escaped. The person Bernard Sivo approached the victim and told her to dress herself up and then both went home.

	The Law:

4.	The offence of rape is defined by section 136 of the Penal Code and the punishment for rape is life imprisonment pursuant to section 137 of the Penal Code. However, section 24 (2) provides a person liable to imprisonment for life or any other period be sentenced for any shorter term. The Court is given wide discretion to exercise and determine an appropriate penalty, See Johnson V Tariani per Sir Mari Kapi JA^[1]

5.	The guiding principles to consider when considering what sentence to impose is set out by Palmer CJ in Farsy V R,^[2] referring to what Lawton CJ said in R V Sergeant as retribution, deterrence, prevention and rehabilitation.

6.	As often, it is a difficult task to evaluate which of the theories should be achieved even if a judge applies a proper sentencing principles, how he is to arrive at an appropriate sentence. There is no fix formulae or mathematical method in arriving at the appropriate sentence.

7.	In determining an appropriate sentence, the Court must take into account the mitigating and aggravating factors; also other relevant factors as general and specific deterrence and hardship to the family of the offender etc.

	Aggravating factors

8.	It is accepted that this offence is serious. It is an offence of violence based on selfish disregard to rights and feelings of woman, and long lasting effect to the victim. It involves use of weapon, breach of trust where the victim is a close relative of the accused. At the time of the offence the victim was a student in grade 6 and was 14 years old. In contrast the accused who was age 28 meant age disparity is wide and she is much younger than the accused.

9.	At the time of offending the accused was armed, though the weapon was not physically use to threaten the victim. The fact that being in possession whilst committing an offence connotes a possibility of using it should circumstance arise. That draws conclusion that the victim gave in because of fear of being harmed. In R V Niulifia^[3] fear should be properly be regarded as a factor aggravating this offence.

10.	To certain degree some force was used though minimal, or just by use of words. Further, the effects of the act of sex without obtaining consent from the victim will have a long lasting trauma and shock on the victim for many years to come. In R v Ligiau^[4] the court held that 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.

11.	From the facts I could possibly draw that the offending was carefully planned. The accused knew the victim would come home by mid-day after school. He knew she would be by herself. He could have monitored the situation in the past because they are living in the same village. On the day of incident was the day he was preparing for. He ensured he had a weapon with him, seen as an element of threat, and indeed it was.

12.	In R V Ligiau and Dori^[5] it was pointed out that where one or more of those aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point. The starting point as expounded in that case is five years imprisonment for rape committed by an adult without any aggravating or mitigating features in a contested case.

13.	This case is not contested and there are mitigating and aggravating features present.

	Pleas of guilty:

14.	It has been perceived as practice of consistency upholds by the Courts that an accused who pleaded guilty may be granted some reduction on what would otherwise have been the proper sentence for the offence^[6]. Where a defendant is granted reduction on account of plea of guilty the percentage should be one quarter to one third of what would otherwise be the sentence, at the discretion of the sentencer^[7].

15.	In Qoloni v R^[8] Palmer CJ endorsed the reasoning contained in number of English and Australia authorities,

			“that mitigation is evidence of remorse and that the community is spared the expense of a contested trial. It also relevant that a victim has been spared the necessity of undergoing the painful procedure of giving evidence”

16.	The Court may elect to give no weight to plea and may not attract reduction in particular where there is no evidence of remorse and is entered in the eleventh hour. However, in whatever circumstance may, a plea of guilty is a mitigating factor and cannot cease to be so because of aggravating features. See also R V Funabana^[9]. As required a sentencing judge should explicitly state that a guilty pleas has been taken into account, and note that the utilitarian value of a plea to criminal justice system should generally assessed in the range of 10-25 percent discount.^[10]

17.	In Roni v R^[11] the Court of Appeal found that guilty plea without remorse does warrant a reduction, and Pitamama v R^[12] the Chief Justice observed that a guilty plea ought to be taken in account even in worst cases and approve reduction may be between one quarter or one third of what would otherwise have been the sentence.

18.	In Cameron v The Queen^[13] Kirby J noted that a plea of guilty at the last moment will ordinary attract smaller discount in sentence than one that is entered the first reasonable opportunity. To punish an accused who advice on late plea of guilty is risk and Kirby J describe it as “double injustice”.

19.	In R v Mostyn Ludawane,^[14] the court states that a plea of guilty on the second day of trial was recognised for both its utilitarian value and as evidence of remorse.

20.	These authorities support the principle a plea guilty has two components. One, it can be an indication of remorse, and secondly, it may have utilitarian value in terms of saving resources. In a particular case, a discount may be warranted for either or both components and can also be applicable in late guilty pleas.

21.	In this case the plea of guilty is timely. It’s not late, unusual or exceptional, but it’s normal. On the first day of trial Counsel for the accused offer a proposal to the Crown Counsel. Resuming on the next day after adjournment the accused entered a plea of guilty. I would say it is a plea of guilty at the first instance. There can be no doubt that the accused is entitled to some credit for the guilty plea. I have taken that into account as I would like to explicitly state.

22.	To add, reduction in sentence should be a catalyst as an encouragement or incentive for accused persons in the future cases to plead guilty. This incentive is critical in the efficient operation of the Court system. At the same time defence lawyers should able to advise their clients to expect reduction should they plead guilty. Failure to give credit for guilty plea might only encourage accused to indulge in tactic unnecessary and unreasonable. Pleading guilty is in the best interest of public, the Courts and all the stakeholders that a tedious and expensive trial is avoided. In this case the victim need not to give evidence and be cross examined a process that will for sure embarrass her.

	Personal and family circumstances:

23.	I have also noted that the accused is an uneducated twenty eight years old man. He is still single and comes from a family of eleven children. He is the sixth born. He co-operated fully during investigations and record of interview. He did no resist his arrest. He is a man of good character with no prior convictions and a clear Police record. I must give him credit for that.

24.	The accused has no formal employment but self employed by harvesting cocoa and beetle-nut and sell them in Honiara town.

25.	I am yet to accept prisoner who says he has changed his life whilst in prison by way of contrite repentance. Good percentage of discharged prisoners returns to their old ways of life not as committed Christians any more. Some even said that whilst in the village they involved in subsistence and earn money to support their families and school siblings. That has yet to come to realisation and I doubt young people these days even thought of that.

26.	I accept the accused’s show of genuine remorse. He was sorry for breaking the law, custom and wrong committed against Christian principles. With his past good character and show of remorse he has learned a powerful lesson from what he had done. He may have rehabilitated himself whilst in prison and changed his life style through praying or bible study. I am satisfied he has excellent prospect of rehabilitation.

27.	I noted the accused has promised not to repeat the same and abide by the laws. He is willing to advice young people how bad staying in Rove Prison. Hopefully he does it. He says his plan to marry soon and settle down. Perhaps that may be the right course before it’s too late.

	Reconciliation:

28.	I accept the fact that reconciliation between the accused and the family of the victim had been done. The accused’s father had given one live pig worth $1,000.00 and one string red shell money worth $600.00 and cash of $500.00. In the case of R v Asuana^[15], Ward CJ stated, “that custom compensation has always been regarded as important for restoring peace and harmony in the communities but warned that Court should avoid attaching such weigh to it that it appears to be a means of subsequent buying one out of trouble..... The true value of such payment in terms of mitigation may show genuine contrition.”

29.	This view was adopted in R v Frank Kyio^[16], 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”
30.	Custom compensation has long been recognized by the Courts as a consideration in terms of mitigation towards sentencing. In this case I think the accused is genuine enough. The compensation value was accepted to restore good relationship, peace and harmony between the families.

	Deterrence:

31.	Earlier I have agreed that the accused is a good prospective candidate for rehabilitation. However, the process is that that cannot take precedent over deterrence effect. I am obliged by law to reiterate again by sounding the same message that the sentence this Court will impose is aimed at ensuring it has a deterrent effect on the accused and any other likeminded person at large. Women and girls of this country would like to move around freely without being conscious of someone eyeing them as a prey.

32.	Menfolk in this country should now realize and well versed with the punishment attach to a convicted rapist or abusers of women. Anyone convicted of such offence is expected to face the full force of law and the Courts will not tolerate such behaviour.

	Sentencing tariffs:

33.	Counsels have referred to number of authorities which give guide lines in considering the appropriate tariff. In Ligiau and Dori^[17] His Lordship Ward CJ adopted the views of Lord Lane in R v Billan^[18]. “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”.

34.	This case is not contested but was committed by an adult with aggravating and mitigating features. Therefore the starting point definitely should below five years and I think four and half years is an appropriate starting point to work on. After considering all the aggravating factors the point should rise to seven and half years.

35.	What I am searching for is a rape of a school girl at least a teenager see R v Su’umania^[19]. That should be an initial and starting feature.

36.	After considering and taking into account, the pleas of guilty, no prior convictions, personal history, cooperation with Police, genuine remorse, good candidate for prospective rehabilitation and reconciliation where custom compensation was paid, there should be a discount from 7years.

37.	I noted the accused is a mature man and close relative of the victim. He is in a position of trust. He should be a model where the victim sought security and fortress. He disrespects his relative and put shame on himself and his family.

38.	The victim is a school girl and of tender age, 14 years old. Luckily for her she sustained no injuries; that could have caused catastrophic damage to her. Undoubtedly it cause shame, shock and trauma and lasting effect on her, and may of course delay her educational learning.

39.	The offence is a plan one as it seem. It did not happen in a spur of a moment. The accused seemed to have monitored the victim previously. It’s easy because they live in the same village. On that day the victim was entrapped and find herself a prey to the evil egotism of the accused.

40.	This sentence will reflect the need for deterrence in all aspect of it, hoping the accused learned from his past mistake, as well public at large. The offence of rape and abuse of women is becoming prevalent in this country. Though the deterrence effect so often pronounces in the past, it seems to fall on deaf ears. I would reiterate again here, that the Courts will not reluctant to stretch the punitive arm of the law to take its rightful role respectively.

41.	Having considered all the mitigating features the figure should be discounted from 7½ years. In considering all the aggravating and mitigating factors it appears that the most appropriate sentence is one of 5½ years. I therefore impose 5½ years imprisonment.

	Order of Court.

	1.	5½ years imprisonment.

	2.	Sentence to commence from the date the accused was arrested and kept in custody.

	The Court.

High Court of Solomon Islands

Regina v Tarakamana [2012] SBHC 92; HCSI-CRC 77 of 2012 (22 August 2012)