R v Haga [2021] SBHC 132; HCSI-CRC 374 of 2021 (28 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Haga
Citation:
Date of decision:	28 October 2021
Parties:	Regina v Reubenson
Date of hearing:	27 October 2021
Court file number(s):	374 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is sentenced to 4 years’ imprisonment. 2. In calculating the time to be served the authorities are to take into account the time he has already spent in custody.
Representation:	Mr J Auga and Mr Tonowane for the Crown Mr J Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, R v Firinao [2019] SBHC 104, Pana v Reginam [2013] SBCA 19, Regina v Maewanusi [2010] SBHC 53, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10, Kyoi v Reginam [2004] SBHC 90,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 374 of 2021

REGINA

V

REUBENSON HAGA

Date of Hearing: 27 October 2021
Date of Decision: 28 October 2021

Mr J Auga and Mr N Tonowane for the Crown
Mr J R Brook for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Reubenson Haga, you were charged with one count of rape and proceeded to trial. At the end of the cross examination of the complainant you asked to be re-arraigned and pleaded guilty to the charge. The maximum sentence for a charge of rape is life imprisonment.

Facts

2. On 23 February 2013 you were drinking alcohol with your cousin brother and another person. Your cousin brother is the husband of the complainant. The complainant was left at her house. You returned to her house around 7.00pm and lured her from the house by telling her that her husband was having sex with another woman. You directed her where to go. On the way she sought assistance from a 12 year old boy. The three of you walked for about an hour. You then said you needed to drink some water and returned with a nylon rope. You attacked the complainant. You tied the rope around the complainant’s neck. The boy with you fled and the complainant called to him to get help. You struck the complainant in the eye and the head which caused significant swelling to both eyes. The damage to her face around her eyes is apparent from the photographs. You bit her at least three times on the forearm biting into her flesh. She was in a great deal of pain and still has the disfiguring scars today. The photographs of the bite marks indicate just how severe the biting was. You bit her hand and her foot. The biting injuries caused bleeding. You said you were going to kill her. You said you would drink her blood and that you would do this as part of a cult. You then began removing her clothing. You pulled her trousers down to her knees. You had sexual intercourse with her. You then told her that you were satisfied and that you should go home to satisfy your husband.
3. Others came looking for the complainant. When you heard them you fled. You took the shirt the complainant was wearing. Shortly afterwards the complainant was taken to hospital.

Aggravating features

4. Your counsel and the prosecution have agreed on a number of aggravating factors.
5. The complainant regards you as her brother-in-law and you are very close to her husband. Counsel agree that your culture requires you to protect your family and the family of your cousin brother. You took advantage of the relationship to lure the complainant to where you viciously assaulted and raped her. To that extent there was a breach of trust.
6. The offending took place at night at a secluded bush area where there was no help close at hand.
7. The injuries you inflicted were extreme, causing a great deal of pain and the violence you used was significantly more than what was required to commit the offence. The violence was carried out with threats to kill. The prosecution submits that it is apparent she continues to suffer from the physical and emotional pain and understandably the attack has had a lasting effect on her. The complainant and her husband have had to move from the village that was their home.
8. The prosecution asks the Court to treat your intoxication as an aggravating feature.
9. The prosecution submits that the Court can infer that there was a degree of pre-planning.
10. The prosecution has also raised the need for both general and specific deterrence.

Mitigating features

11. You have pleaded guilty.
12. There has been a delay of 8 years and 9 months from your arrest until the conclusion of this matter. You were remanded in custody for 6 months of that time.
13. You were aged 18 at the time of your offending.
14. You have given compensation to the complainant of 1 Makira Red Shell Money (valued at $1,000.00) and $700.00 in cash.
15. You have no previous convictions and your counsel advises that you have not been in trouble with the Police since your arrest in 2013.
16. Your counsel has advised the Court that you were committed to the High Court in July 2017. At the committal you pleaded guilty to the offence charged. There was an inordinate delay from committal until the prosecution filed an information in the High Court. The information was not filed until 8 April 2021. The Crown has properly accepted responsibility for this delay. The Police prosecutor who appeared at the committal hearing did so on instructions of the Crown.

Starting point

17. Both counsel have referred to R v Ligiau and Dori [1986] SBHC 15 as the appropriate tariff case. 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 case. 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.”

Both counsel agree that you have gained access to the complainant’s home because of your relationship with her husband and that as your cousin/brother was her husband and you were in effect the brother-in-law of the complainant you were in a position of responsibility towards her in the sense that you had a duty to protect her. You lied to her to lure her to the place where you tied her neck, assaulted her and viciously bit her.

18. In R v Firinao [2019] SBHC 104 the Chief Justice dealt with a case where the rape was by the cousin/brother of that complainant. He said:
    • “First, is the breach of trust of the defendant in relation to the victim as a cousin brother. Through this relationship you were able to have access to the victim late at night in the kitchen area.”

I take the same view and regard your conduct as a breach of trust which allowed you access to the complainant at her home when she was alone.

19. Ligiau and Dori has been approved in Soni v Reginam [2013] SBCA 6 where the Court of Appeal after confirming Ligiau and Dori to be the appropriate tariff case added:
    • “The crime should in any event be treated as aggravated by any of the following factors:
    • (1) violence is used over and above the force necessary to commit the rape;
    • (2) A weapon is used to frighten or wound the victim;
    • (3) the rape is repeated;
    • (4) the rape has been carefully planned;
    • (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;
    • (6) the victim is subjected to further sexual indignities or perversions;
    • (7) the victim is either very old or very young;
    • (8) the effect upon the victim, whether physical or mental, is of special seriousness.”

The first of these aggravating features is clearly present in your offending. You also used the rope as a weapon to frighten the complainant to cause her to comply with your demands.

20. The violence included drinking blood from the injuries your bites caused to her forearm. The aggravating features require that the starting point must be significantly higher than the 5 years referred to in Ligiau and Dori. For the extreme violence I take a starting point of eight years. For the other aggravating features, including using your relationship to lure her from her house at night to the remote place where you assaulted and raped her, I add a further year. Although there was evidence to support the submission of pre-planning in that you knew the complainant was alone at the house, you used deception to get her to go where you directed, you took her to a secluded place and retrieved the nylon rope which you used as a weapon, tying her neck, I am however, of the view that the degree of pre-planning is sufficiently taken into account by selecting the increased starting point.
21. The Crown has asked me to take into account that there were two victims, the complainant and the 12 year old you are alleged to have assaulted. The prosecution has laid no charge in respect of that person. I therefore put that submission to one side.
22. The starting point then after allowing for all aggravating factors is 9 years. I now turn to mitigating features.

Guilty plea

23. Although you pleaded guilty in the Magistrates’ Court, when you were arraigned in the High Court you pleaded not guilty. The case proceeded to trial. The complainant gave evidence and was cross-examined. Included in that cross examination was the allegation that she repeatedly demanded sex from you. The Courts generally allow for a reduction in the sentence to be imposed when a plea of guilty is entered because it usually saves the complainant and the witnesses the stress of giving evidence and reliving the ordeal. Secondly, it saves the resources of the State in having to hear the trial. Your plea did neither and deprived others the opportunity to have their trials heard. The most that can be said for such a late plea is that is it an acknowledgement to the complainant that what she has told the Court was true.
24. The amount of reduction that can be given for a guilty plea reduces as time goes on. An early guilty plea can be a reflection of remorse. Counsel has said that the plea you entered in the Magistrates’ Court should be considered because he submitted that the delay on the part of the prosecution in filing an information has led to the not guilty plea being entered in the High Court, which led to the trial. There will be a reduction in the sentence on account of the delay and that is dealt with below. That reduction adequately deals with the submission of counsel.
25. In Pana v Reginam [2013] SBCA 19 the Court of Appeal said at paragraph [22]:
    • “The most important mitigating effect of a plea of guilty in a sexual offence and in any case involving a young child is that it saves the complainant from the distress of having to relive the trauma from the witness box. It is also frequently accepted as a sign of remorse and realisation of the wrong the accused has done. Finally and too a much lesser extent (see Millberry) is the pragmatic fact that it saves the court time and expense.”

Then at paragraph [26] the Court said:

• “The judge was correct to make some reduction for the plea of guilty. In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty. In the present case, the plea of guilty was only entered after the trial commenced. It did, as we have said, spare the complainant from the ordeal of giving evidence and therefore deserves some recognition. However, it only came after the trial had started and the witnesses, including the complainant, had been required to attend. We have set out above the judge’s description of the child’s distress at being brought to court and, whilst it maybe correct that it was the sight of her distress which engendered the change of heart in the appellant, it was only at that stage that he showed any indication of wishing to spare the young girl. A deduction of two and a half years for that was over generous and our view is that it justified no more than six months.”

26. In the present case the plea was later than in Pana. It did not save the complainant from giving evidence, reliving the events and being cross examined. It did not save the State the expense of a trial. It did however bring the trial to an early conclusion and was a recognition that the complainant had indeed been both physically and sexually abused by you. The most generous discount that can be given for your very late guilty plea, in light of Pana, is 6 months.

Delay

27. There has been a delay of 8 years and 9 months since your offending. You were initially remanded in custody. There is no evidence before me that you were responsible for any of the delays in the Magistrates’ Court. It was more than 4 years from your arrest until your committal to the High Court. I understand that there often was no Magistrate to deal with cases and when defendants were on bail there was a need to summon them when no date had been set for them to return to Court. However, since the committal there has been a further 3 years and 8 months before the Crown elected to file an information charging you in the High Court. The probability of the charge was hanging over your head for an unacceptably long time. However, you were not detained in custody for this period after being granted bail in 2013.
28. Your counsel has referred to Regina v Maewanusi [2010] SBHC 53 that had some similar elements. The victim was tricked to go where the offender raped her. He was armed with a knife. He pleaded guilty and there was a delay of 5 years in progressing the matter. The Court did not set out the amount of reduction for the guilty plea nor the delay however after making allowances for those factors imposed a final sentence of 4 and a half years’ imprisonment. In Firinao referred to above the Court allowed a discount of 5 years for the delay of 10 years in bringing the case to a conclusion. The facts of Firinao particularly the standing in which the offender was held in the community after such a delay had a significant impact on sentencing and as a result is not of as much assistance as some other cases.
29. In Regina v Oge [2004] SBHC 72 the Court said:
    • “First is that the inordinate delay in prosecuting your case for 5 years is contrary to section 10(l) of the Constitution which demands that every person who is charged with a criminal offence must be fairly tried by a court of law within a reasonable time. The delay of 5 years by the Prosecution of your case is a point in your favour when considering the length of any custodial sentence I should impose on you.”

In Oge it is not clear how much reduction was given but it appears to be around 2 years’ imprisonment on a charge of rape. The Court recognised the difficulty in balancing the need to impose a sentence for criminal offending and the need to recognise when a young man has got on with his life and made something of it.

30. In Regina v Gwali [1999] SBHC 10 Kabui J said:
    • “In my view, this case calls for custodial sentence. However, long delay by the Prosecution to prosecute an offender in a court of law is a matter capable of reducing the length of a custodial sentence.”

Later in the judgment he made it clear that the power to grant a reduction on the basis of delay, is discretionary. He said:

• “However, the point here as I have said is that long delay in prosecuting criminal cases may have the effect of reducing a custodial sentence imposed by the Court.”

It is unclear what discount he provided but it appeared to be limited.

31. In Kyoi v Reginam [2004] SBHC 90 the Chief Justice was dealing with a lengthy delay of 9 years after the Defendant was charged. His Lordship reviewed the authorities and reduced a sentence from 5 years to 2 years as a result.
32. Having carefully considered all the authorities concerned with delay I propose allowing a reduction of 3 years from the term of imprisonment to be imposed.

Youth, compensation and previous good conduct

33. In order to recognise that you were only 18 at the time you committed the offence and for your lack of other criminal offending I propose further reducing your sentence. I note that compensation has been paid but you still proceeded to trial and put the blame on the complainant up to the point of your guilty plea. However, compensation has been paid so I make allowance for that. For your youth at the time, your otherwise clean record and your payment of compensation I allow a further 18 months’ reduction to your sentence.
34. I note that you have already spent 6 months on remand and you have been in custody for a further two days from the time you changed your plea to guilty. I direct the authorities to take that time into account in calculating your release date.

Order

1. The Defendant is sentenced to 4 years’ imprisonment.
2. In calculating the time to be served the authorities are to take into account the time he has already spent in custody.

By the Court
Justice Howard Lawry PJ
Puisne Judge