R v Tauniu [2018] SBHC 96; HCSI-CRC 239 of 2016 (7 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tauniu
Citation:
Date of decision:	7 November 2018
Parties:	Regina v Joses Timothy Tauniu
Date of hearing:	10 October 2018
Court file number(s):	CRC 239 0f 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	Accordingly, the court sentence you Timothy Joses Tauniu to 4 years imprisonment. The period spent or remand in custody to be deducted from his sentence.
Representation:	Ms. S. Ramosae for the Crown Mr. S. Aupai for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code
Cases cited:	R v Ligiau and Dori, Soni v Regina, R v Manisonia, Regina v Gua

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 239 of 2016

REGINA

v

JOSES TIMOTHY TAUNIU

Date of Hearing: 10 October 2018
Date of Judgment: 7 November 2018

Ms. S. Ramosae for the Crown
Mr. S. Aupai for the Accused

SENTENCE

Introduction

Maina PJ: The defendant, Timothy Joses Tauniu pleaded guilty and convicted on one count of rape contrary to section 136 of the Penal Code and now appears for sentence.

Facts of the case

Briefly, the agreed facts is that in the afternoon on Saturday 19^th September 2015 the complainant Maria Teikaganigi went and joined the defendant and Tepoge to drink 2 litres of homebrew beer at the defendant’s home. While they were drinking homebrew Brenden Taumoana -17 years old, Floyd Tango -15 years old and James Glengata -13 years old arrived at Tauinu’s house.

Later the complainant Teikaganigi was drunk and fell asleep in the Defendant’s house. Defendant went to her and pushed his hand into the complainant’s trousers and touched her vagina. He removed the complainant’s trousers and also his own trousers and there he had sexual intercourse with the complainant while she was sleeping. Defendant had sexual intercourse with the complainant in front or while the three young boys were watching him.

After he had sexual intercourse with the complainant, he then put his penis in her mouth. The complainant did not wake up when the defendant was having sexual intercourse with her. She woke up in the next day and left the defendant’s house. The complainant is the defendant’s niece.

Submissions

The counsels for the prosecution and defence made written submissions with references to case laws on sentences in this jurisdiction. I appreciate the written submission from the counsels.

Counsel Ramosae submitted that the court to take into account in the sentence the aggravating factors as the seriousness of the offence, the commission of the offence in front of 3 teenagers and complainant suffered with some physical abdominal pain as result of the rape as shown in the medical report. Counsel said it is a breach of trust as the victim is his niece, a behaviour not welcome in our society or culture.

And in his submission, Counsel Aupai referred to the common theories of sentences of deterrence, separation, rehabilitation and retribution. He said his client should be given a significant discount for his plea of guilty that indicates his remorse and that substantially serve time for the court and the task for the prosecution to prove its case beyond reasonable doubt.

Counsel said his client accepted the seriousness of the offence involving a breach of trust by a relative and acknowledges the offence is also against his religion, custom and law and that the victim was drunk.

The court

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

And with an early guilty plea in a non-contested case his Lordship Sir Albert 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.

With aggravating factor it only tends and does not itself constitute a ground for sentence rather to justify increase or mitigating features for a reduction of sentence. And in all circumstances, each case must be considered in the light of its own merit or circumstances.

In this case there are aggravating factors the victim was drunk and slept or numb away; breach of trust (as the complainant is the defendant’s niece) thus the defendant has the ensuring and safeguarding responsibility toward the victim.

Defendant put his penis in the complainant’s mouth, that may be to fulfil his sexual endure or feeling but it would be a different story if the victim felt that an object in her mouth and or accidently bite the defendant’s penis. It would be crashed, banged or smashed as eating the food because the mouth is known or accepted as just for eating food and drink, not for the penis. This skill or ability for the use of mouth may be grasped from the movies, influences of internet or new people’s inventions for the use of the mouth. But this attitude by defendant with his sexual endure was cruel to the victim and amount or attribute to aggravating feature in this case.

The guidelines laid down in Lagiau case had been re-visited or discussed by Pallaras J in R v Soni [2012] SBHC 120; HCSI-CRC 128 of 2011 and Apaniai J in Regina v Gua [2012] SBHC 137; HCSI-CRC 195 of 2011 (5 December 2012). Although and later the Ligiau case was accepted by the Court of Appeal in Soni v Regina [2013 SBCA 6, both judges concurred that the court must utilise the sentencing powers bestowed upon it by the legislature and to protect society. There are increase of cases of this nature with people who have no regard to the dignity and safety of women and children.

I share the same view with their lordships and time has now come to re-visit the bench mark set down in the Lagiau case. One thing is common now and reported by the media that rape or sexual offence cases is increasing in our society and become the regular cases with the court.

It is then a concern in our society or country and on part of the court, may I warn that whoever involve in such rape and sexual activities and if he appears in the court and found guilty or convicted may expect a considerable length of time or years in prison.

The offence was committed on 19^th September 2015 and defendant has been remanded since 13^th October 2015, a period of 3 years and some days in custody. Defendant had initially pleaded not guilty, awaiting trial until 27^th July 2018 when he changed his plea or entered into guilty plea. Counsels were busy with others criminal cases until the case was called on 8^th October 2018 and then to 9^th October 2018.

I noted from the Defence’s submission that Defendant assisted his community and do church works and he hope after serving the any sentence he will to attend Bible College at his home/island in Rennell Island. And these are good for him or future living with his community.

And taking into account the plea of guilty, aggravating features, mitigation factors, no previous conviction and delay, it is my view that the defendant deserves sentence of 4 years. And accordingly, I sentence you Timothy Joses Tauniu to 4 years imprisonment.

The period spent or remand in custody to be deducted from this sentence.

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