R v Sasa [2021] SBHC 108; HCSI-CRC 685 of 2020 (26 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sasa
Citation:
Date of decision:	26 August 2021
Parties:	Regina v Clement Lotanga Sasa
Date of hearing:	25 August 2021
Court file number(s):	685 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry PJ
On appeal from:
Order:	1. On the charge of rape you are convicted and sentenced to a term of 6 years and 6 months’ imprisonment commencing today. 2. The name of the victim is suppressed and may not be published
Representation:	Mr. A Meioko for the Crown Mr A Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016 S 136 F (1) (a)and (b)
Cases cited:	Mulele v Director of Public Prosecutions and Poini v Director of Public Prosecutions [1985 – 1986] SILR 145, Regina v Maneapia [2020] SBHC 36, R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6, Alu v Reginam [2016] SBCA 8, Pana v Regina [2013] SBCA 19, Qoloni v Regina [2005] SBHC 73, Gerea v Regina [2005] SBHC 34, Talifai v Regina[2011] SBHC 16,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 685 of 2020

REGINA

V

CLEMENT LOTANGA SASA

Date of Hearing: 25 August 2021
Date of Decision: 26 August 2021

Mr A Meioko for the Crown
Mr A Bosa for the Defendant

Lawry PJ

SENTENCE

Introduction

1. Clement Lotanga Sasa you have pleaded guilty to one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by section 5 of the Penal Code (Amendment) (Sexual Offences) Act 2016. You were arrested on 20 January 2020. You were remanded in custody until 22 April 2020 when you were granted bail and committed to the High Court on the charge to which you have pleaded. The Information was not filed until 27 January 2021 even though the prosecutor at the committal was from the Office of the Director of Public Prosecutions. There has been no explanation for the failure to file an Information within a reasonable period of time.
2. On 2 February 2021 you pleaded not guilty to the charge, as is your right. Your case was listed to proceed as a reserve trial for the week commencing 23 August 2021. The trial was not able to start as the principal trial proceeded. On Thursday 26 August 2021 you pleaded guilty. You now appear for sentence.

Facts

3. The Crown and the Defence filed a detailed statement of agreed facts for the purpose of sentencing. You are aged 44 and the Complainant is aged 23. She is your niece. The agreed facts show that you were in a relationship with your niece and when she was in financial need you would assist her. Your counsel says that in fact you we engaged in a sexual relationship.
4. On 4 December 2019 at around 3.30am an uncle of the complainant went to the house of the complainant and woke her and told her to go to see you. She refused. A short while later he returned to the Complainant after you sent threats to her. They can only be interpreted as a threat to kill. The words used meant “how would you like to die together?” and “Do you two want to live till Christmas?” The victim approached your house and you shouted out words meaning “How do you want to die. How would you like your child to have no mother?” The victim feared for her safety and so she followed you to your house. At the house you both went to your room. She was frightened and sat on the bed. You pushed her onto the bed. She stood up but again you pushed her to the bed, with force, and started to kiss her face. You tried to pull her trousers off but she held onto them tightly. You forced your way onto her and separated her legs. She tried to push you away but you were too strong. You then had sexual intercourse with her. After the sexual intercourse you told her to leave your house which she did.

Aggravating factors

5. The Crown has referred to the Court of Appeal decision of Mulele v Director of Public Prosecutions and Poini v Director of Public Prosecutions [1985 – 1986] SILR 145 where the Court of Appeal identified aggravating features that should be considered in cases such and yours. These features include disparity in age, abuse of a position of trust, subsequent pregnancy and the character of the girl herself.
6. The Crown submits that the age disparity is an aggravating feature. You are 21 years older than her. Secondly the Crown says as her uncle you were in a position of trust. The third feature identified is that the offending occurred at night.
7. I agree with the Crown regarding these features. I also find that your conduct displays an attitude of power and control over someone who is vulnerable, being a mother frightened for herself and her child. I find the coercion displayed in bringing her to your house by making appalling threats consistent with your exercising power over your niece. I find these particularly aggravating.
8. The Crown has drawn the attention of the Court to the words of the Chief Justice in Regina v Maneapia [2020] SBHC 36 when he said: “The offence of rape has always been regarded as a serious crime by the law for it is an offence of violence against the weaker sex, and entails taking advantage of that imbalance by the stronger male accused over the weaker victim and violating her person...It is an offence of violence based on a selfish disregard for the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long-lasting harm to the victim.”
9. I adopt those sentiments.

Mitigating features

10. Your counsel submits that you have led a responsible life and are of good character. I record that you have no prior convictions but on the submissions received you had engaged in your incomprehensible control of the victim and in the submission of your counsel had engaged in a sexual relationship with her.
11. Your counsel says you are remorseful, that you are sorry for what you have done. He points to your guilty plea although I note you had pleaded not guilty in February and it was not until you were about to commence the trial that you changed your plea. Your counsel submits that you have pleaded guilty at the very earliest opportunity. That is clearly not so. Having said that, the Complainant has been saved the trauma of reliving what you did to her and has saved the taxpayer the expense of a trial. Limited credit will be given for your guilty plea as your niece has had to prepare to give evidence and it was not until yesterday that you changed your plea.
12. Your counsel said you have co-operated with the Police. It seems that he means you complied with bail which is a different thing altogether.
13. He says you have excellent prospects for rehabilitation. I am not sure what this is based on as your conduct demonstrated an appalling attitude towards at least one woman.
14. Your counsel said that you look after your aging mother and siblings, that you are a farmer and a fisherman, selling fish to support your family.
15. Your counsel says there was a delay in prosecuting this case. There were two periods of delay. The first was from the failure of the prosecution to file an information from the committal in the Magistrates’ Court on 22 April 2020 until 26 January 2021. I realise that in Honiara the Public Service had limited staff in April 2020 because of precautionary steps being taken by the Government to protect the country from the COVID -19 pandemic but the Public Service was back to normal by the start of May 2020. The second part of the delay was only from the start of this year and was of your own doing. You chose to plead not guilty, as you are entitled to do. Had you pleaded guilty then, there would not have been any further delay. In any event I do not regard a delay of 7 months from the filing of the information until you could have a trial as excessive.
16. For the delay caused by the prosecution I will allow a greater discount than you would ordinarily be entitled to for a plea entered at the last minute.
17. Your counsel raises the relationship with your niece which he said was a sexual relationship from 2018, as a mitigating feature. I understand him to say that in return for you assisting your niece, you could get sexual favours from her. There was nothing put forward to support this assertion but if it is so then it shows you to be a most manipulative man. Your explanation for the offending was that she wanted money but you did not have any. She would not have sex with you so using threats to kill, you forced her and overcame her attempts to protect herself from you.
18. Finally, your counsel has submitted that there was no threat, violence and weapons used in the commission of the offence at the time of the incident. When I asked your counsel about the threats to overcome her refusal, he limited his submission to the time she was actually in the house, but there you used force to overcome her.

Starting point

19. Both counsel correctly refer to the case of R v Ligiau and Dori [1986] SBHC 15 as the appropriate tariff case. The Court of Appeal affirmed the decision of Ligiau and Dori in Soni v Reginam [2013] SBCA 6. In Ligiau and Dori the Court said: “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested rape. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years...”
20. The Court said that the crime should be treated as aggravated by any of the factors listed in that case, which included features present in this case. The threat to kill was violence over and above the force necessary to commit the offence. The sexual assault was ignoring her as a person for your own sexual gratification. It forced her to leave her child at home at 3.30 in the morning. You were her uncle and she should have been able to seek your help in keeping her safe but you preyed on her in a violent sexual way.
21. There are some parallels between your case and the case of Alu v Reginam [2016] SBCA 8. There an offender was transporting passengers in a boat in Western Province. After the other passengers alighted and while at sea, the offender who was aged 36 or 37 raped a young woman aged 19. The victim did all she could to avoid being sexually attacked. She struggled and even jumped into the sea to avoid the offender, only getting back in the boat when he threated to drive off and leave her. The boat was then driven to Gizo. The offender left the girl with the boat while he went to look for a room. He was unsuccessful. He returned to the boat then took her elsewhere where he showered then raped her in a market stall.
22. The Court of Appeal in Alu followed the principles set out in by the Court of Appeal in Pana v Regina [2013] SBCA 19. The Court of Appeal imposed 9 years’ imprisonment for the first count and 11 years’ imprisonment on the second count directing that both incidents arose from a single transaction.
23. Counsel has referred to a number of High Court decisions but on enquiry there are good reasons to distinguish them. For a contested rape case without aggravating factors Ligiau and Dori require me to take a starting point of five years before considering aggravating features. In this case the aggravating features have been discussed and must take the starting point to no less than 9 years.

Application of the sentencing principles

24. From the starting I consider the mitigating features. The first and most significant is the plea of guilty. The Court of Appeal in Soni, reviewed the authorities regarding discounts available to reflect the significance of a guilty. At paragraph [16] the Court said:
    • “16 All the cases referred to above make particular mention that the effect a guilty plea should have on the sentencing decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting points set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also demonstrates that the offender appreciates how wrong his conduct was and regrets it.
    • It is principally for these two reasons that the sentencing judge should consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005), Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea, whereas the English authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilty plea to the victim. A maximum discount of one third may well be considered appropriate in some circumstances.”
25. In order to recognise the importance of encouraging those who sexually assault others, to take responsibility for their criminal conduct I intend to give a significant discount to you. In Pana the Court of Appeal suggested in that case, a plea on the second day of trial merited only 6 months’ reduction. That was from a higher starting point than in your case. I propose allowing a two-year reduction to reflect your eventual acceptance of guilt and increasing the period because from 22 April 2020 you were left without the charge being filed in the High Court until 26 January 2021. That delay is inexcusable. However, you were not held in custody at that time.
26. I then propose to allow a further 6 months’ reduction to take into account the other mitigating factors including your lack of previous convictions and the time you have already spent in custody which I note is two months.
27. That leaves a final sentence of 6 years and 6 months’ imprisonment which will begin today.

Orders of the Court

1. On the charge of rape you are convicted and sentenced to a term of 6 years and 6 months’ imprisonment commencing today.
2. The name of the victim is suppressed and may not be published.

By the Court
Justice Howard Lawry
Puisne Judge