R v Firinao [2019] SBHC 104; HCSI-CRC 523 of 2017 (14 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Firinao
Citation:
Date of decision:	14 February 2019
Parties:	Regina v Wilson Firinao
Date of hearing:	13 February 2019
Court file number(s):	523 of 2017
Jurisdiction:	Criminal
Place of delivery:	High Court of Solomon Islands, Honiara Court Room 1
Judge(s):	Palmer CJ
On appeal from:
Order:	Convict the defendant on his guilty plea for the offence of rape Impose a sentence of two years Direct that the whole sentence of two years to be suspended in full for two years herewith
Representation:	Mr. Bradley Dalipanda for the Crown Mr. Henry Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6, Regina v Oge [2004] SBHC 72 , Regina v Pana [2013] SBCA 19, R v Roberts and Roberts [1982] 4 Cr. App. R (s) 8

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 523 of 2017

REGINA

V

WILSON FIRINAO
Defendant

Date of Hearing: 13 February 2019
Date of Sentence: 14 February 2019

Mr. Bradley Dalipanda for the Crown
Mr. Henry Kausimae for the Defendant

Palmer CJ.

1. You have been charged with one count of rape, contrary to section 136 of the Penal Code, that on the 26^th day of April 2008 at Anokwasi village, North Malaita you committed unlawful sexual intercourse with the victim, (“ME”) without her consent.
2. When you were arraigned yesterday you entered a guilty plea and I heard facts in relation to the circumstances of offending and sentencing and mitigation submissions.
3. Rape is always regarded as a very serious crime and carries a maximum sentence of life imprisonment, which is a reflection of the seriousness with which this type of offence is regarded by Parliament and reflective of the communities concerns and aversion to this type of crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence^[1]. There are several reasons why a custodial sentence is necessary^[2]. First, it reflects the gravity of the offence. Second, to reinforce public disapproval and community aversion of this type of offence. Thirdly, it serves as a warning to dissuade others from the offence; fourthly, as a punishment and finally, to protect women and girls.
4. In custom, the offence of rape is equally regarded as a very serious wrong or offence and compensatory payments inevitably follow the event. Women and girls in Melanesian society and customary traditions are regarded with high esteem and consideration, which is of no less significance in Solomon Islands society. The law in our Penal Code merely reflects this significance and importance in our society.
5. The length of a sentence will depend on all the circumstances and each case is to be considered on its own merit and sentences of varying terms of imprisonment are imposed depending on the presence of aggravating or mitigating factors.
6. The sentencing regime for rape in Solomon Islands has been set in other cases, and it is not necessary to set these out other than to point out the main features to them.
7. 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. Where there is a feature of aggravation, in a recent case Pana v. Regina^[5], the starting point has been raised from 8 to 10 years.
8. I am satisfied in the circumstances of this case the starting point of 10 years is justified for there are aggravating features present, including the presence and use of a bush knife to threaten the victim with.
9. I note the following aggravating features which will increase sentence accordingly. These include the following matters.
10. First, is the breach of trust of the defendant in relation to the victim as a cousin brother. Through this relationship you were able to have access to the victim late at night in the kitchen area. Secondly, the difference of age between the two of you, she was only 15 years old at that time, a child while you were already twenty. Both those factors place you in a responsible position towards the victim but which you breached and abused for your own self-gratification.
11. Thirdly and of equal seriousness is the use of a bush knife to threaten the defendant with, which engendered fear and shock on the victim, knowing that you were her cousin brother.
12. I am satisfied the combined effect of all these will increase sentence from 10 to 12 years accordingly.
13. On the other hand, I give credit for the following mitigating factors that have been raised on your behalf. I accept submissions from your lawyer, that there are some significant mitigating factors in this case and which he had sought to submit to the court which warranted a departure from the usual sentencing regime which is normally imposed by the court on sentences for rape.
14. First, is your previous good character, that you do not have any previous convictions, and this is your first time to appear in court. In addition to this is your youth, that you were a fairly young person of twenty years when you committed this offence, which should be considered as a matter to be taken into account in the peculiar circumstances of this offence and that since then you have demonstrated real changes in your life thereafter.
15. The second and which I consider to be a significant mitigating factor which I am bound to take into account in your favour is the early guilty plea that you had indicated right from the outset as set out in submissions of your lawyer. According to information which your lawyer was able to access from the brief of evidence provided to the Crown and disclosed to the defence, in your record of interview with police on or about the 30^th April 2008, you had already admitted committing the offence. That is of great significance for your case should then have been given priority thereafter for processing through the criminal justice system. The delay in that amounts to unacceptable failure on the part of the police and the system and a denial of proper justice to the victim and the community for the offence that has been committed but allowed to drag on for all those years up until this week.
16. I also note the guilty plea apart from its utilitarian value of saving court time, resources and expense in avoiding a trial, is consistent with remorse and contrition on your part and a willingness to accept the consequences of your action. This is always the beginning of a successful process of reformation and rehabilitation.
17. For the guilty plea, I will give a discount of 3 years, which reduces the sentence to one of 9 years.
18. This brings me to the second significant mitigating factor, that of delay. The delay in having this case progress through timely in the criminal justice system is unacceptable and inordinate. This is one of those few cases that somehow has not been attended to diligently by all concerned, in the police and the court system, delay amounting to more than 10 years, awaiting his trial. Even if there may be reasonable explanations provided by respective institutions charged with the administration of justice, a delay of some 10 years is simply unjust and unfair not only to this defendant but also to the victim and the community. Very little of that delay however, can be attributed to the defendant, to the contrary, the material and submissions placed before this court showed that the defendant had been diligent and faithful in not only attending to court matters but also as and when required by police. I will give significant discount for the delay in this case.
19. For the delay of ten years, I have decided to give another discount of 5 years, which reduces the sentence further to one of 4 years.
20. For the other mitigating factors mentioned, including the period already spent in custody, I will deduct another two years.
21. This brings me to consider the submission by learned Counsel Mr. Kausimae to consider having any sentence to be imposed by the court to be suspended in its entirety.
22. In his submissions on this matter, Mr. Kausimae referred to the case of R v Oge^[6] in which there was a delay of 5 years. The defendant had been charged for rape and a trial had proceeded following a not guilty plea. His defence in the trial was on the issue of consent and the victim had been subjected to cross examination. His Lordship, Kabui J., as he then was, imposed a sentence of imprisonment of 2 years but suspended that in its entirety on the grounds of delay and change of circumstances of the defendant.
23. In his submissions to this court for a similar approach to be taken on a similar sentence that the court might impose, Mr. Kausimae submits that if there was to be any case where this approach is to be considered, a fortiori, this case meets all the requirements. I note there has been an early guilty plea as opposed to a trial, the delay factor in this case has been of a longer duration, more than ten years; double that in R v Oge’s case; as well the defendant’s circumstances have changed for the better for himself and his young family. He has been involved in the meantime since, in many useful activities and sought to become a useful member in society rather than an ongoing burden and a liability. I take these into account in his favour.
24. I note he has since August 2011 gotten married and a child born in June 2012. In 2009, he worked as an Enumerator during the National Census. He has a small cocoa and coconut plantation which he had been working on for income. He has also done a two weeks business course in 2011 conducted by the “Solomon Islands Small Business Enterprise” to help improve his skills and knowledge and opportunities for work. He has also done in the same year a short accounting course run by the “TIMED Institute of Business”. In 2014 to 2018 he was a Board Member representing Zone 4 in Ward 8 of the Cocoa and Coconut Farmers Association in North Malaita. And recently, he has had to travel to Honiara for work and now works with the owner of Kosol, Mr. Kim, as a security guard at his residence. Mr. Kim has provided suitable accommodation for him and his family at a servant’s quarter. I note that any custodial sentence will affect his future prospects as a security guard and his family. I take these into account in considering sentence.
25. I also take note of the reference provided by the OCS, Inspector Peter Kinita, of Malu’u Police Post, for good behavior and assistance he had rendered to police at Malu’u on numerous occasions.
26. In addition I take note of the customary settlement, compensation and reconciliation that had occurred on 30 April 2008, between the two parties to resolve the matter in custom and to enable the parties to resume normal relations thereafter. One of the chiefs, from the Rumunafau House of Chiefs John Kiri, who witnessed the ceremony has also filed a letter of reference confirming the transaction.
27. In deciding whether or not to depart from the usual sentences of imprisonment that follow a conviction of rape, I take all these into account in determining whether or not the sentence of two years imposed should be suspended or not.

Sentence.

28. Balancing everything, it is my considered view that the peculiar circumstances in this case justify a departure and for the reasons enumerated above, I order that the remaining sentence of two years imposed is to be suspended in full for two years herewith. If he does not re-offend then the sentence will lapse thereafter.

Orders of the Court:

1. Convict the defendant on his guilty plea for the offence of rape.
2. Impose a sentence of two years.
3. Direct that the whole sentence of two years to be suspended in full for two years herewith.

The Court.

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^[1] R v Roberts and Roberts [1982] 4 Cr. App. R. (S.) 8: Lord Lane CJ, Skinner and Leonard JJ.
^[2] (ibid).
^[3] [1986] SBHC 15 SILR (3 September 1986) Ward CJ
^[4] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).
^[5] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).
^[6] [2004] 72; HC-CRC 396 of 1999 (21 September 2014)