R v Patare [2014] SBHC 79; HCSI CRC 49 Of 2013 (31 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case Number 49 of 2013

R

v

ALLEN PATARE

Coram: PALLARAS J
Crown: Ms. F. Joel
Defence: Mr. C. Rarumae
Hearing Dates: 14-15 July, 2014
Verdict Delivered: 17 July, 2014
Sentence Passed: 31 July, 2014

SENTENCE

1. Allen Patare ("the prisoner") was charged with one count of rape (Count 1) and one count of assault causing actual bodily harm (Count 2). The complainant in each count was the same person, his 15 year old niece, the daughter of his sister. To Count 1 he pleaded not guilty. To Count 2 he pleaded guilty. On 17 July 2014 after trial, the prisoner was convicted of Count 1 and on his plea of guilty, was also convicted of Count 2.

2. At the time of the offences, the complainant was approximately 15 years of age and the prisoner was approximately 34 years of age.

3. The prisoner is the brother of the complainant's mother.

4. The Crown submits that there are several features of aggravation of the offending. These are said to be-

1. The prisoner's abuse of his position of trust as the uncle of the complainant;
   
2. The use of a weapon to threaten and to frighten the complainant into submission;
   
3. The significant age difference (19 years) between the prisoner and the complainant;
   
4. That the prisoner took the complainant from her mother against the will of the complainant; and
   
5. In relation to the assault, the use of a weapon (a torch) to strike the complainant's head.
   

5. I have also been provided with a victim impact statement which describes the significant emotional impact that these offences have had on the complainant and the anger that has been generated within her extended family as a result of these offences.

6. I was presented with written sentencing submissions on behalf of the prisoner, which submissions included that –

1. The prisoner pleaded guilty to the charge of assault causing actual bodily harm, showing his remorse;
   
2. He was acting on the instructions of the father and the brother of the complainant when he took her from her mother;
   
3. He has no previous convictions;
   
4. He has spent over 1 year and 7 months in custody;
   
5. He was co-operative with the police;
   
6. He is married with 5 children; and
   
7. His family depend upon him for financial support.
   

7. Dealing first with the charge of rape, I do find there to be several serious features of aggravation. It is always incomprehensible to me how any man could think so little of a member of his own family as to treat them with so little humanity. This is particularly so when even although that family member is a female child, that he could treat her with such disrespect, contempt and cruelty. The complainant was the prisoner's sister's young daughter. It is hard to imagine how this could have occurred without there being such dysfunction and indifference in the prisoner as to cause him to totally lose his moral and human compass.

8. His use of a knife to hold against the complainant's throat and his threat to cut her throat, is a serious feature of the offence. This certainly terrified her and robbed her of any capacity to resist.

9. The age difference of 19 years is also significant, particularly when the complainant was only 15 years old at the time of the rape. Every civilised community expects more of its adults. Every village expects more of its adults. Every family expects more of its adults. The example set by adults in small communities must inevitably impact upon the behaviour of the next generation and conduct such as this sets all of the wrong standards.

10. The Crown have sought to argue that the taking of the complainant from her mother by the prisoner was against the will of the complainant. It is a pity that more thought was not given to this feature of the case by the prosecution when the charges were being determined. It is also a pity that more thought was not given to calling witnesses who might establish this allegation in light of the explanation given by the prisoner, an explanation that with more thorough preparation would have easily been revealed. In the circumstances, I find that the prosecution have failed to prove this circumstance of aggravation beyond reasonable doubt or indeed at all.

11. A matter that has inexplicably not been mentioned by the prosecution, which I find as a further feature of aggravation, is the fact that in order to rape the complainant, the prisoner entered her house uninvited and at night while she was sleeping.

12. The prisoner pleaded not guilty to the charge of rape and so, unlike in the case of the assault charge, cannot be given any benefit for his plea of guilty as indicative of remorse. I take into account the fact that he has no previous convictions, has spent significant time in custody awaiting trial and is the breadwinner for his family. However, this act of rape, significantly aggravated in several ways as it is, is too serious an offence for anything other than an immediate custodial sentence to be appropriate.

13. In relation to the assault charge, the facts again reflect no credit on the prisoner. Even on his own case and the submissions of his counsel, it was simply because the complainant said something to annoy him that he felt justified in striking the girl a hard blow on the head with a torch, lacerating her scalp and causing her to bleed. This act further demonstrated the contempt in which he held and treated the complainant.

14. Both counsel have referred me to R v Liagiau and Dori [1985-1986] SILR 214, and both submit that in sentencing in the present case I should follow the views expressed by Ward CJ in adopting the views of Lord Lane in R v Billam (1986) 1 WLR 349 where he said:

For rape committed by an adult without aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

15. In the present case, not only was the rape committed "by a man who has broken into or otherwise gained access to a place where the victim is living", and by a man "who is in a position of responsibility towards the victim", it was committed with the use of a weapon and with a threat being made to cut the complainant's throat - by a man 19 years older than the complainant who was herself just 15 years old.

16. In the recent Court of Appeal matters of Soni, Supa and Chachia, SICOA CAC 27, 28, 35 of 2012 at paras. 12 and 13, their Lordships 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.'

17. Due to the aggravated nature of the offence, the starting point for determining the appropriate sentence in this case should be 8 years imprisonment. Considering the considerable additional aggravating features attending the offence, I find that it is appropriate to depart from the starting point and that an appropriate sentence is 12 years imprisonment. I have considered the matters personal to the prisoner but I do not find them of such significance that when placed in the balance that their effect should be to result in any lesser sentence.

18. In relation to the assault causing actual bodily harm, the maximum penalty for this offence is imprisonment for 5 years. In my judgment an assault with a weapon by an adult male on a female child is a serious offence, as is recognised by the maximum penalty provided. I take into account the prisoner's plea of guilty and the other matters submitted on his behalf by way of mitigation and sentence him to imprisonment for 1 year on this count.

19. I have considered whether the sentences should be served concurrently or consecutively. The complainant testified that the prisoner struck her on the head with a torch when, according to the prisoner, he was following the instructions of her father to bring the complainant back to Lio Creek. It was obvious from the evidence that the complainant did not wish to go with the prisoner and that along the way something was said by the complainant that annoyed the prisoner, which led him to strike the girl. There was evidence from the complainant that this occurred approximately two weeks after the prisoner had raped her in her home.

20. In my view, it cannot be said that the assault was part of the rape nor part of the same series of events so as to justify making the punishment for this offence concurrent with the punishment for the rape. They are separate and distinct offences occurring two weeks apart. The sentences should be cumulative. In my judgment this would not offend against the totality principle for the offences committed against the complainant.

21. The prisoner is therefore sentenced as follows:

Count 1 – Rape, contrary to section 136 of the Penal Code [Cap. 26]: 12 years imprisonment.

Count 2 – Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code [Cap. 26]: 1 year imprisonment.

ORDERS:

1. In relation to Count 1, the prisoner is sentenced to imprisonment for 12 years.

2. In relation to Count 2, the prisoner is sentenced to imprisonment for 1 year.

3. The sentences are to be served consecutively.

4. The prisoner was taken into custody on 13 December 2012. Time already spent in custody is to be taken into account in determining the expiration date of his sentence.

THE COURT