R v Sotamana [2021] SBHC 112; HCSI-CRC 132 of 2019 (9 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sotamana
Citation:
Date of decision:	9 July 2021
Parties:	Regina v John Sotamana
Date of hearing:	5 July 2021
Court file number(s):	132 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Enter conviction for the offences of rape on both counts and impose sentences of 11 years on each count. 2. Direct that the sentence of imprisonment of 11 years on count 2 is to be served concurrently, leaving a total sentence of 11 years to be served. 3. The period spent in custody is to be deducted from the sentence.
Representation:	Ms. P Tabepuda for the Crown Mr. L. Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offenses) Act 2016 [cap 26] S 136F (1) (a) and (b),
Cases cited:	Pana v Regina [2013] SBHC 19, R v Billam [1963] 8 CR. App R, R v Ligiau and Dori [1986] SBHC 15

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 132 of 2019

REGINA

V

JOHN SOTAMANA

Date of Hearing: 5 July 2021
Date of Sentence: 9 July 2021

Ms. P Tabepuda for the Crown
Mr L. Waroka for the Defendant

Palmer CJ.

1. The defendant is charged with two counts of rape contrary to section 136F (1) (a) and (b) of the Penal Code [cap. 26], as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (“the Sexual Offences Act, 2016”) and has been convicted after a trial.
2. It is not in dispute that the victim is the daughter of the defendant. She was 17 years old and defendant was 44 years old at the time of offending.
3. According to the facts of the case, the defendant had made special arrangements to have his daughter stay with him and his family to enable her to attend school. She was his child born from a relationship he had with the mother of the victim in his early years while working as an Agriculture Officer at the village where the mother was.
4. The maxim sentence for rape is life imprisonment and is reflective of the view that Parliament takes in relation to this type of offence and the need to protect young girls from this type of unlawful activity by some men.
5. In recent times, there has been an unprecedented increase in the commission of sexual offences against young girls and children and numerous concerns have been expressed about this abnormal increase in this type of offending in our society. The courts have a duty to respond to this widespread public concern in the community by ensuring that fair and just penalties are imposed that will send a clear message of both general and specific deterrence to the community that those who offend will expect an immediate and lengthy custodial sentence if convicted.
6. In Pana v. Regina^[1], the Court of Appeal expressed its alarm at this increase in the level of sexual violence^[2] in Solomon Islands and the need to consider increases in penalties.
7. It considered the Billam Guidelines^[3] and endorsed the three starting points of five, eight and fifteen years for rape. It fixed the starting point of eight years where the victim is a child below the age of consent, and stated as follows at paragraph 16 of Pana:
   • “We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that.”
8. I am satisfied the starting point in this case without any aggravating or mitigating features and a guilty plea entered, should be eight years. Where aggravating features exist, as in this case, there should be a corresponding increase in the sentence of imprisonment to be imposed.
9. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following additional aggravating features in this case, which are not disputed.
10. First, the age of the victim at 17 years, which places her below the age of consent at the time of commission of the offence. Her young age is a serious aggravating feature^[4]. The immediate adverse impact from such offence is that it robs the child of her innocence. No doubt this will result in the starting point to be increased.
11. The second aggravating feature is the disparity in age. The defendant is a mature man and was 44 years at the time of offending. The age difference is 27 years. His actions were both selfish and disgraceful. I add 2 years for both aggravating features bringing the sentence to 10 years.
12. The third aggravating feature is the blatant breach of trust and accountability he held towards the victim as her biological father. He was in a position of power, authority and trust, and had a duty of care towards the victim. The victim in turn is entitled to rely on him for her safety, protection, wellbeing, love and affection as a father. In fact the evidence adduced showed that she was raped at the times when she had gone to her father’s for food as she was hungry. She was at boarding school where her father was a teacher and during her break times on those two occasions she had decided to go to her father’s house for food. The first incident occurred during morning break from school, while the second incident occurred after her prep (study) time in the evening. On both occasions he took advantage of her vulnerability and abused his position of power and authority and raped her. This is an additional aggravating feature at being raped at her father’s house, which should provide her a safe sanctuary, instead of being a crime scene. I add another two years to the sentence bringing the sentence to 12 years.
13. The fourth aggravating feature is the physical, mental and emotional harm caused to the victim. The victim told the court that she was ashamed by what the defendant did to her. Not only did his selfish actions would have corrupted her innocence and dignity as a young person, but would have also caused so much distress and trauma, and any harm caused may take a long time to heal.
14. The social stigma attached to this type of offending will continue for a long time with her as well. Being raped by one’s own father breaches cultural norms and taboos and will bring a lot of shame and embarrassment to the victim and her family.
15. The fifth aggravating feature is the repetition in offending. This was not done once but twice and demonstrates intentional and deliberate conduct. It was not a one off, or spur of the moment thing, or committed as a momentary loss of self-control. It was deliberate, opportunistic and intentional. Even when the victim refused his advances, he persisted in fulfilling his selfish agenda to have sexual intercourse with the victim. I am satisfied this attracts another two years and brings the total sentence to 14 years.
16. On the other hand I note the following mitigating factors, that he is a first offender, has no previous conviction and that this is his first time to appear in court. I give credit for this.
17. I note also there was no injury, threats or harm caused to the victim, other than the offensive and invasive nature of the fact of being raped by her father and the shame, physical, psychological and emotional distress caused.
18. I also take into account the period spent in custody, especially the delay in bringing this case to finality and the defendant having to wait for some time to have his case concluded.
19. Taking all his mitigating factors into account, I deduct three years from the sentence of 14 years, leaving a total sentence of 11 years to be served. I am also satisfied taking into account the totality principle and direct that count 2 should be served concurrent to count 1. He is to serve therefore 11 years.
20. I am satisfied the period spent in custody is to be deducted from the sentence imposed.
21. He has a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Enter conviction for the offences of rape on both counts and impose sentences of 11 years on each count.
2. Direct that the sentence of imprisonment of 11 years on count 2 is to be served concurrently, leaving a total sentence of 11 years to be served.
3. The period spent in custody is to be deducted from the sentence.

The Court.

---

^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] 2^nd Interim Report – Sexual Offences, of the Solomon Islands Law Reform Commission Review of the Penal Code and Criminal Procedure Code, published in June 2013 at page 39, paragraph 2.3.
^[3] R. v. Billam [1963] 8 CR. App. R. (S) 48
^[4] R. v. Ligiau and Dori [1986] SBHC 15