R v Livia - Sentence [2014] SBHC 65; HCSI-CRC 47 of 2012 (19 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
AT GIZO
PALLARAS J

Criminal Case Number 47 of 2012

R

v

PULE LIVIA

Coram: PALLARAS J
Crown: Mr. A. Kelesi and Mr. J. Naigulevu (Advisor)
Defence: Mr. B. Ifuto'o and Ms. G. Nott
Hearing Dates: 2-3 June, 2014
Verdict Delivered: 4 June, 2014
Sentence Passed: 19th June, 2014

SENTENCE

1. Pule Livia ("the prisoner") was charged that between 1st- 31st December 2010 and between 1st -30th June 2011, at Keara village, Ranongga Island, Western Province, he did rape the complainant contrary to s.136 of the Penal Code [Cap. 26].

2. On 4th June, 2014 he was convicted of both charges.

3. At the time of the offences, the complainant was approximately 18 years of age and the prisoner was approximately 46 years of age.

4. The prisoner was the cousin of the father of the complainant and, according to the prisoner, he regarded the complainant as his "granddaughter".

5. Since birth, the complainant had been severely physically and intellectually handicapped. She could not use her arms or her legs and could only speak with great difficulty. She was confined to a wheelchair and needed assistance to move about in it.

6. The offences were committed by the prisoner entering the home of the complainant and, on one occasion at least, he did so while the grandmother of the complainant was present in the house.

7. I am informed that the prisoner has no previous convictions, that he has spent over two weeks in custody prior to being granted bail and that it has been three years since the offences were committed.

8. I regard these offences as particularly bad examples of the offence of rape containing as they do, a number of aggravating features. I regard the following as aggravating the offences –

1. The significant age difference between the prisoner and the complainant;
   
2. The close family relationship between the prisoner and the complainant and the position of trust that he occupied and abused;
   
3. That he chose as his victim a young girl whom he knew to be totally defenceless and unable in any way to resist his attacks upon her;
   
4. That he repeated his crime against the complainant;
   
5. The brazen way in which the crimes were committed by entering the home of the complainant uninvited and, at least on one occasion, when the complainant's grandmother was in the house.
   

9. It is difficult to imagine more cowardly attacks than these on a young girl who was literally defenceless throughout her ordeals.

10. In their "Second Interim Report – Sexual Offences June 2013" the Solomon Islands Law Reform Commission (SILRC), called for increases in penalties for various sexual offences so as to

"make the Penal Code more responsive to the modern needs of the Solomon Islands"[1].

11. In that Report the SILRC referred to the " alarming level of sexual violence"[2]across the Solomon Islands. They found that most sexual offences committed against women are not reported to the police and the numbers actually prosecuted are smaller still. Despite these findings the SILRC concluded that the majority of sentences passed for rape between 2003 and 2010 were "at the bottom end of the scale (three years)" [3] and that "compared to other countries in the region such as Vanuatu, Papua New Guinea and Fiji sentences for sexual offences in Solomon Islands are low." [4]

12. There has been until recently an unhappy combination of very high levels of sexual violence with historically low levels of punishment, particularly for rape, in Solomon Islands.

13. In the recent Court of Appeal matters of Soni, Supa and Chachia, their Lordships in addressing the issue of sentencing for rape, said

"The presence, however, of more than one of those features of aggravation may suggest that a departure from the starting point is appropriate. As indicated in Billam, where any one or more of these aggravating features are present, 'the sentence should be substantially higher than the figure suggested as the starting point.'

Where the sentencing judge feels constrained to depart from established guidelines he or she is entitled to do so if the circumstance of the case warrant such a departure. In that instance, it is simply necessary for the sentencing judge to give reasons for the departure from those guidelines."[5]

14. The maximum penalty for rape provided under section 142 of the Penal Code is imprisonment for life. While it might be stating the obvious, the existence of a penalty of this severity clearly establishes that the view of the legislature of the offence of rape is that it is one of the most serious offences in the criminal law. However not all offences of rape can be dealt with in the same manner. While all rape offences are serious crimes, some are attended by features of aggravation which warrant them being considered as involving more criminality than others. I have outlined the matters (more particularly the first three features outlined) which I consider aggravate these crimes and which place this offending in the more serious category.

15. In a decision handed down prior to the release of the SILRC Second Interim Report and other significant reports into sexual offence in Solomon Islands[6], the Court of Appeal recently decided that there was no need to increase the starting point for sentencing those who have been convicted of rape with a feature of aggravation. The starting point is to be 8 years imprisonment.[7] In their judgment their Lordships said

"As indicated in Billam, where any one or more of these aggravating features are present, 'the sentence should be substantially higher than the figure suggested as the starting point'"[8]

16. In my judgment, the circumstances of the present case warrant a departure from the starting point. The circumstances I refer to here are the physical and intellectual condition of the complainant rendering her totally defenceless against any attack upon her, the betrayal of trust by the accused in his position as a relative of the Complainant and the significant difference in age (28 years) between the prisoner and the complainant. These additional and very serious factors add substantially to the appropriate sentence for these offences and I consider that an additional four years imprisonment would be appropriate.

17. As a result, the prisoner is sentenced to imprisonment for 12 years on each count.

18. It has been submitted to me that any sentences imposed should be served concurrently because "the offences were committed on the same victim". If that were sufficient reason to impose concurrent sentences then no victim would ever be safe from further attack. In the present case, the second rape of the complainant was committed some six months after the first attack. There was ample time for the prisoner to reflect on what he had done and to desist. Instead, after taking months to consider his position, he repeated his serious crime against the complainant. In these circumstances, I do not regard it as appropriate to impose concurrent sentences. These separate serious criminal acts committed months apart, should properly incur consecutive sentences.

19. However, I take into account the principle of totality. Consecutive sentences of the full 12 year sentences would result in a disproportionately harsh penalty. As a result, part of the sentence imposed for Count 2 will be ordered to be served concurrently with the sentence being served for Count 1.

ORDERS:

1. The prisoner is convicted of two counts of rape contrary to section 136 of the Penal Code [Cap. 26].

2. In respect of Count 1 he is sentenced to imprisonment for 12 years.

3. In respect of Count 2 he is sentenced to imprisonment for 12 years.

4. In respect of the sentence imposed for Count 2, 10 years of that sentence is to be served concurrently with the sentence being served for Count 1.

THE COURT

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^[1] At para.1.4
^[2] Ibid, para.2.3
^[3] Ibid, para.2.13
^[4] Ibid, para.2.15
^[5] Soni, Supa & Chachia v R SICOA CAC 27, 28, 35 of 2012 at paragraphs 12 and 13.
^[6] (i)Review of the Penal Code and the Criminal Procedure Code, SECOND INTERIM REPORT, SEXUAL OFFENCES, JUNE 2013; (ii) Solomon Islands Family Health and Safety Study, Ministry of Women, Youth and Children; and (iii) Solomon Islands CEDAW Combined Initial, second and Third Periodic Report 2012.
^[7] Soni, Supa & Chachia v R SICOA CAC 27, 28, 35 of 2012 at p.6
^[8] Op.cit. p.6