R v Kaura [2022] SBHC 92; HCSI-CRC 703 of 2021 (17 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kaura
Citation:
Date of decision:	17 November 2022
Parties:	Rex v Thomas Kaura
Date of hearing:	15 November 2022
Court file number(s):	703 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr Thomas Kaura is hereby convicted of 2 counts of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal code (Amendment) (Sexual Offences) Act 2016. 2. Count 1 - You are hereby sentenced to 7 years imprisonment. 3. Count 2 – You are sentenced to 8 years imprisonment 4. The sentences in counts 1 and 2 are to be served concurrently. 5. I direct that the time spent in pre-trial custody be deducted from the total sentence. 6. Right of appeal.
Representation:	Mr. Andrew Meioko for the Crown Mr. George Gray & Ms Tracy Aisa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amended) (Sexual Offences) Act 2016[cap 26] S 136 F (1) (a), S 136F (1) (a) and (b) Penal Code [cap 26] S 24 (2)
Cases cited:	R v Ligiau & Dori [1985-1986] SILR 214, R v Phoboro [2013] SBHC 8, Pana v Regina [21013] SBCA 19, R v Billam [1986] 1 WLR 349

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 703 of 2021

REX

V

THOMAS KAURA

Date of Hearing: 15 November 2022
Date of Decision: 17 November 2022

Mr. Andrew Meioko for the Crown
Mr. George Gray & Ms Tracey Aisa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Thomas Kaura is charged with 2 counts of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant had changed his plea to guilty pleas after the complainant had given evidence at trial. He was thereby convicted as charged. He now appears before me for sentence.
2. You must know that the offence of rape is very serious and it carries a maximum imprisonment term of life. Notwithstanding the maximum sentence, the courts are empowered under section 24(2) of the Penal Code (cap 26) to impose a shorter sentence depending on the peculiar circumstances of each case.
3. I set out the facts of your case. You and the complainant are both from Harapa Village, Shortland Islands. You are related to the complainant a as cousin.

The complainant is 32 years old and married with five children. She attended Gizo Community High School and reached Form 5.
On the 8^th August 2021, the complainant was asleep in her house with her children. At about 3.00 to 4.00am she heard someone knocking at her door. She answered and that person said “me nomoa sister, Thomas. You come, me like talem you wanfala something”. When she went and opened the door, she saw the person knocking was you. You then pulled her hand and kissed the palm of her hand. You pulled the complainant’s hair and coiled it around your hand. You pulled her hair and told her to follow you otherwise you will push a knife on her neck You continued to pull her hair as you went down the ladder of her house. She went to get her lavalava from underneath her house, whilst you still held a grip on her hair. The complainant asked where your wife was and you told her, she was at your house.
The complainant followed you as you walked towards your house. As you were ready to turn to your house, some 10 to meters away, you pulled her to face you. You kissed her and told her to remove her clothes. At that time she could clearly see the people sitting at your house. The complainant struggled to remove her hair from your grip but you poked her right shoulder with a knife and threatened to stab her with it if she refused to remove her clothes. The complainant removed her clothes and you wanted to have sexual intercourse with her. You tried to push your penis inside her vagina but she struggled with you. You then pushed your penis inside her mouth and she pushed it out again because she wanted to vomit as the penis had reached her throat. You then sucked her breasts and vagina. She struggled and you bit the side of her vagina. She was in pain and could not struggled anymore. You then took that opportunity to push your penis inside her vagina and had sexual intercourse with her. As you were having sexual intercourse wth the complainant you said “hem na kan you selfish lo hem time you small me like holem but you runaway”. You continued to have sexual intercourse with the complainant until you got tired and you told the complainant to move to another place. You were still holding the complainant’s hair around your hand.
You then led the complainant to the seaside. When you reached a dingy at the seaside, you told her to remove her clothes. She pushed her trousers down to her knees, you pushed her head under the dingy. You then had sexual intercourse with her by pushing your penis inside her vagina again. She pushed you away but you said to her “livim mekem you babule”. She did not do anything else for fear of the knife that you had. You then told her “me no nap release na because me over drunk so you wait me go tekem Buga”.You then left her and walked away. At that time the complainant ran away towards her sister’s house and cried to her sister’s husband, one Peter Kavaiti. From there she and her nephew James went and reported the incident to a police officer. The complainant was taken to a nurse and was later taken to Kulitanai Police Station.

4. The very detailed facts stated above came from the complainant who was called to testify in the trial of this matter. In that regard she was subjected to strenuous cross-examination by defence counsel. It was after cross-examination of the complainant that you have decided to change your plea to a guilty plea.
5. On behalf of the crown, it was submitted by Mr Meioko of counsel that there are a number of aggravating features in your case. It is submitted that the timing of the commission of the offence was perfect for you but to the detriment of the complainant. It was between 3.00 to 4.00am and most of the people in the village were asleep and therefore the complainant was very vulnerable. It is also evident that there was pre-planning in the commission of the offence. You called out to the complainant and told her to come out to you because you had something to tell her. That had turned out to be a lie. It is further submitted by the crown that you had a knife in your possession and had poked and further threatened the complainant with the knife if she resisted. Another aggravating feature in your case is that you were very drunk during the commission of the offence. You are reminded that being drunk is not a defence for you but an aggravating feature that will weigh heavily against you. It is also submitted by the crown that there is a breach of trust in your case. The court had heard that you are a cousin to the complainant. You had no respect and no regard to your cousin when you raped her. The complainant was alone with her children and as a brother, you should have been responsible for the complainant’s wellbeing and protection but you have turned around and raped her instead. It is further noted from the crown’s submission that you repeated the offending on the complainant at two different places in the early hours of the 8^th August 2021. According to the statement impact report of the complainant, the effect of what you did to her made her to be afraid of staying alone with her children at her own house. She does not feel safe in her own house anymore. She had to change the lock to her house following the incident. That stigma will remain with her for a long period of time.
6. On your behalf, it is submitted by Mss Aisa of counsel that you have no previous conviction which means you are a person of previous good character. You are now 41 years old and married with 7 children. The two elder children are attending secondary school and the three other children are in primary school. The two youngest children are not attending school because of their age. You are a fisherman and your family relies on you for support. You are a member of the Roman Catholic Church. However having stated the above personal circumstances, I am also minded to take note of the court’s view in the case of R v Ligiau & Dori [1985-1986] SILR 214 and R v Phoboro [2013] SBHC 8; that in sexual offences cases, matters personal to an accused person are likely to have less impact on sentence than in other serious crime.
7. It is further submitted by Ms Aisa that the court should also take into account your guilty plea. I have noted that you decided to change your plea after trial had commenced. The complainant had given evidence in-chief and was cross-examined by your lawyer. Having noted that, you will be afforded some credit on your change of plea. In the case of Pana v Regina [2013] SBCA 19, the Court of appeal was of the view that a reduction of 6 months would be afforded to an accused person that changed his plea after trial had commenced.
8. It is further submitted by Ms Aisa that you have spent a total of 1 month and 18 days in pre-trial custody. That period of time will be deducted from the total sentence in your case.
9. I am guided by both counsel for the crown and the defence on the issue of sentencing of like offenders like yourself. It is worth noting the views of the court in the case of R v Ligiau & Dori [1985-1986] SILR 214 where the court had adopted the views of Lord Lane CJ in the case of R v Billam [1986] 1 WLR 349 which put the starting point of rape by an adult without an aggravating feature at 5 years imprisonment. In the instance that there are aggravating features in a case of rape, the starting point would be one of 8 years imprisonment. I have also noted and have taken into account the other case authorities cited by both counsel in this case.
10. In your case, I have noted that there are several matters of aggravation. You have used a knife to threaten the complainant to submit to your intention. You were in a position of trust to the complainant and you have breached that trust placed upon you. With the other aggravating features already discussed in this sentence, and by the authority of the Billam case, I put your starting point at 7 years imprisonment. For the aggravating features in your case, I increase your sentence by 12 months. For the mitigating features, I will reduce sentence by 6 months and for your change of plea, a reduction of 6 months. Total sentence to serve is one of 7 years imprisonment. For the repetition of the offence on count 2, I will put your starting point at 8 years imprisonment. For matters of aggravation, I increase the sentence by 6 months. For the mitigating features I will also reduce sentence by 6 months. Total sentence to serve on count 2 is one 8 years imprisonment. I direct that the sentences on counts 1 and 2 are to be served concurrently.

Orders of the court

1. The defendant Mr Thomas Kaura is hereby convicted of 2 counts of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal code (Amendment) (Sexual Offences) Act 2016.
2. Count 1 - You are hereby sentenced to 7 years imprisonment.
3. Count 2 – You are sentenced to 8 years imprisonment
4. The sentences in counts 1 and 2 are to be served concurrently.
5. I direct that the time spent in pre-trial custody be deducted from the total sentence.
6. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge