R v Wilford [2020] SBHC 110; HCSI-CRC 491 of 2016 (21 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v James Wilford
Citation:
Date of decision:	21 July 2020
Parties:	Regina v James Wilford
Date of hearing:	17 July 2020
Court file number(s):	491 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Enter conviction for the offence of rape. 2. Impose sentence of 7 years for rape. 3. The period spent in custody is to be deducted from the sentence and therefore order that it be dated from the period the defendant was remanded in custody, being the 3rd August 2016. 4. Direct that defendant be released at the rising of the court, being satisfied that a substantial part of the sentence has been served.
Representation:	Ms. O. Ratu and L. Pellie (assisting Counsel, for the Crown Mr. A. Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S. 136 and 137 [cap 26]
Cases cited:	R v Roberts and Roberts [1982] 4 Cr. App. R. (S.) 8,Pana v Regina [2013] SBCA 19, R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 491 of 2016

REGINA

V

JAMES WILFORD

Date of Hearing: 17 July 2020
Date of Sentence: 21 July 2020

Ms. O. Ratu and L. Pellie (assisting counsel, for the Crown
Mr. A. Tinoni for the Defendant

Palmer CJ.

1. You have been charged with the offence of rape, contrary to sections 136 and 137 of the Penal Code [Cap. 26] and entered a not guilty plea when you were arraigned in September 2017. The matter was then listed for trial to take place on or about 13 July 2020 but at the commencement of the trial, you indicated a change of plea. You were re-arraigned and entered a guilty plea.
2. The offence of rape is a very serious offence under our laws and carries a maximum sentence of life imprisonment. This is a reflection of the seriousness Parliament views this offence and the communities concerns and disapproval of this type of offence and the ever pressing need to protect children or girls from the predatory activity of some adults.
3. Those who commit such offences, unless there are exceptional circumstances, if convicted must 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.
4. 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 the case of Pana v. Regina^[3].
5. 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 10 years.
6. I give you credit for a guilty plea and saving the court, prosecution and defence, valuable time in dealing with your case.
7. I note in particular, your guilty plea has not only saved court time and expense, but in the peculiar circumstances of this case, saved the victim the embarrassment of having to give evidence under what would have been extremely difficult and challenging circumstances, bearing in mind that she suffers from a notable physical disability, being dumb from birth. You have saved her and her little sister from that ordeal and the court and counsel from having to grapple with what would have been difficult issues of hearing evidence in a trial.
8. As well, your guilty plea is consistent with remorse. I note too that you have clearly expressed in your mitigation that you are sorry for what you have done, that you accept the errors of your ways, and wish to move on with your life; I take that into account in considering the appropriate sentence to impose.
9. In prison you have immersed yourself in life changing Biblical studies, realized the errors of your ways and determined to set a new course or direction for your life.
10. 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 and while in prison.
11. I note your young age, that you were newly married when you were remanded in custody, have a young son and a home to go back to after serving your term in prison. I accept your prospects for rehabilitation in this case are very good. I note that you plan to complete your home and to venture out into construction business on your release.
12. I also note that no other physical harm or injury was inflicted on the victim other than your actions in forcefully leading her into the bushes and raping her there. I accept no weapon was used and that no other threats were issued, other than what you did to rape her.
13. I also take into account the delay of more than three years in the listing and hearing of your case for trial and take that into account in the sentencing process.
14. On the other hand, I note the following aggravating features that were present in your case. First, the victim suffers from a speech impairment, being dumb from birth, which places her in a more vulnerable and weaker position. Instead of looking after her and taking care of her as a disabled person, (a weak person) that is, someone in need of extra care and protection, you took advantage of her condition, forced her to accompany you and then raped her. You were reckless, inconsiderate and more interested in satisfying yourself when you raped her, even though you are a married man.
15. I bear in mind not only principles of retribution but also deterrence, that those who do these type of things will expect an immediate custodial sentence.
16. Secondly, Crown’s submissions indicate a breach of trust situation, that you are related to the victim as an uncle. This relationship has not been included in the agreed facts and so I assume this refers to a distant uncle relationship. In any event, you were from the same village, related and the victim known to you, which places an onus of care and trust upon you and you failed to take care of her.
17. Thirdly, I note you were under the influence of alcohol when you committed the offence, which would have caused you be unreasonable, demanding, threatening and uncontrollable to the victim and causing fear and trauma to her. It is clear she was traumatised by the experience as noted in the medical report which stated that for about a week she was having trouble sleeping and extra care and attention had to be provided to help her overcome the fear caused by your actions.
18. Finally, you did this in the presence of her little sister who was left to witness the victim being forcefully taken away into the nearby bushes by you to be raped. Despite her pleas to leave her alone you persisted with your intentions to rape her.
19. I note you have been in custody since the 3^rd August 2016 for some 3 years and 11 months. I take that into account in the sentence to be imposed.
20. Balancing the aggravating and mitigating factors together, I am satisfied a sentence of 7 years is appropriate in the circumstances of this case. I give credit for the period already spent in pre-trial custody and direct that it be deducted from your sentence. The sentence should be backdated to run from 3^rd August 2016. I am satisfied too, that the period spent in custody is more than adequate punishment for you in the circumstances of this case and noting as well that a substantial part of the sentence has been served, accordingly will order also that you be released at the rising of the Court.

Orders of the Court:

1. Enter conviction for the offence of rape.
2. Impose sentence of 7 years for rape.
3. The period spent in custody is to be deducted from the sentence and therefore order that it be dated from the period the defendant was remanded in custody, being the 3^rd August 2016.
4. Direct that defendant be released at the rising of the court, being satisfied that a substantial part of the sentence has been served.

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).