R v Haiea [2018] SBHC 100; HCSI-CRC 459 of 2018 (30 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Haiea
Citation:
Date of decision:	30 November 2018
Parties:	Regina v Cosmas Haiea
Date of hearing:	23 November 2018
Court file number(s):	CRC 459 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	The accused Cosmas Haiea, it is my view that the appropriate sentence for you is 4 years, and therefore the court sentence you to 4 years imprisonment. The period spent in custody to be deducted from the sentence.
Representation:	Ms. F. Fakarii and I. Kekou for the Prosecution Mr. B. Ifuto’o for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code
Cases cited:	R v Ligiau and Dori, Soni v Regina, Regina v Maewanusi, Regina v Manisonia

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 459 of 2018

REGINA

v

COSMAS HAIEA

Date of Hearing: 23 November 2018
Date of Judgment: 30 November 2018

Ms. F. Fakarii and I. Kekou for the Prosecution
Mr. B. Ifuto’o for the Accused

SENTENCE

Introduction

The accused Cosmas Haiea of Maliae Shortland Islands Western Province is charged and pleaded guilty with one count of rape contrary to section 136 (f) (1) (a) &(b) of the Penal Code (Cap 26) as amended (Sexual Offences) (Amendment) Act 2016. And I convicted him on the charge of rape.

Brief summary of the case

On the 13^th August 2016 at about 8 pm the victim Zelma Olana met a boy at Gizo market and they walked over to the Gizo Community High School. They went there and told stories and intended to have sexual intercourse. While they were there, the accused and his two friends Emmanuel Bisi and Hensky Taulic came and found the victim and the boy at the school area.

The accused told his two friends to chase the victim’s boyfriend and as they were busy chasing the boy, the accused pulled the victim’s hand and led her into the classroom. In the classroom the accused told the victim to take off her clothes.

The victim refused but the accused threaten to assault her. He moved closer, took off her clothes and told her to lay down. Victim was afraid and followed the direction of the accused or what to do. Accused pulled up her black skirt, widened her legs and he pushed his penis into her vagina and had sexual intercourse with her.

Accused told his two friends who chased away the boyfriend that he already sexual intercourse with the victim. A teacher came to the place but the accused and his friends fled from the scene.

The Law

Section 136 (f) (1) (a) & (b) of the Penal Code (Cap 26) as amended (Sexual Offences) (Amendment) Act 2016 states that if the person has sexual intercourse with another person without the other person's consent; and knowing about or being reckless as to the lack of consent the Maximum penalty: Life imprisonment.

In the absence of any aggravating or mitigating factors in a contested case for rape the starting point is 5 years. This is stated in the case of R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986). And in the case Soni v Regina [2013 SBCA 6, Criminal Case 27, 28, 35 of 2012 the Court of Appeal endorsed the starting of rape.

And for non-contested rape case it should be lower than the starting point ascribed in Ligiau and Dori's case for contested case as stated by Faukona J in the Regina v Maewanusi [2010] SBHC 53; HCSI-CRC 384 of 2009 (17 August 2010) and affirmed in the case Regina v Manisonia [2017] SBHC 107; HCSI-CRC 241 of 2017 (23 November 2017). In that case His Lordship Palmer CJ stated that in a non-contested case, with an early guilty plea after receiving instructions from a lawyer, the starting point is less than 5 years.

The Court

The crown submitted the aggravating features for this case are the incident happened at night and the action was unprovoked, however the latter cannot be that or in such case as rape.

The counsel for the accused has described his client as opportunist, but the chance of sexual intercourse with victim is unlawful or rape, a ridiculous and awful opportunity.

And with that the accused must face the consequences or sentence that would deter him and those who practices or intend to involve in this type of unlawful sexual behaviours. And a considerable custodial sentence will be imposed on those who commit such offences.

You have entered a guilty plea early and or may be after receiving instructions from your lawyer and I give to you credit for plea of guilty and no previous conviction. These are taken into account and your remand in custody in this sentence.

For the accused Cosmas Haiea, it is my view that the appropriate sentence for you is 4 years, and therefore I sentence you to 4 years imprisonment.

The period spent in custody to be deducted from the sentence.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge