R v Penibanga [2021] SBHC 183; HCSI-CRC 122 of 2017 (22 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Penibanga
Citation:
Date of decision:	22 February 2021
Parties:	Regina v Selwyn Penibanga
Date of hearing:	19 February 2021
Court file number(s):	122 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Enter conviction for the offence of rape (count 1), and escaping from lawful custody (count 2). 2.Impose sentence of imprisonment as follows: (i) Count 1: 4 years; and (ii) Count 2: 3 months. 3. Direct that count 2 be made consecutive to count 1; the total sentence of imprisonment therefore is 4 years 3 months. 4. The period spent in pre-trial custody is to be deducted from the sentence imposed. 5. Direct that the prisoner be released at the rising of the court, noting that a substantial part of the sentence has been served in pre-trial custody.
Representation:	Mrs. D. Belapitu Oligari for the Crown Mr. A. Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136 (F) (1) (a) and (b), Police Act 2013 S 199
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, R v Roberts and Roberts [1982] 4, Pana v Regina [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 122 of 2017

REGINA

V

SELWYN PENIBANGA

Date of Hearing: 19 February 2021
Date of Sentence: 22 February 2021

Mrs. Belapitu Oligari for the Crown
Mr. A. Tinoni for the Defendant

Palmer CJ.

1. You have been charged with two offences, one count of rape contrary to section 136(F)(1)(a) and (b) of the Penal Code (Amendment)(Sexual Offences) Act 2016 and one count for escaping from lawful custody contrary to section 199 of the Police Act 2013. You pleaded not guilty to both offences and a trial has been held following which you were convicted of both.

The law on rape.

2. The offence of rape is a serious offence under our laws with a maximum sentence of life imprisonment. This is a reflection of the seriousness that Parliament views such offence and the community’s disapproval of such type of offence and the ever pressing need to protect children and young girls from the predatory activity of some adults.
3. Those who commit such offences, on conviction will expect an immediate custodial sentence^[1] to be imposed, unless there are exceptional circumstances justifying otherwise. The length of a sentence will depend on the circumstances of each case and the presence of aggravating or mitigating factors.
4. The starting point for rape by an adult in a contested case without any aggravating or mitigating features has been settled in the case of R. v. Ligiau and Dori^[2], to be five years. Where there is a feature of aggravation, the starting point has been elevated from 8 to 10 years by the Court of Appeal in Pana v. Regina^[3].
5. I am satisfied, the starting point in the circumstances of this case, should be five years.
6. No credit for a guilty plea is given, a trial having taken place and the victim put through the trauma of having to relive the adverse and negative aspects of the rape.
7. Credit is given as a first offender with no previous convictions, and that since your unlawful conduct with escaping from lawful custody, I note you cooperated well with the police.
8. I take into account the circumstances of the offence that apart from the violence of the rape itself, in having to force yourself onto the victim and overcome her resistance to have unlawful sexual intercourse with her, no physical harm or injury was inflicted on the victim. I note no weapon, threat or other force was used in the commission of the offence.
9. I note the delay of more than four years, in having this matter brought to trial and concluded; three years and one month were spent in remand in custody. I give credit for the delay and accept submissions of Mr. Tinoni that the delay is inordinate and excessive and due credit should be given for that in the sentencing process.
10. On the other hand, I note the following aggravating features present in your case. First, is the obvious breach of trust between you and the victim. As a maternal uncle this placed you in a position of authority and responsibility over the victim. Her mother, your sister, had entrusted her daughter into your care, trusting that blood ties, relationship and customary obligations would be a sufficient strong bond to enable you to take good care of the victim as a niece (daughter in custom), for the period that she would remain with you and to deter you from any lustful intentions. That proved to be otherwise, you breached that relationship of trust and let everyone down, bringing shame and disrepute to you and your families, including that of the victim. The emotional wounds, hurts and scars on such a young victim of tender age at 16 years will take a long time to heal.
11. Secondly, the age disparity between you and victim is exacerbated by the fact that you were also married with children. That places an onus of responsibility on you to take care of her but you failed in that responsibility.
12. Thirdly, you were a serving police officer at the time of the commission of the offence, you were well aware of your responsibilities in law and brought shame and disrepute to yourself as a member of the Royal Solomon Islands Police Force.
13. Fourthly, the offence was committed in the sanctity of your house when your family were away and only you and the victim were at the house at that time. You took advantage of your position of power and authority and abused that to fulfill your wrong desires and intentions.
14. On the other hand, these have to be balanced by other mitigating factors highlighted by your lawyer, Mr. Tinoni in his submissions. These included being remorseful and sorry for your actions and expressing a sincere desire and intention to support your family and the community on your release.
15. I note the time spent in custody has not been wasted, you had used that to engage yourself in Bible Studies and a recommitment to live a life consistent with a renewed faith in God experienced while in prison.
16. I note as well that your prospects of rehabilitation are good and that it was a one off event which you got involved into when you allowed your feelings and desires to get the better of you.

Escaping from lawful custody.

17. I note the circumstances of offending and take that into account in this offence. While there was some element of deliberateness in the escape, I also note that you voluntarily returned to the police station the next day. Throughout you maintained contact and at no time was there an intention to abscond on a permanent basis. However, the offence had been committed once you left the premises of the Central Police Station.
18. Taking everything into account, I add 1 year for the aggravating features, which brings the total sentence to six years. I take into account the mitigating factors, including the delay factor and deduct two years, which brings your sentence to one of four years. I add 3 months for the offence of escaping from lawful custody and order that it be served consecutively. The total sentence therefore is 4 years and three months.
19. I am satisfied the following sentence accordingly should be imposed:
    • (i) Count 1: 4 years imprisonment; and
    • (ii) Count 2: 3 months imprisonment.
20. I am satisfied count 2 should be made consecutive to count 1. The total sentence to be served therefore is 4 years and 3 months.
21. I am also satisfied the period spent in pre-trial custody, about 3 years and one month, should be deducted from the sentence imposed. Noting that a substantial part of the sentence would have been served while in pre-trial custody, I am satisfied you should be released at the rising of the court.

Orders of the Court:

1. Enter conviction for the offence of rape (count 1), and escaping from lawful custody (count 2).
2. Impose sentence of imprisonment as follows:
   • (i) Count 1: 4 years; and
   • (ii) Count 2: 3 months.
3. Direct that count 2 be made consecutive to count 1; the total sentence of imprisonment therefore is 4 years 3 months.
4. The period spent in pre-trial custody is to be deducted from the sentence imposed.
5. Direct that the prisoner be released at the rising of the court, noting that a substantial part of the sentence has been served in pre-trial custody.

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).