R v Taumasuna [2019] SBHC 107; HCSI-CRC 505 of 2016 (14 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Taumasuna
Citation:
Date of decision:	14 February 2019
Parties:	Regina v Victor Taumasuna
Date of hearing:	14 February 2019
Court file number(s):	505 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	Convict the defendant on his guilty plea for the offence of rape Impose a sentence of four years Direct the period of 2 years and 8 months spent in pre-trial custody be deducted for your sentence Direct that the prisoner be released at the rising of the Court, nothing that he would have served a substantial part of his sentence as ta point of time
Representation:	Mr. Bradley Dalipanda for the Crown Mr. Henry Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s136
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Soni v Regina v [2013] SBCA 6, Pana v Regina [2013] SBHC 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. 505 of 2016

REGINA

V

TAUMASUNA

Date of Hearing: 14 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 8^th day of February 2016 at Nariekeara village, West Are Are, Malaita, you committed unlawful sexual intercourse with the victim, (“GM”) without her consent.
2. When you were arraigned on Tuesday 12^th February 2019, you entered a guilty plea. Your case was then adjourned to this morning for hearing of the facts in relation to the circumstances of offending and sentencing and mitigation submissions.
3. Rape you will appreciate is always regarded as a very serious offence and carries a maximum sentence of life imprisonment. This reflects the level of seriousness with which this type of offence is view by our law-makers. It also reflects our communities concerns and dislike of this type of crime. Because of the seriousness of this crime, unless there are very exceptional circumstances, it will attract an immediate custodial sentence^[1]; which is the case here.
4. It is important that you understand why a custodial sentence is necessary^[2] for rape. First, it reflects the gravity of the offence. Second, to reinforce public disapproval and community dislike of this type of offence; it is wrong not only according to Christian principles but also in custom, especially in your custom where girls and women are greatly valued and highly esteemed. Thirdly, it serves as a warning to persuade and stop others from entertaining the thought to commit such offence; fourthly, as a punishment for the offence and finally, to protect women and girls, who are the weaker and more vulnerable members in our society from this very type of wrong behavior.
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 fixed 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, the starting point has been raised from 8 to 10 years, by the Court of Appeal in the case of Pana v. Regina^[5]
8. I am satisfied in the circumstances of this case, where there has been a guilty plea, and a feature of aggravation present, the starting point is 8 years.
9. I note the following aggravating features present in this case. First, is the breach of trust of the defendant in relation both to the victim as a married woman and secondly as he is related to her husband, who is like an uncle to him. You have an extra duty of responsibility and care therefore towards the woman to respect her and to look after her.
10. Secondly, is the use of force to effect the rape, even when she had clearly refused and then resisted your advances, you persisted in overpowering her and then raping her.
11. Thirdly, as a result of this offence, her home and family have been torn apart and affected. Her relationship with her husband had been affected and their nine children have been denied the safety, security and peaceful atmosphere of a home that had been torn apart by your selfish actions.
12. On the other hand, I give credit for the following mitigating factors that have been raised on your behalf. First, is your previous good character, that you do not have any previous convictions, and this is your first time to appear in court.
13. Secondly is your guilty plea, which has saved court time, resources and expense in avoiding a trial and saving the victim from having to be cross examined and to re-live the memory of such a bad, painful and shameful experience.
14. I also take into account that a guilty plea is consistent with remorse and contrition on your part; it also shows acceptance of the wrongfulness of your actions and all its negative consequences not only for the victim but also for yourself. As a consequence of your actions, your home has been torn apart, your wife has separated from you and your innocent children have been denied the sanctuary of a home and a family. This process however, is always the first steps towards successful rehabilitation, reformation and restoration. You have good prospects as a young man and I take that into account.
15. I will give you a discount of 3 years, which reduces the sentence to one of 5 years.
16. I note this was a one of incident, not planned, done on the spur of the moment and not repeated. I note the victim did not suffer from any other physical injuries and no weapon was used to threaten the victim with.
17. I take into account your personal circumstances that your very young children have had to be cared for by other members of your family. I also take note of the reference report provided by the Program Coordinator, Staff Sergeant Anna Giano, of Auki Correctional Centre, brought to the attention of the court, of your good behavior, cooperation and conduct during the period of pre-trial custody and of your involvement in other worthwhile and productive trainings and programs, such as Literacy program, Mindset Program, Church/Faith based programs, Bible Pidgin program, Cross Road, and Discipleship training, all contributing towards your future rehabilitation and re-integration back into your family and community. I also note that you have been in pre-trial custody since 16 June 2016, a period of some 2 years and 8 months and take that into account as well. I give a further discount for all these of 12 months, which reduces the sentence finally to one of 4 years.
18. I am satisfied the sentence of 4 years adequately reflects all the necessary elements of the principles of retribution, deterrence, prevention and rehabilitation in this case.
19. I further direct that the period spent in pre-trial custody be deducted from your sentence of 4 years. I note the overall effect of these is that you would have served a substantial part of your sentence and accordingly I further direct that you be released at the rising of the court.

Orders of the Court:

1. Convict the defendant on his guilty plea for the offence of rape.
2. Impose a sentence of four years.
3. Direct the period of 2 years and 8 months spent in pre-trial custody be deducted from your sentence.
4. Direct that the prisoner be released at the rising of the Court, noting that he would have served a substantial part of his sentence as at this point of time.

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).