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Regina v Aubasi [2013] SBHC 1; HCSI-CRC 76 of 2010 (18 January 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

REGINA

REDLEY AUBASI

Date of Hearing: 4th December 2012
Date of Judgment: 18th January 2013

Ms. F. Taeburi for the Crown.
Mr. E. Cade for the accused.

SENTENCE

The charges:

By an amended information filed on 1st November 2012, the accused, Redley Aubasi, was charged with the following offences: rape (contrary to section 36 of the Penal Code), indecent assault (contrary to section 141(1) of the Penal Code), robbery (contrary to section 293(1)(a) of the Penal Code), and, common assault (contrary to section 244 of the Penal Code).
All the offences were committed at night on 1st October 2009 in Honiara at St. Agnes Resthouse ("Resthouse"), a residential compound jointly owned by the Church of Melanesia ("Church") and its organisation known as Mothers' Union.
As regards the rape charge, it is said that the accused raped Beverlyn Anne Hendley ("Beverlyn"). As regards the indecent assault charge, it is said that the accused indecently assaulted Beverlyn. As regards the robbery charge, it is said that the accused robbed Beverlyn and one, Gail Orchard ("Gail"). As regards the common assault charge, it is said that the accused assaulted Patrick Samani who was a security guard employed at the Resthouse at the time.
The accused was arraigned on 16th November 2012 and pleaded guilty to all 4 counts and was accordingly convicted. He now appears for sentence.

Agreed facts:

The agreed facts are as follows.
Beverlyn and Gail are Australian citizens who have previously worked as volunteers with the Church here in Solomon Islands.
In September 2009, the Church had invited Beverlyn and Gail to attend a "Girl Friendly Society Blessing Banner" ceremony in Honiara. Beverlyn was then 68 years old while Gail was 54.
Both had accepted the invitation and arrived in Honiara on 22nd September 2009 to attend the ceremony. Both were accommodated in the same room at the Resthouse. The room had 2 doors, one at the front and one at the back.
The ceremony ended on 30th September 2009 and Beverlyn and Gail were to return to Australia the next day (1st October 2009).
In the evening of 30th September 2009, both women had retired to bed at around 9.30 pm. It is not known whether or not they had locked the doors of their room. Gail was experiencing back ache so she was not able to sleep well that night.
At about 4.30 am in the morning (on 1st October 2009), she heard the back door of their room being opened. She saw the accused entering the room. He was holding a long plastic pipe in one hand while an iron chain was wrapped around his other hand.
Gail tried to persuade the accused to leave the room but to no avail. By then Beverlyn had become awaken by the noise.
Both women then told the accused to leave the room but the accused refused and threatened to kill them both. He locked both doors of the room and told the two women to sit down on their beds.
Beverlyn walked to the door to call for help but the accused pushed her and she fell onto the floor. He then demanded that the two women to give him money. They told him they had no money.
He took their handbags and searched the bags for money. He found a mobile phone in Gail's handbag and took it. He also took a wallet containing $150.00 (Australian dollars), a driver's license and several credit cards from Gail's handbag.
He then came to the two women and pulled out his penis from his trousers. He told Beverlyn to suck his penis. She refused. Instead she took the accused's penis in her hand and masturbated it in the hope that the accused would be satisfied and desist from any further moves to have her suck his penis.
The accused did not desist. He pushed Beverlyn down onto the bed and pulled out her pyjamas. He then pushed his penis into her vagina and had sexual intercourse with her without her consent in the presence of Gail who was sitting beside Beverlyn. Beverlyn could not resist because she was fearful of him.
When the accused got up from Beverlyn, he threatened to rape Gail but was told by Beverlyn to leave. Gail then comforted Beverlyn.
The accused then asked both women for forgiveness. Beverlyn told him that they would forgive him but he had to ask God for forgiveness as well. He then kissed Beverlyn and pushed his tongue into her mouth. After that he stretched out his hand towards them in a high-five sign and then left the room.
Gail then left and informed the security guard, Patrick Samani, about the intrusion into their room while Beverlyn went to have her shower. Samani went to the main road outside the Resthouse and there he saw a group of men, one of whom had an iron chain. Clearly, this was the accused.
Samani stopped a police vehicle and reported the matter to the police. When the police approached the group, the accused came towards Samani and punched him on the jaws and then escaped.
After the incident, the accused went to the Point Cruz area and other locations and tried to sell Gail's mobile phone but without success. He was later arrested and taken into custody.
During investigations, the accused consented to DNA buccal swaps taken on him. The accused's clothes as well as the victim's clothes and other materials, including the buccal swaps, were sent to Australia for testing. The tests found that the DNA found on all the materials had a very high degree of correlation with the accused's DNA.
Beverlyn was medically examined in Australia on the 6th October 2009. Her examination revealed bruises on her chest, shoulder and on her left inner thighs as well as on her hips. The examination also showed tenderness on the lower labia majora.

Sentence for rape:

The maximum sentence prescribed for rape is life imprisonment. This is a clear indication of how the legislators view the seriousness of the offence of rape. While that may be so, it has been said time and again that the maximum sentence is reserved only for the worst kind of cases.
Although this case may not be regarded as of the worst kind, it has aggravating features which bring it close to the borders of the worst kind of case. I will touch on these aggravating features later.
For the purpose of sentencing in this case, it is appropriate to indicate the range of sentences for rape cases imposed by this court in the past.
The leading case is R v Ligiau & Dori[1] ("Ligiau ") where the accused was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment. That sentence was handed down in September 1986. That was approximately 26 years ago.
In that case, 5 years was set as the starting point for a contested rape case committed by an adult without any aggravating or mitigating features.
However, it was said in that case that where the rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years.
It was also said in that case that where any one or more of these aggravating features are present, that is to say, (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; or, (8) where the effect upon the victim, whether physical or mental, is of special seriousness, the figure should be substantially higher than the figure suggested as the starting point.
Since Ligiau, rape cases have continued to come before this court in growing numbers. Counsels have referred to some of these cases in their written submissions but there are many more to which they have not referred.
I need not refer to those cases specifically. They can be found in the Solomon Island reported cases posted on the Paclii website. Suffice to say that I have considered the penalties imposed in respect of those past rape cases and found that the penalties ranged from 3 to 8 years and most, if not all, were based on the bench mark set down in Ligiau.
In Regina v Soni[2] ("Soni"), Justice Pallaras had re-visited the guidelines laid down in Ligiau and suggested an increase in the sentencing range set down in that case. He suggested that for a contested rape case committed by an adult without any aggravating or mitigating features, the starting point should be 7 years and for cases where one or more of the aggravating features similar to those mentioned in Ligiau are present, the starting point should be 9 to 10 years.
His lordship further said that the sentencing bench marks set down in Ligiau are not achieving their intended deterrent effect and it is time for the courts to better utilize the scope of the maximum sentence made available to them in a way that better reflect current sentencing and community needs[3].
I cannot agree more with his lordship.
For the last 25 years after Ligiau, there appears to be no reported case in which serious judicial consideration was given to the bench marks set down in that case.
It could be that the bench marks were generally regarded as appropriate at the time they were laid down. However, sentencing ranges should not be static. They should be capable of change in the light of social, economic and cultural developments.
It cannot be denied that there is now a growing public demand in this country to stop violence against women. The number of public marches taking place in the streets of Honiara and other provincial centres on Women's Day in recent years calling for a stop to violence against women is testimony to that public demand.
The powers of the court are exercised on behalf of the people[4] and, in exercising these powers, the court would do well to heed the call of the people and impose sentences that reflect the seriousness of crimes against women as now perceived by the public in these modern times.
In the present case, there are a number of aggravating features which have brought this case close to the borders of the worst kind of case.
First and foremost is the fact that the victim is a very old woman. She was 68 years old at the time the offence. There can be no doubt whatsoever that she had experienced serious trauma as a result of the incident.
Second is the fact that the accused was in possession of weapons – a plastic pipe and a chain. Although there is no evidence that he had threatened the victim with these weapons, there is evidence that he had threatened to kill the victim and Gail. One can imagine the fear created in these two helpless elderly women at the sight of the accused entering their sleeping room at night with these weapons in his hands.
Third is that the accused has previous convictions for other serious offences of a sexual nature for which he was sentenced to jail terms. It seems that he has not learned his lessons.
Fourth is the fact that Beverlyn was raped in the presence of her other roommate, Gail. This must have been very humiliating for Beverlyn. The agreed facts confirm that Beverlyn had to be comforted by Gail after the incident.
Fifth is the fact that Beverlyn had received injuries to her body as a result of the incident.
Sixth is the fact that the accused had broken into, and entered, a residential building at night when he committed the offence. Women are entitled to feel a sense of security in their own homes and bedrooms at night.
Seventh is the emotional trauma inflicted upon Beverlyn who was 68 years old at the time of the offence.
These aggravating factors have brought this case within the category of cases which deserve a substantially higher starting point as pointed out in Ligiau, or, to be more specific, which deserve a starting point of 9 to 10 years as suggested in Soni.
In the light of these aggravating features, it is my view that the appropriate starting point in this case is 10 years imprisonment.
However, there are significant mitigating factors in this case for which the accused is entitled to a reduction in this 10 year sentence, that is, the fact that the accused had pleaded guilty to the charge and had co-operated with the police during investigations.
In pleading guilty, the accused had avoided a trial which would have otherwise been very expensive for the state and embarrassing and traumatic for the victims.
For this guilty plea and co-operation with the police, I give him a reduction of 12 months.
In addition, a guilty plea is also a sign of remorse and for that, the accused should also be given credit by way of a further reduction in the sentence. I shall reduce the sentence by a further 6 months.
Unfortunately, I cannot think of anymore mitigating factor which would reduce the sentence further. This is not a case where the accused is a first offender. He has a very bad criminal record showing 19 criminal convictions for various offences from 2001 to 2008.
It has been submitted by counsel for the accused that the circumstances in which the offence had been committed must also be taken into account. Counsel submits that the offence was unplanned; that the accused had found himself in bad company which had created an environment for the commission of the offence; and, that the accused did not have a stable family and had nowhere to live.
In other words, this offence is the result of the accused's environment and upbringing. One wonders how a reduction in sentence would assist in addressing these personal problems.
I do not think he is entitled to any leniency in these circumstances. He has freely chosen to commit these offences. He cannot use the environment and his upbringing as a scapegoat for his wrongdoing. These are personal circumstances which must have less effect on sentence[5].
Hence, for the offence of rape, the accused is sentenced to 8½ years imprisonment.

Indecent assault:

The accused had also pleaded guilty to indecent assault on Beverlyn.
According to the agreed facts, the accused kissed Beverlyn and pushed his tongue into her mouth. This was the conduct that constituted the offence of indecent assault.
The maximum sentence for indecent assault is 5 years imprisonment[6]. The accused has 2 previous convictions for this same offence. These convictions were made in 2001 and 2004. He was given custodial sentences of 1 month and 6 months respectively.
This case shows that those previous custodial sentences have not deterred the accused at all. A harsher sentence is therefore necessary in this case. The public must be protected from such people as this accused.
In my view, a sentence of 1½ years is appropriate in the circumstances of this case. However, the accused has pleaded guilty and is therefore entitled to a measure of leniency.
I shall therefore reduce this 1½ year sentence to one of 1 year imprisonment. I therefore sentence the accused to 1 year imprisonment for the offence of indecent assault committed on Beverlyn.

Robbery:

The accused has also pleaded guilty to armed robbery of Beverlyn and Gail contrary to section 293(1)(a) of the Penal Code. That offence carries a maximum sentence of life imprisonment, which is a reflection of the view of the legislators as to the seriousness of the offence.
According to the agreed facts, the accused entered the room at night where the victims, Beverlyn and Gail, were sleeping. The victims told the accused to leave the room but the accused refused and threatened to kill them. He had a long plastic pipe and an iron chain in his hands at that time. He locked both doors of the room and told the victims to sit down. He then demanded that the victims give him money but they told him they had no money. He then took their handbags and searched the bags for money. He found a mobile phone in Gail's handbag and took it. He also took a wallet containing $150.00 (Australian dollars), a driver's license and several credit cards from Gail's handbag.
I note that he had taken nothing from Beverlyn.
The accused has a previous conviction for robbery in February 2008 and was sentenced to 2 years imprisonment.
It is clear that the sentence did not have any effect on him. Society must be protected from such vagabonds. He must be locked away for a lengthier period.
In Kilatu v Regina[7] ("Kilatu"), the appellant was convicted in the High Court of armed robbery and sentenced to 4½ years imprisonment. On appeal against sentence, the Court of Appeal reduced the sentence to 3 years due to the delay in prosecuting the case.
Of course the facts in Kilatu are more serious than those in this case. However, the difference between these two cases is that in Kilatu, the accused is a first offender while in this case the accused has a previous conviction for the same offence.
Having regard to the circumstances of this case and the previous conviction of the accused for the same offence, it is my view that a sentence of 3 years is appropriate in this case.
However, the accused has pleaded guilty to the charge and must be given a discount in the sentence. I shall reduce the sentence by 6 months.
I therefore sentence the accused to 2½ years for the armed robbery charge.

Common assault:

The accused had also pleaded guilty to the offence of common assault under section 244 of the Penal Code. The offence carries a maximum sentence of 1 year imprisonment unless it is committed in circumstances for which a greater punishment is provided for under the Penal Code. I have found no circumstance for which the accused could have been sentenced to a greater punishment.
According to the agreed facts, the offence was committed at the Resthouse at night on 1st October 2009, the same night on which the three previous offences were committed. Gail had informed Patrick Samani about the intrusion by the accused into their room.
Samani then went to the main road outside the Resthouse where he saw a group of men, one of whom was the accused. Samani stopped a police vehicle and reported the matter to the police. When the police approached the group, the accused came towards Samani and punched him on the jaws and then escaped.
The accused has a previous conviction for common assault in November 2004 for which he was sentenced to 3 months imprisonment. Despite that custodial sentence, he has not learned. He has done it again. He deserves a more severe sentence. In my view, the appropriate sentence in this case is one of 8 months imprisonment.
However, he has pleaded guilty to the charge and must be given a reduction in sentence. I shall reduce the sentence by 2 month. I therefore sentence the accused to 6 months imprisonment for his assault on Patrick Samani.

Whether sentences to be concurrent or consecutive:

The accused has been sentenced to 8½ years for the rape charge, 1 year for the indecent assault charge, 2½ years for the robbery charge and 6 months for the common assault charge - making it a total of 12 years and 6 months.
The question now is whether these sentences should be made concurrent or consecutive.
It has been said[8] that offences may be treated as part of a single transaction when they are proximate in time or where they are proximate in the type of offences and where they involve the same victim.
In Stanley Bade v Regina[9] ("Bade"), Ward CJ, reiterated the general rule that separate and consecutive sentences should be imposed for separate offences.
However, his lordship said that there are two situations where this general rule may be modified. The first is where a number of offences arise out of a single transaction and cause harm to the same person (the single transaction principle) and the second is where the aggregate sentence would, if made consecutive, amount to a total that is inappropriate in the particular case (the totality principle).
In the present case, the commission of the 4 offences was proximate in time. They were committed on 1st October 2009. However, counts 1 and 2 relate to offences committed on Beverlyn while count 3 relates to an offence committed on Gail and count 4, an offence committed on Patrick Samani.
As such, I am satisfied that the first and second offences can be treated as a "single transaction" justifying concurrent sentences. As to counts 3 and 4, while the offences were proximate in time, the offences are not the same and the victims are also not the same persons.
It follows therefore that the sentences for counts 1 and 2 will be served concurrently with each other while the sentences for counts 3 and 4 will be served consecutive with the sentences for counts 1 and 2. That means the accused will serve a total of 11½ years in custody back-dated to the time when the accused was taken into custody.
I have also considered the totality of the sentences and I am satisfied that 11½ years is reasonable having regard to the nature of the offences and the circumstances thereof. The accused was born in 1987 and has just turned 25 last December. I do not think a sentence of 11½ years will have a crushing effect on him.
In any event, the accused, according to his written plea in mitigation, is unemployed, uneducated, unskilled and essentially homeless. There is no evidence that if earlier released he would not returned to the same environment that made him commit these offences.
The accused is therefore sentenced as follows:-

[1] Count 1 - 8½ years imprisonment.

[2] Count 2 - 1 year imprisonment.

[3] Count 3 - 2½ years imprisonment.

[4] Count 4 - 6 months imprisonment.

[5] The sentences for counts 1 and 2 are to be served concurrently.

[6] The sentences for counts 3 and 4 are to be served consecutive to the sentences for counts 1 and 2.

[7] The total time to be spent in custody is therefore 11½ years back-dated to the time when the accused was taken into custody.

THE COURT

^[1] [1985-1986] SILR 214
^[2] [2012] SBHC 120; HCSI-CRC 128 of 2011.
^[3] See also R v Chachia HCSI-CRC 95 of 2012 where a 10 year sentence was imposed.
^[4] Paragraph (a) of the Declaration in the Preamble to the Solomon Island Constitution.
^[5] R v Ligiau & Dori [1985-86] SILR 214.
^[6] Section 141(1), Penal Code.
^[7] [2009] SBCA 20; CA-CRAC 6 of 2009 (21 July 2009).
^[8] Sentencing and Criminal Justice, Andrew Ashworth, 4^th Ed, pp. 243 - 245
^[9] [1988/89] SILR 121 at 125.

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