Regina v Waitamu [2013] SBHC 159; HCSI-CRC 28 of 2013 (6 December 2013)

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

Criminal Jurisdiction

REGINA

-v-

DICK WAITAMU

Date of hearing: 4th December 2013.
Date of Judgment: 6th December 2013.

Mr. R. Iomea for the Crown.
Mr. L. Hite for the prisoner.

SENTENCE

1. You have been convicted of 2 counts of rape, 1 count of attempted rape and 1 count of common assault upon the complainant, Mrs. Joycelyn Moliki, on various dates in 2008 and 2009. The full facts of the case are set out in my judgment delivered on the 10th July 2013.
   
2. The offence of rape carries a maximum sentence of life imprisonment. It is a very serious offence and anyone found guilty of rape must expect a custodial sentence unless exceptional circumstances exist to justify a sentence other than custody.
   
3. Where a custodial sentence is intended to be imposed, the starting point is 5 years in a case where there are no aggravating factors and no mitigating factors. This was the bench mark laid down in R v Ligiau & Dori[1] ("Ligiau") which has been approved by the Court of Appeal in the cases of Elijah Soni[2], Peter Supa[3] and Leslie Chacha[4].
   
4. In Ligiau, it was said that where rape is committed by a person who is in a position of responsibility towards the complainant, the starting point should be 8 years. The court also said that where any of the following 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 complainant; (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 complainant is subjected to further sexual indignities or perversions; (7) the complainant is either very old or very young; (8) the effect upon the complainant, whether physical or mental, is of special seriousness, the starting point should be substantially higher than the figure suggested as the starting point.
   
5. In this case, I accept that you do not hold any position of trust in relation to the complainant. However, I am satisfied that a number of aggravating features referred to in Ligiau are present in this case, namely, the fact that the complainant was a very old woman, she being 60 years old at the time of the offence while you were 29 years and the fact that the rape was repeated.
   
6. Unfortunately, I find no mitigating features in your favour in regards to this case apart from your guilty plea for the common assault charge. This will be taken into account when it comes to deciding the appropriate sentence for the common assault charge.
   
7. I have considered other factors urged upon me by your solicitor in his written submission. I have also considered penalties imposed by this court in respect of past rape cases. These penalties ranged from 3 to 8 years. However, each case was judged according to its own merits.
   
8. In Ligiau, the accused Ligiau was convicted of the rape of a 12 year old complainant and sentenced to 6 years imprisonment. In the same case, Dori was convicted of attempted rape of a 10 year old complainant and sentenced to 5 years imprisonment. In these two cases, the accuseds have pleaded guilty to the charges and both were first offenders.
   
9. The present case was a contested case. You were found guilty after trial. However, this does not mean that I will take into account your not guilty plea. In law, you are entitled to have the prosecution prove their case against you.
   
10. In accordance with the principle in Ligiau and having regard to the aggravating features of the case and all that has been said by your counsel in your favour, it is my view that the appropriate sentence for the two counts of rape of which you have been found guilty is 6 years imprisonment for each of the two counts.
    
11. You were also found guilty of attempted rape after trial. The facts which gave rise to this charge are also the facts relative to the common assault charge of which you have pleaded guilty. You were not successful in raping the complainant only because of your inability to gain full erection due to the amount of alcohol you had consumed. Because you were not able to have sex with the complainant, you have decided to assault the complainant. Clearly, this was conduct aimed at satisfying your sexual desires at the expense and humiliation of the complainant. That is an aggravating feature in so far as the sentences for the attempted rape and the common assault are concerned.
    
12. In my judgment delivered on 10 July 2013, I said (at paragraph 69) when I found you guilty of attempted rape that I was satisfied beyond reasonable doubt that you had intended to rape the complainant that Saturday night but you did not succeed only because your penis was too weak due to the effect of the alcohol which you had consumed that night. I said that I was also satisfied beyond reasonable doubt that the complainant was not willing to have sex with you on that occasion. Finding that you were unable to have sex with the complainant, you resorted to conduct which humiliated the complainant and caused her injuries and great discomfort. I have taken those factors into account. Your guilty plea to the common assault case has been taken into account.
    
13. Taking all these factors into account and having regard to previous sentences for similar offences in the past including all that has been submitted on your behalf by your counsel, it is my view that the appropriate sentence for the attempted rape charge is 4 years and the sentence for the common assault charge is 2 years. In imposing the above sentences, I have also taken into account the fact that you do not have a clean criminal record. You have previous convictions for conversion, indecent assault and common assault in 2007. Your commission of the present offences in 2008 and 2009 shows a criminal trend which must be discouraged in the form of sentences that have been imposed above.
    
14. The sentences for the present charges will therefore be as follows:-
    

Count 1 (rape) - 6 years imprisonment.

Count 4 (rape) - 6 years imprisonment.

Count 5 (attempted rape) - 4 years imprisonment.

Count 6 (common assault) - 2 years imprisonment.

15. The sentences for counts 4, 5 and 6 are to be served concurrently on the basis that they were committed on the same victim and in the same month of February 2009. The proximity of the dates on which these offences have been committed convinces me that the sentences for those three charges should be concurrent. That means you will serve only 6 years for those three offences. However, that sentence will be served consecutive to the 6 year sentence for count 1. That means you will serve a total sentence of 12 years altogether.
    
16. That, however, is not the end. I must consider the totality of these sentences in the light of your age and other factors pleaded on your behalf. At 30, which you claim to be your present age, I am satisfied that you still have the potential to be rehabilitated. You are still not married and you had better improve your behavior if you are to have any chance of succeeding in getting married. It is my view that the sentence of 12 years needs to be reduced to give you another chance to improve yourself. I think the 12 years should be reduced by 3 years which means that you will serve only 9 years in total. By then you would be 39 years old.
    
17. I therefore sentence you to 9 years imprisonment. Any period of time that you have already spent in custody while on remand shall be taken into account in calculating the 9 year period. However, the time you have been in custody pursuant to the warrant of arrest issued on 28 August 2013 will not be taken into account[5].
    

THE COURT

James Apaniai
Puisne Judge.

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^[1] [1985-1986] SILR 214
^[2] Unreported, SICOA CAC 27 of 2012.
^[3] Unreported, SICOA CAC 28 of 2012.
^[4] Unreported, SICOA CAC 35 of 2012.
^[5] See Regina v Warren Rina Pana SICOA – CRAC No. 13 of 2013.