R v Solo [2022] SBHC 67; HCSI-CRC 573 of 2017 (3 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Solo
Citation:
Date of decision:	3 August 2022
Parties:	Regina v Francis Solo
Date of hearing:	3 August 2022
Court file number(s):	573 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 On count 1 you are sentenced to 6 years and 6 months’ imprisonment. 2 On count 2 you are sentenced to 7 years’ imprisonment. 3 The sentence on count 1 is concurrent with the sentence on count 2 making a total of 7 years’ imprisonment commencing today.
Representation:	Ms D B Oligari for the Crown Mr A Tinoni for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136F (1) (a) and (b),
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013] SBCA 19, Soni v Reginam [2013] SBCA 6, Alu v Reginam [2016] SBCA 8, Laui v DPP [1986] SBHC 4, Regina v Maewanusi [2010] SBHC 53, R v Firinao [2019] SBHC 104, Regina v Oge [2004] SBHC 72, Kyoi v Reginam [2004] SBHC 90

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 573 of 2017

REGINA

V

FRANCIS SOLO

Date of Hearing: 3 August 2022
Date of Decision: 3 August 2022

Ms D B Oligari for the Crown
Mr A Tinoni for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Patrick Solo, you have been found guilty on two counts of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

Facts

2. You are the brother-in-law and cousin of the victim. In April 2017 the victim was working on an assignment for school at the library. After she left the library you were waiting in your taxi. You offered to drop her at home. You did not do so. Instead you drove to a beach past White River in west Guadalcanal. There you raped her in the back seat of your taxi. You then returned and dropped her off where she could walk home.
3. On 24 May 2017 you saw the victim walking home from school. She was in the company of a school friend. You were in your taxi. You offered to take them home. You dropped off the school friend then drove the victim to a secluded place. You told her that you would not do what you had done to her on the previous occasion. That turned out to be untrue. You again raped her in the back of your taxi. You then returned her to a place where she could walk home. On both occasions you took off her clothing while she struggled. You used your greater weight and strength to overpower her. The victim was aged 18 and lived in the same house as you with her uncle’s family. Her parents lived in their village.
4. You were remanded in custody from 26 July 2017 until 23 August 2017 and again from 26 July 2022 until today following the delivery of the verdict.

Aggravating factors

5. I find that there was a gross breach of trust. You lived in the same house as the victim. You are her cousin. You are also her brother-in-law. You took advantage of the trust to sexually violate her. Having done so on one occasion you promised you would not do it again yet that is just what you did on 24 May 2017.
6. The first offence was pre-meditated. You had waited outside the library for the victim, knowing she was working inside.
7. The offending took place on two separate occasions.

Mitigating factors

8. The prosecution acknowledge that you have no previous convictions.
9. It is now 5 years since the offending so you have had this hanging over you for a long time.

Starting point

10. It has been well settled since R v Ligiau and Dori [1986] SBHC 15 that for a single offence of rape after trial, where there is no aggravating nor mitigating factor, the starting point is five years’ imprisonment. This has been confirmed by the Court of Appeal in Pana v Regina [2013] SBCA 19 and Soni v Reginam [2013] SBCA 6.

Discussion
Consecution/Concurrent

11. Where offending takes place on more than one occasion the Court is required to consider whether the sentences to be imposed should be concurrent or consecutive. The Court of Appeal in Alu v Reginam [2016] SBCA 8 approved the approach taken by this Court in Laui v DPP [1987] SBHC 4. In Laui the Court had said:
12. “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not then consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time a should properly be made concurrent.”
13. In the present case although the offending was on two separate occasions a few weeks apart I regard the second as a continuation of the first and as such the two will be treated as a single transaction with the fact that the offending occurred again on the same victim as a matter of considerable aggravation.
14. In Alu there were two counts of rape within a 24 hour period. The accused was not in a position of trust but there were other features of aggravation not present in your case. The Court in Alu dealt with that case as follows:
    • “Counsel for the appellant does not challenge the sentence of nine years ordered for count one and we agree it is appropriate. On the other hand, we consider the second offence was serious enough to merit a higher sentence of eleven years. As part of a single transaction, that should be concurrent with the sentence for count one giving a total sentence of eleven years. Finally, we consider that would be an appropriate total sentence for the conduct in the case as a whole.”

Deterrence

15. In this case I am required to consider the need for both general and specific deterrence. The community is entitled to know that those who prey on women for their own gratification and who do so in breach of the trust that exists within a family can expect to receive significant loss of liberty. You knew what you were doing was wrong. You had said to the victim before the first rape that you were having bad thoughts about her. She tried to talk you out of what you were doing and struggled but you proceeded to rape her. On the second occasion you promised that you would not do what you had done on the previous occasion which I accept was the earlier rape. You still proceeded to rape her on a second occasion. There is therefore a need for specific deterrence for you in the sentence I impose.

Delay

16. You were committed to the High Court on 5 October 2017. You first appeared in this Court in January 2018. You were arraigned in March 2018. Your case was delayed for various reasons including not being reached as a reserve trial on two occasions. There was a delay when a summons was required when you had not appeared in Court although many of the delays appear to have been from difficulties in having representation or having counsel take instructions or the failure of counsel to appear in Court. The effect of these delays is that from your first appearance in this Court there has been a delay of more than 4 and a half years to bring your case to a conclusion. Your counsel has asked that the Court give you credit for the delay in having this matter concluded.
17. In Regina v Maewanusi [2010] SBHC 53 the offender 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 R v Firinao [2019] SBHC 104, the Chief Justice allowed a discount of 5 years for the delay of 10 years in bringing the case to a conclusion.
18. 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.”
19. In Kyoi 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.
20. Having carefully considered all the authorities concerned with delay I note that the delay does not appear to have been caused by the prosecution but certainly the delay has been brought about by the State agencies, representation by the Public Solicitor’s Office and the reserve trials not proceeding. The intervention of the COVID 19 pandemic has also delayed this matter. I recognise that although you were on bail for most of the time you have had this hanging over you for a long time. I therefore proposed allowing a reduction in the term of imprisonment to be imposed.
21. For the first offence I take a starting point of 5 years’ imprisonment. There needs to be an increase to reflect the breach of trust. There also needs to be an increase to reflect the pre-planning. I increase the figure of 5 years by 18 months making a sentence of 6 years and 6 months’ imprisonment. I would have allowed a reduction to take into account that you had no previous convictions. However, you offended again. The second offence, merits a higher starting point than the first. As part of a single transaction the sentence is concurrent with the sentence on count 1 but there must be an uplift to reflect the totality of the offending. In Ligiau and Dori the Court identified aggravating features that included being in a position of responsibility and where a rape was repeated. On count 2, I take a starting point of eight years’ imprisonment. Because you raped the victim on a second occasion you cannot be said to be of good character. Any reduction for your previous lack of prior convictions must also reflect the breach of trust on two occasions. As this Court has said on many occasions, matters of mitigation personal to the offender must have less effect on the sentence for rape than in most serious crimes.
22. I must consider the effect of your offending on the victim which in this case has been set out in a helpful Victim Impact Statement. She will have to live with the consequences of what you did to her. It understandably continues to affect her to this day.

Conclusion

23. For the second offence to reflect the aggravating features including the fact that the rape was repeated, there was a breach of trust on two occasions and to recognise the effect on the victim I take a starting point of 8 years and six months’ imprisonment. There will be a reduction of one month to reflect the time you have spent in custody and a further 17 months’ reduction to reflect the delay you faced in this matter coming to trial and your lack of previous convictions.
24. The final sentence is therefore 7 years’ imprisonment commencing from today.

Orders

1. On count 1 you are sentenced to 6 years and 6 months’ imprisonment.
2. On count 2 you are sentenced to 7 years’ imprisonment.
3. The sentence on count 1 is concurrent with the sentence on count 2 making a total of 7 years’ imprisonment commencing today.

By the Court
Justice Howard Lawry PJ