R v Rongo [2021] SBHC 136; HCSI-CRC 287 of 2019 (29 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Rongo
Citation:
Date of decision:	29 October 2021
Parties:	Regina v Christopher Rongo
Date of hearing:	28 October 2021
Court file number(s):	287 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is convicted. 2. The sentence that would otherwise have been imposed has been served. 3. The Defendant is free to go at the rising of the Court.
Representation:	Mr J Auga and N Tonowane for the Crown Mr J R Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Constitution S 10 (1)
Cases cited:	Regina v Liva [2017] SBCA 20, R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6, Pana v Reginam [2013] SBCA 19, Regina v Maewanusi [2010] SBHC 53, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10, Kyio v Reginam [2004] SBHC 90,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 287 of 2019

REGINA

V

CHRISTOPHER RONGO

Date of Hearing: 28 October 2021
Date of Decision: 29 October 2021

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

Sentence

Introduction

1. Christopher Rongo, you were charged with one count of rape and have pleaded guilty on 26 October 2021. The maximum sentence for a charge of rape is life imprisonment.

Facts

2. On 14 February 2012 around midday you returned from a fishing trip. You saw the complainant and followed her. You called out to her and told her that your wife was jealous and suspicious of you towards her. You pulled her close and told her to keep quiet or else you would stab her with the knife you had. It was a small kitchen knife you used for fishing. You held her hands to take her into the bushes but she resisted you. She then followed you, you each undressed and engaged in sexual intercourse. You then left her.
3. At the time you were aged 24 and the complainant was just 17. You have spent 355 days in custody on this matter.

Aggravating features

4. A weapon was used to frighten the complainant.
5. The prosecution submits that there was pre-planning. I do not accept that submission. You had just arrived back from fishing, saw the complainant and decided to take advantage of the situation.
6. The prosecution also submits that the mental and emotional effects will have a long lasting effect on the complainant. There is no evidence before me to show that the complainant what the complainant has suffered other than can be inferred from the fact that she was raped following the threat that you would use a knife to stab her. The Court of Appeal has however confirmed in Regina v Liva [2017] SBCA 20 that the Court can take judicial notice of the long term emotional and mental effects of offending such as yours.
7. The Crown correctly submits that the Court must have regard to general and specific deterrence.

Mitigating features

8. You have pleaded guilty.
9. You were arrested on 23 February 2012. There has been a delay of 9 years and 8 months from your arrest until the conclusion of this matter. The offending went back three years before that.
10. You have no other criminal record either before or after this offence.
11. 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. An information was not filed in the High Court until 5 May 2020. Frequently when your case was called in the High Court a summons had not been served on you.
12. There has been no evidence that any of the delays in the Magistrates Court or the High Court have been of your making.

Starting point

13. 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.”
14. 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 principal feature of aggravation is that you used a knife as a weapon to frighten the complainant. I accept that the offending was not pre-planned.

15. In fixing the starting point I keep in mind the need for deterrence, both for the general public and for you should you again be minded to ignore the rights of another and for your own gratification sexual abuse a young woman as you did.

Guilty plea

16. I accept that your guilty plea was entered at an early stage. There would have been no opportunity to plead before September this year. The High Court was sitting on circuit in the years since your committal but there was no information to which you could plead. In 2020 there were no High Court circuits partly because of the COVID-19 crisis. The first High Court circuit this year was in September.
17. An early guilty plea can be a reflection of remorse.
18. 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.”

Delay

19. There has been a delay of 9 years and 8 months since your arrest. 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.
20. 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.
21. 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.

22. 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.

23. In Kyio 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 two years as a result.
24. 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.

Discussion

25. Following the guidance given by the Court of Appeal the starting point of 5 years’ imprisonment must be increased to reflect that you used a knife to frighten the complainant. I take a starting point of 8 years’ imprisonment.
26. For your guilty plea I allow a reduction of 2 and a half years.
27. For the delay that you have had waiting for the Court to deal with your case, I allow a reduction of 4 years. The failure of the Justice sector to deal with your case is a clear breach of section 10(1) of the Constitution.
28. For the remaining mitigating features I allow a further 6 months’ reduction. That leaves a final sentence of 18 months’ imprisonment. You have been on remand in custody for 355 days which is the equivalent of an 18 month sentence.
29. I therefore impose no further sentence. You are free to go at the rising of the Court.

Orders of the Court

1. The Defendant is convicted.
2. The sentence that would otherwise have been imposed has been served.
3. The Defendant is free to go at the rising of the Court.

By the Court
Justice Howard Lawry PJ