R v Mola [2018] SBHC 95; HCSI-CRC 120 of 2014 (19 October 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Mola
Citation:
Date of decision:	19 October 2018
Parties:	Regina v Adam Talai Mola
Date of hearing:	15 & 16 October 2018
Court file number(s):	CRC 120 of 2014
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	And accordingly, the court sentence you, accused adam Talai Mola to 3 years imprisonment
Representation:	Mr. O. Ratu and P. Tabepuda for the Prosecution Mr. C. M Ruele for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, Penal (Amendment) (Sexual Offences0 Act 2016
Cases cited:	R v Ligiau and Dori, Soni v Regina, Regina v Maewanusi, Regina v Manisonia, R v Sisiolo

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 120 of 2104

REGINA

v

ADAM TALAI MOLA

Date of Hearing: 15 and 17 October 2018
Date of Judgment: 19 October 2018

Mr. O. Ratu and P. Tabepuda for the Prosecution
Mr. C. M Ruele for the Accused

SENTENCE

Introduction

Maina PJ: The accused ADAM TALAI MOLA is charged with one count of rape contrary to section 136 of the Penal Code and he pleaded guilty. And I convicted him on the charge of rape.

Fact of the Case

On the 9^th November 2006 the victim Serah Kiko and her two friends, Alice Tulei and Betty None went to watch the video movies at Lata Market house. After the first movie her two friends left and the victim stayed to watch another movie. Accused who was closed to the victim told her that he wanted to see Bertie but she had left. He asked the victim the house where she slept.

The Accused then forced or insisted the victim to leave the market house (where the movie was shown) and go with him. Accused threatened to hit the victim and said to her if any one there tried to stop him he will fight him. From that the victim went out and the accused followed her.

As they approached the house where the victim slept, the Accused grabbed and warned her not make any noise or tried to do anything otherwise he will harm her.

Accused dragged the victim into the bush and lay underneath a bread fruit tree. There, the accused took off her skirt and widen or separated the victim’s legs. He then undo or took off his trousers and lay on top of her. He then had sexual intercourse with her.

When the Accused penetrate his penis into her vagina it was painful and so victim screamed but the accused closed her month with his palm. After that the accused stood and left. The victim went home crying and told Roselyn Ratu about the incident and later the matter was reported to the Police.

The Accused pleaded guilty to the charge and I convicted him on the charge of rape.

Submissions

Both counsels made submissions and they made references to case laws on the sentence in this jurisdiction.

Counsel Ratu for the Crown submitted for the court to take into account in the sentence the aggravating factors as the disparity of age as complainant was 12 years and accused was 25 years at the time of offending, the use of force and the breach of trust as the victim is his niece.

And counsel Ruele for the defence do not dispute the aggravating factors. He submitted as for a mitigating factor the length of time taken to dispose this case and that it is now almost 12 years or approximately 11 years 11 months. It was 7 years and 4 months after then this case was committed to High Court and awaited trial or disposal to this date. Counsel Ruele said that there is an unreasonable delay for the case to be processed in the justice system. He asked a consideration for deduction of any sentence in this case against his client.

The starting point or principle for sentencing on charge of rape in this jurisdiction appears to be settled by the case famous case of R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986) and approved by the Court of Appeal in the case Soni v Regina [2013 SBCA 6, Criminal Case 27, 28, 35 of 2012 when the court ruled that in the absence of any aggravating or mitigating factors in a contested case the starting point for rape is 5 years.

And my brother Judge Foukona in the case Regina v Maewanusi [2010] SBHC 53; HCSI-CRC 384 of 2009 (17 August 2010) when sentencing the accused in this non-contested said:

“In determining the appropriate sentence, considering the circumstances surrounding this case, though quite difficult, as always be, in circuits, to have within reach the guidelines in case laws, I feel that the level of starting point should be lower than the starting point ascribed in Ligiau and Dori's case; because of the fact that this is not a contested case, and there are mitigating features and aggravating factors present. Beside that there is an element of delay for five years which has a direct bearing on this case”.

And again his Lordship Palmer CJ in the Regina v Manisonia [2017] SBHC 107; HCSI-CRC 241 of 2017 (23 November 2017) 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”.

I concur that the starting point for non-contested is less 5 years and that has been given or stated in the rape cases in this jurisdiction. And generally, the penalties imposed by this court in the past rape cases ranges from 3 - 4 ½ years.

And in R v Sisiolo CRC 194 of 2007, the accused pleaded guilty to 4 counts of rape, 3 counts with to the same victim and 1 count in relation to a different victim. The accused had previous convictions on rape. He was sentenced to 8 years for each count and served concurrently.

With the above sentiments in the sentence, the cases are to be decided by its own merit or circumstances and sentence depend on the seriousness of the case.

Counsel Ratu for the Crown submitted the aggravating factors as the age differences between victim (12) and accused (25), suffered injury to her vagina as a result of the sexual act committed on her, accused was drunk, abuse of trust (defendant’s niece). Counsel Ruele for defence agreed to them as the aggravating factors in this case

I accept that and as alluded by the counsels and is also a serious offence and would have a long-term effect on the complainant. And in a small society or typical islands in Temotu Province, the effect is like a scar because the victim is subjected to further and continuous sexual humiliations and shames or insults.

Counsel Ruele made some comments and presented documents on the reconciliation and compensation to the father of the victim and the involvement of the accused as catechist at Nukapu Island. For this and on part of the accused it is good as to ensure he restores his relationship with the community or people at the small Polynesian islands.

Delay

I cannot agree more with submission by Defence Counsel Ruele that the period or delay of almost 12 years with this case and up to this date is an unreasonable and considerable for deduction of any sentence against his client is there. We are all familiar with the principle that just delay is justice denied. And he is quite right that such is also to be taken into account in the sentence.

Rape with other sexual offences is now regular or increase as reported by the media and also the sexual offence cases before the court. It may be because of the amendment in the Penal Code with the definition of rape and sexual offences under the Penal Code (Amendment) (Sexual Offences) Act 2016 but the fact shows that these offences is increasing in our society or country. And in Temotu Province at one of the islands an incident of this nature has been reported Solomon Star a week ago and described as “rape to death”.

This is a great concern and the court is obliged to impose general deterrence sentence that would deter people who practice this type or method of sex by rape and related sexual offences.

I give credit for plea of guilty and no previous conviction to the accused. And taking into account the aggravating and mitigating factors with the delay of delivering justice to this accused, it is my view that the appropriate sentence with this non-contested case is 3 years. And accordingly, I sentence you, accused Adam Talai Mola to 3 years imprisonment.

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