R v Tovoniovo [2022] SBHC 15; HCSI-CRC 169 of 2019 (7 April 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tovoniovo
Citation:
Date of decision:	7 April 2022
Parties:	Regina v Smith Tovoniovo
Date of hearing:	1 April 2022
Court file number(s):	169 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is hereby sentenced to 4 years imprisonment. 2. I direct that the time spent in pre-trial custody be deducted from the total sentence. 3. The defendant is to be released at the rising of the court. 4. Right of appeal.
Representation:	Miss. Patricia Tabepuda fo the Crown Mr. Allan Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136F (1) (a) and (b)
Cases cited:	R v Ligiau and Dori [1985-1986] SILR 214, R v Phoboro [2013] SBHC 8, R v Billam [1986] 1 WLR 349

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 169 of 2019

REGINA

V

SMITH TOVONIOVO

Date of Hearing: 1 April 2022
Date of Decision: 7 April 2022

Miss. Patricia Tabepuda for the Crown
Mr. Allan Tinoni

SENTENCE

Bird PJ:

1. You have been convicted after trial of the offence of rape contrary to section 136F (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. You now appear before me for sentence.
2. The maximum penalty in such offending as this is one of life imprisonment. This would show to offenders and would-be offenders that the courts will not tolerate or condone such actions as you did on the complainant. In your case, it was obvious that you pre-planned the offending. You lied to the complainant about going to the main road to carry a bag of rice and a bundle firewood. You and the complainant were on your way when you turned around and raped her. It is also submitted that you used force on the complainant. You shut her mouth and pulled her to the road side and raped her.
3. On your behalf, it was submitted by your lawyer that you are 25 years old. You were 21 at the time of offending. You are single and have no previous conviction. I have noted your previous good character but I am also minded to take note of the comments of Ward CJ in the case of R v Ligiau and Dori [1985-1986] SILR 214 and also applied in the case of R v Phoboro [2013] SBHC 8, whereby the court stated that in sexual offences cases, matters personal to the accused are likely to have less impact on sentencing than in other serious crime.
4. I am told that you have spent 3 years and 8 months in pre-trial custody. That length of time in pre-trial custody is substantial and the court shall take that into account in this sentence. I have also noted that the offending occurred on the 31^st August 2018. The trial of your matter was not heard until October 2021, some 3 years after the offending. There has been a delay in the finalisation of your case and that will be weighed in your favour.
5. In considering the appropriate sentence in your case, I am guided by the principles laid down in the case of R v Billam [1986] 1 WLR 349 in which the court had discussed various starting points for rape cases. Having noted those comments and taking into account the peculiar circumstances of your case, I put your starting point at 4 years imprisonment. For the aggravating feature discussed above, I increase the sentence by 6 months. For the mitigating features in your case and especially your youthfulness, I reduce the sentence by 6 months. Since you have spent a total of 3 years and 8 months in pre-trial custody, I release you at the rising of the court.

Orders of the court.

1. The defendant is hereby sentenced to 4 years imprisonment.
2. I direct that the time spent in pre-trial custody be deducted from the total sentence.
3. The defendant is to be released at the rising of the court.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge