R v Rivoqani [2018] SBHC 87; HCSI-CRC 186 of 2015 (26 July 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Rivoqani
Citation:
Date of decision:	26 July 2018
Parties:	Regina v Jones Rivoqani
Date of hearing:	26 July 2018
Court file number(s):	CRC 186 of 2015
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Sir Palmer, Chief Justice
On appeal from:
Order:	1. Enter conviction on each of the four counts of rape and impose sentences of five years each. 2. Direct that each sentence is served concurrently, the total sentence to be served is five years. 3. The period spent in custody is to be deducted from the sentence herewith.
Representation:
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Robert and Roberts; R v Ligiau and Dori; Soni v Reginam

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINANL JURISDICTION

Criminal Case No. 186 of 2015

REGINA

v

JONES RIVOQANI

Date of Hearing: 26 July 2018
Date of Sentence: 26 July 2018

Mr. R. B. Talasasa Director of Public Prosecutions
Mr. A. Tinoni for the Defendant

SENTENCE

Palmer CJ.

1. You were initially charged with seven counts of rape, which you entered not guilty pleas and the matter fixed for trial at Gizo. At commencement of trial however, after some negotiations and discussions between your lawyer and the Director of Public Prosecutions (“the Director”), these were reduced to four counts, the other three counts nolled by the learned Director, the charges dismissed and you were discharged. You were then re-arraigned on the remaining four counts and you entered guilty pleas. I take those guilty pleas into account in considering the appropriate sentence to impose and will comment further on this in this sentence.
2. The offence of rape has always been regarded as a serious offence for it entails a violation of the personality and dignity of the victim affected and “is an offence of violence based on a selfish disregard for the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long-lasting harm to the victim”^[1]. The fact of rape itself entails violence against the womanhood and sexuality of a woman, which is the most personal, private and special possession of any woman or girl that she can give away to the man she loves, in marriage for life. This is why rape in any of its forms is frowned against by society.
3. In the case of R. v. Roberts and Roberts^[2] the English Court of Appeal, per Lord Lane CJ, made some pertinent comments in relation to sentencing guidelines in rape cases as follows:
   • “Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence.” He continued: “A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly, to emphasize the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but by no means least, to protect women. The length of the sentence will depend on all the circumstances.”
4. Those comments are equally relevant to your case.
5. The gravity of the offence of rape is reflected in our law with a maximum sentence of life imprisonment which can be imposed in the most serious of cases. Each case however, is to be considered on its own merits and sentences of varying terms of imprisonment are imposed depending on the presence of aggravating or mitigating factors.
6. The starting point for rape by an adult, as set out in the case of R. v. Ligiau and Dori^[3] and which has been recently endorsed by the Court of Appeal of Solomon Islands in Soni v. Reginam^[4], without any aggravating or mitigating features in a contested case, is five years.

But 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.
• At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.
• Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.
• The crime should in any event be treated as aggravated by any of the following factors:
• (1) violence is used over and above the force necessary to commit the rape;
• (2) a weapon is used to frighten or wound the victim;
• (3) the rape is repeated;
• (4) the rape has been carefully planned;
• (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;
• (6) the victim is subjected to further sexual indignities or perversions;
• (7) the victim is either very old or very young;
• (8) the effect upon the victim, whether physical or mental, is of special seriousness.

Where anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point. (Emphasis added).
The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.” (Emphasis added).

7. I am satisfied the starting point in this case, where there is already present an aggravating feature, of a person who is in a position of trust to the victim, and not contested, five years. The presence of any aggravating or mitigating factors will obviously increase or reduce sentence accordingly.
8. I take note of the following aggravating features in this case referred to by the learned Director in his sentencing’s submissions, which will have the effect of increasing sentence accordingly.

First, is the age of the victim at 14½ years old, which according to law, is still a child. Secondly, the age disparity between yourself, at the time of offending you were about 43 years old and the victim only a teenager. Thirdly, the relationship between you and the victim, where you were in a position of trust and responsibility as a father. This is the closest and most personal of any relationship, it is sacrosanct and forbidden in custom, and places the highest sense of duty of care and responsibility upon you.
Fourthly, this is not a one off incident, committed from a momentary loss of self-control, a moment of weakness, or giving in to temptation, but was repeated on several occasions. It is accentuated by the fact you had opportunity to realize your mistakes and desist from continuing further with those offences. The victim, even young had the sense of morality and courage to resist but you overpowered her and purposely engineered the interventions to enable you to commit the offences.
Fifthly, the use of threats to overpower her will and mind and cause her to succumb to you through fear. And finally, the serious effects your actions had upon her physically, mentally and emotionally, accentuated by her young age and by virtue of the position of trust and responsibility you had.

9. Putting all those aggravating features together, they increase the sentence by three years to eight years.
10. These however, have to be balanced by the mitigating factors referred to by your lawyer in his written submissions. The prior offence of careless driving is discounted as being not directly relevant to this set of offences. I note you have a big family and that at time of arrest you were residing with your family at your home village. I note that since incarceration, your wife has had to look after your family, including your children and that this has made it difficult for her, but this is something you should have thought about when you committed the offences of rape against the victim, for you ought to have known that if convicted of the offence, you would have to spend a long time in prison. I also note that you have involved yourself in worthwhile Biblical studies during your time in remand in custody and have sought to turn your life around spiritually and mentally. This is important for your future rehabilitation and reintegration back into your family and community.
11. I give special credit for your guilty plea. This is significant in this case for the following reasons. It not only saves court time and expense, but also saves the victim from having to be subjected to the rigors of a trial, being examined and subjected to intense cross examination in the witness box and in a strange formal environment and having to be re-exposed to further trauma, shame and guilt in having to re-live that dark part of her past, best forgotten and buried in her memory. I note submissions of learned counsel, Mr. Tinoni that the victim is now married, has children of her own and moved on in life, a best outcome for her.
12. Your guilty plea is also significant for it shows remorse on your part, that you are sorry for what you have done, amply and emphatically stated by your lawyer in his written submissions. It is consistent with good prospects of rehabilitation and reintegration in society. This is always the first step to change, in acknowledging your mistakes, accepting responsibility for them, making amends in custom etc. through reconciliation and moving on in life, for you cannot continue to look backward or remain stagnant. I accept submissions of your lawyer that you have good prospects of rehabilitation. I note that you are prepared and willing to straighten things out with your family and community after release from prison.
13. I give due credit for those mitigating factors and deduct two years which bring your sentence to one of six years.
14. I note also the delay in this case of some three years and seven months, which is a very long time to spend in prison while waiting for your trial. I give credit for that and deduct another year from the sentence, bringing the overall sentence to one of five years.
15. On reflecting on the principle of totality of sentence for the four occurrences of rape, and taking into account principles of punishment, deterrence, rehabilitation, and protection of women, I am satisfied the sentence of five years adequate and appropriate. You are convicted accordingly of all four counts and sentenced to five years imprisonment for each count. In terms of whether the sentences should be made to run consecutively or concurrently, I am also satisfied that they should be made to run concurrently, for to do otherwise would be to impose a sentence that would have a crushing effect upon your life, it is important you are given an opportunity to see the light at the end of the tunnel and to be able to move in life. I also order that the period spent in custody is deducted from your sentence. You have a right of appeal if you are aggrieved with this sentence.

Orders of the Court:

16. Enter conviction on each of the four counts of rape and impose sentences of five years each.
17. Direct that each sentence is served concurrently, the total sentence to be served is five years.
18. The period spent in custody is to be deducted from the sentence herewith.

Sir Albert R. Palmer CBE
The Court.

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^[1] R. v. Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986), page 2.
^[2] (1982) 4 Cr. App. R. (S.) 8: Lord Lane CJ, Skinner and Leonard JJ.
^[3] [1986] SBHC 15 SILR (3 September 1986) Ward CJ, in which the views of Lord Lane CJ in R. v. Billam (1986) 1 WLR 349, were adopted.
^[4] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).