R v Usi [2022] SBHC 59; HCSI-CC 150 of 2019 (18 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Usi
Citation:
Date of decision:	18 August 2022
Parties:	Regina v Tony Usi
Date of hearing:	22 July 2022
Court file number(s):	150 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1 The defendant is convicted of 1 count 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, 1 count of intimidation contrary to section 231 (1) of the Penal Code (cap 26) and 1 count of criminal trespass contrary to section 189 (1) (a) of the Penal Code (cap 26. 2 Count 1 – the defendant is sentenced to 3 years imprisonment 3 Count 2 -the defendant is sentenced to 12 months imprisonment 4 Count 3 – the defendant is sentenced to 1 month imprisonment 5 Sentences in respect of counts 2 and 3 to be served concurrently 6 Sentence on count 2 and 3 to be served consecutive to count 1 7 I direct that the sentence on count 2 is suspended for a term of 12 months on good behaviour bond. 8 The defendant is to be released at the rising of the court. 9 Right of appeal
Representation:	Ms. Hellen Naqu & Ms Geitaba Waletofea for the Crown Mr. Ben Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 136F (1) (a) (b) [26] Penal Code S 189 (1) (a)
Cases cited:	R v Ligiau & Dori [1986] SBHC 15

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 150 of 2019

REGINA

V

TONY USI

Date of Hearing: 22 July 2022
Date of Decision: 18 August 2022

Ms. Hellen Naqu & Ms Geitaba Waletofea for the Crown
Mr. Ben Alasia for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr. Tony Usi is hereby charged with 1 count 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, I count of intimidation contrary to section 231 (1) of the Penal Code (cap 26) and 1 count of criminal trespass contrary to section 189 (1) (a) of the Penal Code (cap 26). The defendant had initially pleaded not guilty to all charges and a trial date was fixed for the 18^th July 2022. On the trial date, the court was advised by counsel that the defendant intended to change his plea and he was consequently re-arraigned. Upon being re-arraigned on the 3 charges, the defendant had entered guilty pleas on each charge. The defendant was thereby convicted as charged and he now appears before me for sentence.
2. You are reminded that the offence of rape is very serious and carries a maximum penalty of life imprisonment. The offence of intimidation carries a maximum sentence of 3 years imprisonment and criminal trespass is one of 3 months imprisonment.
3. The facts of your case are that you are from Manaoba Village, North Malaita, Malaita Province. You were 38 years old at the time of incident. The complainant is from Marau, South Guadalcanal. She was almost 20 years old at the time of incident. You are married to the complainant’s aunt.

On the 11^th August 2018, the complainant was at the Henderson market area selling cabbage with 2 other persons. They were intending to return home that evening but then the complainant remembered you took her mobile phone earlier that day and she approached you. You were drunk and you refused to return the complainant’s phone unless she followed you. You then pushed the complainant into a taxi and drove off in a westerly direction. You told the taxi driver that the complainant was your wife. You went to Baranamba area and you and the complainant dropped from the taxi. You forced the complainant to follow you into an incomplete house. Whilst in the house, you told the complainant to remove her clothes but she refused. You then removed your own clothes and then the complainant’s clothes. You forced the complainant to lay down on the floor and you had sexual intercourse with her without her consent. You ejaculated inside her vagina.
On the 13^th September 2018, you went to Henderson area where Ms Flora Koesaisa was residing with Lisa Embi. You were in possession of a scissors on that occasion and threatened to kill anyone who speaks Weather Coast language because you claimed that someone swore at you when you called Ms Flora Koesaia’s phone number. You have entered into Lisa Embi’s property without permission or lawful excuse.

4. Having stated the facts in your case and in order for me to impose an appropriate sentence against you. I must take into account the aggravating features and the mitigating features herein. It is submitted by the crown that there are a few aggravating features in your case. Firstly is the disparity of age. At the time of incident you were 38 years old and the complainant was 20. The age difference between you was one of 8 years. It is also submitted that there is an abuse of position of trust in your case. According to the agreed facts, you are married to the complainant’s aunt. In that type of relationship, you are looked upon as a father-figure to the complainant. Being a matured and responsible person, you are not expected to sexually molest the complainant who is your niece through marriage. It is also noted that you held captive in a taxi the complainant before your raped her. That would have been an agonising experience for the complainant. It is also noted that you were drunk at the time of the incident and that is an aggravating feature against you. If you have been sober-minded, you just might not have done what you did to the complainant. You must know that being drunk is not a defence for you but is an aggravating feature that will be weighed against you. I said that because you have 2 previous convictions relating to drunkenness and it would be obvious that you would be unable to control yourself whilst you are drunk. You should now know that if consumption of alcohol had caused you to break the law, then you should start thinking of quitting alcohol. It is your choice to make so choose wisely so that you do not get into trouble in future.
5. It is also noted that you used a weapon to enter and threatened those present at Lisa Embi’s area at Henderson. It is further noted by the court that what you did to the complainant as well as Ms Embi have caused psychological and emotional trauma on them. You are a well-built matured person and you have molested and threatened women who are of the weaker gender. You must learn to have regard and respect for women because they have the same rights as you do. You have no right to demean and molest women and you ought to be punished for what you did. This punishment would show to you that the courts do not condone and will not tolerate such offending as these.
6. On your behalf it is submitted by your lawyer that you have pleaded guilty to the offending. It was not an early guilty plea but that in entering a guilty plea, you have saved the courts time and resources into conducting a trial into the matter. It also saves the complainant from coming to court to give evidence in a contested trial. Your guilty plea also shows remorse on your part. I am told you are now 42 years old and married with 2 children. Having noted your personal circumstances, I am nonetheless guided by the principles set out in the case of R v Ligiau & Dori [1986] SBHC 15, in which Ward CJ stated that in sexual offences cases, matters personal to the accused person will have less impact on their sentence.
7. I am informed that you have been in pre-trial custody since the 17^th September 2018. To this date, you would have spent a total of 3 years, 11 months and 1 day in custody. That period of time will be taken into account in your sentence. I have also noted the delay in the prosecution of your case. The offences were committed on the 11^th August and 13^th September 2018 respectively. The matter was committed to this court on the 17^th December 2018. The information against you was filed by the office of the DPP on the 17^th August 2020, almost 2 years after committal. I can therefore say that most of the delay was caused by the office of the DPP in the delay of the filing of the information against you. That delay will also be taken into account.
8. After having discussed your case and the applicable principles to be applied in sentencing, and on count 1, I would put your starting point at 4 years imprisonment. For the aggravating features discussed, I would increase your sentence by 12 months. For the mitigating features, I would reduce your sentence by 2 years. Total sentence to be served is one of 3 years imprisonment. For count 2, I put your starting point at 18 months imprisonment. For the aggravating feature, I increase the sentence by 6 months, for the mitigating features, I reduce it by 12 months. Total sentence to serve for count 2 is one of 12 months imprisonment. For count 3, I hereby sentence you to 1 month imprisonment. The sentences on counts 2 and 3 are to be served concurrently and to be served consecutive to count 1. For the delay in the prosecution of this case, the sentence in count 2 of the charges is fully suspended for 12 months.

Orders of the court

1. The defendant is convicted of 1 count 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, 1 count of intimidation contrary to section 231 (1) of the Penal Code (cap 26) and 1 count of criminal trespass contrary to section 189 (1) (a) of the Penal Code (cap 26.
2. Count 1 – the defendant is sentenced to 3 years imprisonment
3. Count 2 -the defendant is sentenced to 12 months imprisonment
4. Count 3 – the defendant is sentenced to 1 month imprisonment
5. Sentences in respect of counts 2 and 3 to be served concurrently
6. Sentence on count 2 and 3 to be served consecutive to count 1
7. I direct that the sentence on count 2 is suspended for a term of 12 months on good behaviour bond.
8. The defendant is to be released at the rising of the court.
9. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge