R v Davi [2020] SBHC 109; HCSI-CRC 142 of 2019 (16 December 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Davi
Citation:
Date of decision:	16 December 2020
Parties:	Regina v David Davi
Date of hearing:	12 October 2020
Court file number(s):	142 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Dismiss charge of defilement in count 1 as being time barred. 2. Enter conviction for the offence of rape for counts 2, 3 and 4. 3. Impose sentence of imprisonment as follows: (i) Count 2: 9 years; (ii) Count 3: 10 years; and (iii) Count 4: 11 years. 4. Direct that counts 2 and 3 to be made concurrent to count 4, the total sentence of imprisonment therefore is 11 years. 5. The period spent in custody is to be deducted from the sentence imposed.
Representation:	Mrs. M. Suifa’asia for the Crown Mr. L. Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S.143 (1) (a), S.143 (2), Penal Code (Amendment) (Sexual Offences) Act 2016, S.136 (F) (1) (a) and (b)
Cases cited:	R v Roberts and Roberts [1982] 4 Cr. App. R (s) 8, R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013]SBCA 19, Soni v Reginam [2013]SBCA 6

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 142 of 2019

REGINA

V

DAVID DAVI

Hearing: 12 October 2020
Sentence: 16 December 2020

Mrs. M. Suifa’asia for the Crown
Mr. L. Waroka for the Defendant

Palmer CJ.

1. You have been charged with four offences, one count of defilement contrary to section 143(1)(a) of the Penal Code, and three counts of rape contrary to section 136(F)(1)(a) and (b) of the Penal Code (Amendment)(Sexual Offences) Act 2016. You entered guilty pleas to all the offences and the matter listed for hearing of facts and submissions on sentence including mitigation.

Count 1-Defilement.

2. The count of defilement related to the first victim in 2015. That offence was charged under the former section 143(1)(a) of the Penal Code, which described such offence of defilement of a girl between the age of 13 and 15 years as a misdemeanor, with a maximum penalty of five years in prison.
3. The age of the victim in this case was put at between thirteen and fifteen years. Section 143(2) however, also contained a time limit of twelve months, when such prosecution had to be commenced by, failing which, a bar to commencing prosecution was imposed.
4. In his submissions in mitigation, Mr. Waroka of Counsel for the Defendant submitted that the time limit in this case had lapsed without any prosecution being instituted. He submitted that the prosecution of this case was not instituted until on or about 6^th June 2018, some three years after the commission of the offence on the 5^th May 2015. Accordingly the charge should be dismissed and the defendant acquitted.
5. A copy of the charge sheet has been produced in Court by Mrs. Suifa’asia of Counsel for the Crown, which confirmed that the complaint was instituted out of time at the Magistrates’ Court on 6^th June 2018; this is conceded by Mrs. Suifa’asia.
6. I have had opportunity to consider the legal issue raised and satisfied that the charge being time barred should be dismissed. It is necessary however to point out that this type of offence should not be left unattended to in such a manner as has happened in this case. The records showed that the case was reported to police on or about 17 June 2015, about a month later. No complaint however was laid until June 2018, which amounts to unacceptable and inordinate delay and tantamount to negligence on the part of the police. The police have a dedicated unit that deals with sexual violence cases and delays of this kind should not be allowed to occur.
7. No explanation as well has been provided for the inordinate delay and resulting in the matter being time barred. I reiterate that sexual violence offences against children and girls should always be given high priority by the police and the courts. In this case, the offender has escaped prosecution and the victim and community denied justice.

Counts 2, 3 and 4.

8. These three counts relate to three incidents of rape committed on the 10^th, 11^th and 12^th of May 2018 at Tangare settlement, Hagalu village, Gela, Central Islands Province.
9. The defendant portrays himself as a “custom medicine man” or “custom healer”, and which had attracted the victim to seek his assistance to recover a sum of money in the sum of $8,000.00 that another woman had taken from her. It is not clear if the money was borrowed and to be repaid or was stolen.
10. The victim sought help from the Defendant for the recovery of her money but instead was well and truly deceived and sexually violated by the Defendant.
11. After performing some so called traditional charms on the victim, the Defendant left for his home village at Gela. A couple of days later, he lured her into travelling across to his village at Gela from Honiara in the pretext of collecting her money. She was then sexually violated during her stay at Gela until she was rescued by relatives who went looking for her. It is not in dispute that he had been charged for the three counts of rape but that there were numerous occasions during that time when she was repeatedly raped at the pleasure of the Defendant.

The law on rape.

12. The offence of rape is one of the more serious offences under our laws. The maximum sentence of life imprisonment is a reflection of the seriousness with which Parliament views this offence and the communities concerns and disapproval of this type of offence and the ever pressing need to protect children and girls from the predatory activity of some adults.
13. Those who commit such offences, unless there are exceptional circumstances, on conviction will expect an immediate custodial sentence^[1] to be imposed. The length of a sentence will depend on all the circumstances of each case and the presence of aggravating or mitigating factors.
14. The starting point for rape by an adult without any aggravating or mitigating features in a contested case, is five years^[2]. Where there is a feature of aggravation, the starting point has been raised from 8 to 10 years by the Court of Appeal in Pana v. Regina^[3].
15. 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 should be 10 years.
16. Credit for a guilty plea is taken into account, saving the court, prosecution and defence valuable time in dealing with your case.
17. Your guilty plea has also in the circumstances of this case, saved the victim the embarrassment of having to give evidence under a stressful and traumatic period that she had been exposed to. I note your guilty plea is also consistent with remorse.
18. I note this is your first time to appear in court, that you have no previous convictions and that you have cooperated well with police.
19. I also note that no physical harm or injury was inflicted on the victim throughout that period of abduction. I note the absence of weapon in the commission of the offence.
20. I also take into account the delay of more than two years in the listing and hearing of your case for trial and take that into account in the sentencing process.
21. On the other hand, I note the following aggravating features that were present in your case. First, that you had a relationship of trust as a custom healer which had been breached. You took advantage of it to lure the victim to travel all the way from Honiara to Gela where it was difficult for her to escape once she came under your control. She could not escape even if she wanted to as she was in a strange place and relied entirely on you for her safety and well-being. You took advantage of your position of trust and authority and her vulnerability, and sexually violated her not once but as indicated in the facts, repeatedly, although you had only been charged with 3 counts.
22. Secondly, despite her pleading with you to allow her to return to Honiara you refused until you were caught up by those who were searching for her.
23. Thirdly, the offence was repeated on numerous occasions, although you had been charged with only three counts of rape.
24. Fourthly, the victim was held captive for a period of time. This is a very serious violation of her freedom of movement and a form of violence to her emotionally and mentally. During that period of captivity you took her from place to place and deprived her of the comforts of a home, proper food, drink and other basic needs and comfort. She would have been traumatized and terrified of what you had done to her.
25. Fifthly, there is an age disparity, she was 20 years old and you were 51 years old at the time of the commission of the offence. As the more mature person you owed a duty of care and responsibility towards her, which you failed to undertake. You also took advantage of that age gap to dominate and control her and to rape her repeatedly.
26. The courts have a duty to protect the helpless, weak and vulnerable, by ensuring that an immediate custodial sentence is imposed with this type of offending. A clear message also needs to be sent out that those who commit this type of offence will expect a lengthy prison sentence.
27. I am satisfied the following sentences should be imposed taking into account all the aggravating and mitigating factors together:
    • (i) Count 1: 9 years imprisonment;
    • (ii) Count 2: 10 years imprisonment; and
    • (iii) Count 3: 11 years imprisonment.
28. Taking into account the totality principle and what is appropriate to the total criminality in the circumstances of this case, I am satisfied counts 1 and 2 should be made concurrent to count 3. The total sentence to be served therefore is 11 years. The period spent in custody is to be deducted from the prison sentence. You have a right of appeal if aggrieved by the sentence.

Orders of the Court:

1. Dismiss charge of defilement in count 1 as being time barred.
2. Enter conviction for the offence of rape for counts 2, 3 and 4.
3. Impose sentence of imprisonment as follows:
   • (i) Count 2: 9 years;
   • (ii) Count 3: 10 years; and
   • (iii) Count 4: 11 years.
4. Direct that counts 2 and 3 to be made concurrent to count 4, the total sentence of imprisonment therefore is 11 years.
5. The period spent in custody is to be deducted from the sentence imposed.

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] R. v. Ligiau and Dori, [1986] SBHC 15 SILR (3 September 1986) Ward CJ; endorsed by the Court of Appeal of Solomon Islands in Soni v. Reginam, [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).
^[3] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).