Regina v Lilivae [2014] SBHC 110; HCSI-CRC 257 of 2013 (30 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 257 of 2014

R

v

JOHN LILIVAE

Coram: PALLARAS J
Crown: Mr A. Kelesi
Defence: Mr. B. Ifuto'o

Hearing Dates: 8 September, 2014
Sentence Delivered: 30 September, 2014

SENTENCE

1. The prisoner pleaded guilty to one count of rape. The offence occurred on the 24th September, 2014 in Gizo.

2. The prisoner entered his home, which was also the home of the victim, whom he knew and who was at the time looking after her young child. When he entered the home, he was carrying an axe and smelt strongly of alcohol.

3. He demanded that the victim leave aside her child and have sexual intercourse with him. When she refused, the prisoner became enraged and struck the victim across the face. He threatened her with further violence unless she complied. As a result of these assaults the victim suffered two black eyes.

4. The prisoner then ordered a 10 year old boy, who was also present, to take the younger child away. He threatened to assault the boy if he refused to comply. The boy took the young child away leaving the victim alone in the house with the prisoner.

5. The prisoner continued to verbally abuse and threaten the victim. Out of fear for her safety the victim complied with his demand that she go into a room and remove her clothes.

6. The prisoner then raped the victim and left the house.

7. The victim then told her sister what had happened and later reported the matter to the police.

8. On the prisoner's behalf, it is said that he is a first offender and that at age 22 he is a young man with good prospects of rehabilitation. I accept these submissions.

9. It was further suggested that he had made full admissions to the police in his Record of Interview. This is clearly not so. He not only made no admissions but consistently avoided any reference to the allegations that were being put to him and took no responsibility for his actions whatsoever.

10. What is more significant however is the prisoner's plea of guilty. This came on the first day of his trial and consequently was a very late plea. While there is little utilitarian value in his guilty plea, its value lies in his recognition of his responsibility and as being indicative of remorse, together with the fact that the victim has been relieved of the necessity to relive the traumatic incident through her evidence. The prisoner will be given credit for his plea of guilty.

11. The Prosecution submit that there were features of aggravation. They include –

1. The prisoner was under the influence of alcohol;
   
2. The prisoner threatened the victim before the rape; and
   
3. The prisoner assaulted the victim before the rape.
   

12. To these I would add the following consideration –

1. The prisoner entered the premises armed with an axe. While he put the weapon down upon entering, it is clear that the victim would know and was meant to know, that he had ready access to a weapon. This undoubtedly would have had the effect of intimidating the victim and increasing her terror.
   

13. I find that the threats to assault the victim, the actual assaults on the victim and the carrying of an axe are all features that aggravate this offence.

14. All sentencing matters involve the weighing and the balancing of competing factors, taking into account matters both favourable and unfavourable to the prisoner. In the present case, I have found that there are legitimate features both of mitigation and aggravation.

15. The Prosecution have submitted that the starting point in sentencing in this case should be 8 years imprisonment. The Defence have submitted that the starting point should be 5 years imprisonment. Both cite R v Ligiau and Dori [1985-1986] SILR 214 as authority for their submission. Both indeed cite the same passage from that case as support for coming to their different conclusions.

16. In their written sentencing submissions, the Defence state that –

"This is not a contested case and as such, .... the starting point should be 5 years."

With respect, the determining factor as to whether the starting point should be 5 years or 8 years imprisonment, is not only whether the case is "contested" but whether there are any, and if so what, features of aggravation and mitigation. In the context of R v Ligiau and Dori, this case clearly is an aggravated offence where an 8 year starting point is appropriate. Once it is so categorised, additional features of aggravation as I have found to exist must then be weighed together with those features of mitigation which have been found to exist, to determine the overall sentence.

17. After taking into account all of the features which mitigate and which aggravate this offence of rape, and taking as a starting point the penalty of 8 years imprisonment, it is in my judgment appropriate to increase the term of imprisonment by 2 years to reflect the totality of the aggravating features, resulting in a penalty of 10 years imprisonment. However when his youth, prospects for rehabilitation and his guilty plea are considered, I reduce the penalty by 3 years, resulting in a sentence of 7 years imprisonment.

ORDERS:

1. The prisoner is convicted of one count of rape contrary to s. 136 of the Penal Code [Cap. 26].

2. The prisoner is sentenced to imprisonment for 7 years.

3. Time already spent in custody for this offence shall be taken into account.

THE COURT