R v Kaleara [2021] SBHC 5; HCSI-CRC 7 of 2021 (9 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kaleara
Citation:
Date of decision:	9 February 2021
Parties:	Regina v Gevison Kaleara
Date of hearing:	4 February 2021
Court file number(s):	7 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is convicted on one count of rape contrary to section 136 F (1) (a) (b) of the Penal Code (Amendment) (Sexual offences) Act 2016. 2. The defendant is hereby sentence to 4 years imprisonment. 3. Time spent in pre- trial custody is to be deducted from the total sentence.
Representation:	Mr. Andrew Meioko for the Prosecution Mr. Frank Brennan Kama for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 section 136 F (1) (a) and (b)
Cases cited:	R v Billam [1986] I WLR 349 , R v Ligiau and Dori [1985-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 7 of 2021

REGINA

V

GEVISON KALEARA

Date of Hearing: 4 February 2021
Date of Decision: 9 February 2021

Mr. Andrew Meioko for the Prosecution
Mr. Frank Brennan Kama for the Accused

SENTENCE

Bird PJ:

1. By information filed on the 29^th January 2021, the defendant was indicted with one count of rape contrary to section 136 F (1) (a) and (b) of the Penal Code (Amendment) (Sexual offences) Act 2016. Upon being arraigned on the 3^rd of the February 2021, the defendant had entered a guilty plea.
2. I must remind you that the offence of rape is very serious and carries a maximum imprisonment term of life. That imprisonment term would show offenders and would-be offenders that the courts view such offending as very serious.
3. The facts of your case revealed that you and the complainant occupy the same house at KHY area in Gizo.
4. On the date of offending, the complainant had woken up early to cook cake for market. The complainant’s husband had then left the house to sell his market at SSEC main road, not far from the house.
5. The complainant had her bath and intended to take a nap before going to the market. She however fell fast asleep. At the material time, the complainant was only wearing a towel with no pant or trouser and was facing up.
6. Whilst she was asleep, you crept into the room and touched the complainant’s body, chest breasts, vagina and you were also kissing her neck. The complainant thought it was her husband.
7. You then pushed your penis into the complainant’s vagina and moved your buttock up and down two times. The complainant still thinking that it was her husband, said “bele blo me soa”, and tried to push you out. In an attempt to push you out, she held your face and felt a rat tail on the left side of your face. She then realised that it was not her husband.
8. The complainant then looked at you and recognised you as the defendant as you have been leaving together in one house. You did not run away and the complainant bit your jaw and kicked your chest. You felt down and the complainant shouted ‘Kali creep’.
9. Upon hearing the complainant shouting, her husband ran into the house and pulled you out and a fight between you and the husband ensued. The complainant continued shouting and her brothers came and pulled you out. You then escaped and ran away. Some boys living in the area ran after you and brought you back to the house. You were reported to the police and was arrested on the same day.
10. In your case, the prosecution had submitted that there was some element of planning in your offending. I have noted the agreed facts in your case and I am not convinced that there is any element of planning. I could say that the offending is a spur of the moment incident.
11. The prosecution had also submitted that your action had caused visible emotional and psychological stress on the complainant. She was hysterical and was shouting on that occasion. What you did could also have caused strain in the complainant’s marital life.
12. Thirdly is that your conduct showed total disregard to the complainant’s dignity and self-respect. You have been living in the same house as the complainant. You should have treated her as a mother or a sister and could have afforded her that respect. You have allowed your own selfish, sexual emotions to overtake you. You committed the offending to satisfy your own sexual gratitude to the complainant’s detriment.
13. On your behalf, it was submitted that you are 26 years old. You are a grade six leaver. You are a farmer and support your parents back in the village at Ranongga.
14. You have pleaded guilty to this offending at first opportunity and I give you credit for that. Your early guilty plea had saved time and cost from conducting a trial into this case. Your early guilty plea had not only shown remorse but that you have come to terms of the offending and have taken responsibility of your actions.
15. You have no previous convictions so you are a first offender. I must urge you to now live a dignified life that shows respect to all people alike. You must learn to respect women and girls and should never abuse them because they have the status in society as you do.
16. In your case, I have also noted the following factors in your favour. I am of the view that the offending was not planned. It was an act in the spur of the moment. Notwithstanding, you could have exercised restraint but you chose not to.
17. No weapon was used in the commission of the offence. There was no threat or force used but that you used that opportunity to satisfy your own sexual lust. You did not lure the complainant and there was no subsequent pregnancy from your offending. There was also no repetition of the offending.
18. You are a young man of 26 years and I sincerely hope that you have learnt from this mistake and that you will not re-offend in future. You have a chance to rehabilitate yourself and to become a law abiding citizen from this day on.
19. I have read the case authorities cited by both counsel for the prosecution and the defence. The principles and sentencing regimes of previous cases are those that are stated in the case of R v Billam [1986] 1 WLR, 349 and adopted by ward CJ in R v Ligiau & Dori [1985 – 1986] SILR 214. I shall also adopt those sentencing guidelines.
20. In the above cases, the starting point in a contested rape case committed by an adult without any aggravating and mitigating features is a figure of 5 years.
21. In your case, there are a number of aggravating features and I am of the view that the starting point for you in light of the Ligiau case is one of 6 years.
22. After having taken into account the mitigating features in your case as discussed above. I reduce that sentence by 2 years.

Orders of the court.

1. The defendant is convicted on one count of rape contrary to section 136 F (1) (a) (b) of the Penal Code (Amendment) (Sexual offences) Act 2016.
2. The defendant is hereby sentence to 4 years imprisonment.
3. Time spent in pre- trial custody is to be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge