R v Evanis [2018] SBHC 93; HCSI-CRC 374 of 2017 (20 July 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Harry Alick Evanis
Citation:
Date of decision:	20 July 2018
Parties:	Regina v Harry Alick Evanis
Date of hearing:	18 July 2018
Court file number(s):	CRC 374 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	1. Ct 1, 2 and 3 to be served concurrent and accused to serve 4 years imprisonment, 2. Ct 4 and 5 to be served concurrent and accused to serve 4 years imprisonment, 3. Accused to serve a total of 8 years imprisonment, 4. Time spent in custody to be deducted from the total of 8 years imprisonment to be served.
Representation:	Ms. A Ratu for Prosecution Mr. H Kausimae for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, Penal Code (Amendment (Sexual Offences) Act 2016.
Cases cited:	Regina v Alualu & others, R v Ligian and Dori, Regina v Gole, Regina v Koroua

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 374 of 2018

REGINA

v

HARRY ALICK EVANIS

Date of Hearing: 18 July 2018
Date of Judgment: 20 July 2018

Ms. Ratu for Prosecution
Mr. Kausimae for Defendant

SENTENCE

Introduction

Maina PJ: The accused Harry Alick Evanis was charged with 5 counts for 3 charges on rape contrary to section 136 of the Penal Code and 2 charges for incest contrary to section 163 (2) (a) of the Penal Code (Amendment (Sexual Offences) Act 2016.

The accused pleaded guilty on all the charges against him. And I find him guilty upon own pleas and accordingly convicted him on 3 charges on rape and 2 charges on incest.

A maximum sentence for rape is life imprisonment and incest under section 163 (2) (a) of the Penal Code (Amendment (Sexual Offences) Act 2016 for close family member is under 13 years of age life imprisonment, thus indicate that these are very serious offences. Let alone the maximum sentence is reserved for the worst kind of cases.

Rape is described by the Justice Frank Kabui as extremely serious offence in Regina v Alualu & others [2005] SBHC 106 when he repeated the words of Chief Justice Ward in the case R v Ligian and Dori Criminal Case No. 35 of 1985:

“Rape is an extremely serious offence. It is an offence of violence based on a selfish disregard of 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”.

And incest is described by Justice Pallaras as carries with it an enormous breach of trust in Regina v Gole [2013] SBHC 183 (para 21):

“The crime of incest, apart from its physical aspects, carries with it an enormous breach of trust. A young girl's faith and trust in her father is completely shattered and her world is effectively turned upside down. It can be no exaggeration to say that her life will never again be the same and, as in this case, particularly so when a child results from the offence. Emotionally the impact is considerable”.

Aggravated features

The Defence’s submission for accused concede or accept that the offending with respect to rape is aggravated by the fact or virtue of the victim being the daughter of the accused. Accused abused a position of trust between father and daughter. And I can’t agree more to that assertion with rape charges.

Defence argues that the relationship should not be taken into account as aggravated factor with respect to incest as it is an element of the offence. For sure it is so, but an abused position of trust to young daughter (victim) causes distress and long standing disgrace to the victim, family and those who have close relationship with them.

For the charges of rape, the age of the victim for being 12 years and accused said he is 70 years. No evidence produced to confirm that but by appearance he be at 50s or so. Certainly differences of is an aggravating factor.

The commission of five separate sexual offences by a father to a daughter or victim is certainly circumstance of aggravation. And the fact that the offending is aggravated because the victim was impregnated by the accused as a result of the offending. Rape is repeated and the victim is very young worse so, victim a daughter.

I give credit and take into account in the sentence the early plea of guilty by the accused on five counts and being the first offender. And the age of the accused and there was no violence used.

Rape cases had been dealt with in this jurisdiction and counsels in the submissions made references to the High Court and Court of Appeal cases for the purposes of the starting point in the sentence for this case. I noted the case Regina v Koroua [2012] SBHC 37; HCSI-CRC 492 of 2010 (1 May 2012) by Justice Apaniai when made reference to sentences of the rape cases that were dealt and aggravating or mitigating features in this jurisdiction. He stated what are to be treated as aggravating features. I take or adopt the view and for this case the aggravating factors with rape is repeated and the victim is very young, worse so victim a daughter.

Taking in account the aggravating factors of the case and the mitigating factors in the favour accused Harry Alick Evanis and noting the case laws for rape and incest in this jurisdiction, it is my view that a sentence to be imposed on you for the offence should also reflect the abuse of trust and the shame you have put on the victim. You have imposed a serious and long-lasting harm to the victim.

I therefore sentence you to 20 years imprisonment for all the five charges as follows:

• Count 1: Four (4) years imprisonment
• Count 2: Four (4) years imprisonment
• Count 3: Four (4) years imprisonment
• Count 4: Four (4) years imprisonment
• Count 5: Four (4) years imprisonment

ORDERS

1. Ct 1, 2 and 3 to be served concurrent and accused to serve 4 years imprisonment,
2. Ct 4 and 5 to be served concurrent and accused to serve 4 years imprisonment,
3. Accused to serve a total of 8 years imprisonment,
4. Time spent in custody to be deducted from the total of 8 years imprisonment to be served.

THE COURT
......................................................
JUSTICE LEONARD R MAINA
PUISNE JUDGE