R v Alu [2014] SBHC 86; HCSI-CRC 145 of 2012 (7 August 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 145 of 2012

R

v

DICK ALU

Coram: PALLARAS J
Crown: Mr A. Kelesi
Defence: Mr. B. Ifuto'o
Hearing Dates: 21-22 July, 2014
Verdict Delivered: 23 July, 2014
Sentence Delivered: 7 August, 2014

SENTENCE

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

2. The circumstances of the offences have been fully described in the verdict delivered on 23 July, 2014.

3. The prosecution submit that there are nine aggravating features of these offences. They are -

1. The offences are serious;
   
2. At the time of the offending, the complainant was 19 years old and the prisoner was 37 years old, an age difference of 18 years;
   
3. She was abducted by the prisoner prior to him raping her;
   
4. The prisoner had no respect for the complainant or women in general;
   
5. She was poorly treated by the prisoner;
   
6. The prisoner was under the influence of alcohol;
   
7. There was an element of pre-planning;
   
8. The first rape was committed at night while the complainant was isolated in the prisoner's boat; and
   
9. The offending has had a serious impact on the complainant.
   

4. The defence submit that there are three mitigating factors. They are –

1. The prisoner is a first offender;
   
2. As the offences were committed in 2010, there has been a delay of 4 years and
   
3. The prisoner spent 3 days in custody before being granted bail.
   

5. The defence also submit as matters personal to the prisoner that –

1. At the time of the offending he was 36 or 37 years of age;
   
2. He is married with 4 children;
   
3. His wife is about to give birth with their fifth child;
   
4. He is a subsistence farmer; and
   
5. He was educated to Grade 6.
   

6. I will deal sequentially with the Crown's submissions on features of aggravation –

1. The fact that an offence is serious is not an aggravating feature of the offence, serious offences may have features of aggravation or they may not.
   
2. I find that the significant age difference between the complainant and the prisoner is a feature of aggravation.
   
3. There is always an element of holding a person against their will in cases of rape. Had the prosecution wished to allege the offence of abduction, I would have expected such a count to appear on the Information. It did not. This was either because the Director of Public Prosecutions failed to give any or sufficient careful thought to the framing of the charges or, if he did, decided against laying that charge. The circumstances of the offending are such that the complainant willingly boarded the prisoner's boat and willingly stayed on it until shortly before the offending began.
   
4. The commission of the offence of rape itself carries with it an explicit demonstration of one person's lack of respect for another. The commission of the offence does not aggravate the offence.
   
5. The complainant's treatment by the prisoner, other than in the act of raping her, does not otherwise on the facts of this case satisfy me beyond reasonable doubt that it ought to be regarded as an aggravation of the rape itself.
   
6. The prosecution have failed to prove beyond reasonable doubt that the prisoner was under the influence of alcohol.
   
7. The prosecution have failed to prove beyond reasonable doubt that pre-planning was involved.
   
8. While committing rape either on a boat or at night are not necessarily features of aggravation, I agree that the surrounding circumstances of the offending, where they might add to the complainant's sense of terror, helplessness or isolation, may well be features, which aggravate the offences. I find them to be so in this case.
   
9. The impact on a victim is always a consideration that must be borne in mind by a sentencing court.
   

7. As to the submissions by the defence, I take into account the fact that the prisoner has hitherto been law abiding and that he is a married man with a family. While the delay has been lengthy, in this jurisdiction it is unfortunately commonplace and is not in that category of delays that demands judicial reaction. As to all of the matters personal to the prisoner it is settled law that –

"In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes." Per Ward CJ in R v Ligiau and Dori [1985-1986] SILR 214.

8. In this case, I find that the first rape was committed with circumstances of aggravation, namely that there was a significant age difference between the complainant and the prisoner, and that the circumstances of her being held by the prisoner were such as to cause her additional terror and helplessness than the rape itself might otherwise have caused. Her terror was demonstrated by her attempt to escape by jumping into the ocean at night far from land. The prisoner's threat to drive off and leave her to drown placed her in a terrifying and an impossible position.

9. In relation to the second rape which, other than the age differential, does not have the features referred to in the preceding paragraph, was nevertheless a second rape by the prisoner. It is in my judgment aggravated by the fact that despite having sufficient time to reflect upon what he had already done to the complainant and to desist, he did not do so but rather chose to repeat the crime against her.

10. The complainant's physical and mental condition had been reduced to a state of submission by the arduous ordeal to which she had been subjected, an ordeal which so traumatised her as to completely overcome her will and ability to resist the prisoner.

11. It is clear from the facts that the prisoner bullied her, threatened her, terrorised her and raped her. Such cowardly and criminal acts against a young woman are serious offences indeed. They represent an attitude of superiority, arrogance and servitude towards women which, when one considers the offenders who are prepared to and do commit these crimes, would if it were not so tragic, be derisory.

12. The prosecution have made no submissions at all on whether the sentences should be concurrent or consecutive. The defence submit that they should be concurrent because first, the victim is the same in each count and secondly, the two offences arose from a single transaction.

13. It is extraordinary how often it is said that if the victim in each count is the same then sentences should be concurrent. The logical extension of that submission would be that an offender could commit as many offences as he liked and effectively serve only one sentence, provided he kept offending against the same victim.

14. Next, it is submitted that the two rapes "arose from a single transaction". This submission totally misapprehends the facts. After the first rape, the complainant was taken on a long boat ride back to Gizo. Upon arriving, she spent a considerable time in the boat while the prisoner went looking for a room. The complainant was then taken to another location where the prisoner had a shower. She was then taken to yet another location where she was raped for the second time. This occurred hours after the first rape and in no sense could it properly be described as "a single transaction".

15. In my judgment, the sentences must be consecutive.

16. I have found that both rapes were committed with features of aggravation. In such cases, I take as a starting point for sentencing, a sentence of 8 years[1]. In relation to the first rape (Count 1) I find that an appropriate sentence is one of 9 years imprisonment. In relation to the second rape (Count 2) I find that an appropriate sentence is one of 8 years imprisonment.

17. If the sentences are to be served consecutively, the aggregate sentence would be 17 years imprisonment. Having regard to the principle of totality, such a sentence should be reduced to properly reflect the criminality involved and to avoid a crushing sentence. In relation to the sentence for Count 2, the first 4 years of that sentence are ordered to be served concurrently with the sentence being served for Count 1. The remaining 4 years of the sentence for Count 2 are to be served cumulatively upon the sentence for Count 1.

ORDERS
1. In relation to Count 1, the prisoner is sentenced to imprisonment for 9 years.

2. In relation to Count 2, the prisoner is sentenced to imprisonment for 8 years.

3. The first 4 years of the sentence for Count 2 are to be served concurrently with the sentence being served for Count 1.

4. The remaining 4 years of the sentence for Count 2 are to be served cumulatively upon the sentence for Count 1 resulting in a total sentence of 13 years imprisonment to be served.

THE COURT

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^[1] See R v Ligiau and Dori [1985-1986] SILR 214.