R v Hagemana [2023] SBHC 100; HCSI-CRC 195 of 2021 (27 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hagemana
Citation:
Date of decision:	27 September 2023
Parties:	Rex v Tony Hagemana
Date of hearing:	1 September 2023
Court file number(s):	195 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. The defendant Mr. Tony Hagemana is to serve 9 years and 4 months imprisonment for the offence 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, of which the court has found him guilty of. 2. Date of commencement of imprisonment starts on 27th September 2023.
Representation:	Mrs P.T Waisanau and Mrs A Mono D Kwalai for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136 F (1) (a) and (b) Penal Code S 24 (2)
Cases cited:	Tii v R [2017] SBCA 6, [2013] SBCA 9, R v Bonuga [2024] SBCA 22, R v Liufirara [2023] SBCA 10, R v Ligiau and Dori [1986] SBHC 15, Supa v R, R v Billam [1986] 1 WLR 349,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 195 of 2021

REX

V

TONY HAGEMANA

Date of Sentencing Submission: 1 September 2023
Date of Sentence: 27 September 2023

Mrs P.T Waisanau and Mrs A. Mono
D. Kwalai for the Defence

SENTENCE AFTER CONVICTION

Faukona DCJ: The Defendant was found guilty after trial and was convicted on 22^nd August 2023.

2. What remains for the Court is to determine a sentence that match the facts and the circumstances surrounding the commission for the offence.
3. The offence of Rape is contrary to section 136 F (1) (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty for the offence is life imprisonment.
4. However 5ection 24 (2) of the Penal Code, articulate that a person liable to imprisonment for life or any other period may be sentenced for any shorter term.
5. I am being addressed by the Crown that a maximum penalty depends on the circumstances of the case. It is therefore a discretionary process, and discretion should be exercised according to the recognized principles of law.
6. Reflection on the brief facts of the offence, that the complainant a lady of 63 years, was invited by the Defendant to undergo a custom massage. She accepted and the massage took place in a kitchen on an unknown date between 7^th and 12^th January 2020.
7. During the process of massaging, the defendant pushed his two fingers into the vagina of the complainant who was to him his auntie.
8. The result of penetration of the fingers, the complainant suffered injuries outline in the medical report.

Principle of Sentencing.

9. Traditionally the principle of sentencing hinges on four pillars for consideration. They are retribution, rehabilitation, prevention/protection and deterrence.
10. The Courts have developed the principles of sentencing over the years, yet those legal basis, though traditional they are, forms the principles which guide the courts to exercise their sentencing discretion.
11. In this case I will place emphasis on deterrence alone. The element of deterrence has specific and universal application.
12. Personal deterrence is significant to discourage the offender committing the same or further offences in the future. General deference is required to reflect the wish of the community which do not accept such conduct but condemn it in a strongest term. General deterrence will also ensure or discourage other members of the community from committing similar offence.
13. Is the case of Tii v R^[1] the Court of Appeal stated that, “Ä sentence should be crafted to attain the goals of punishment deterrence and rehabilitation”. In R V Ramo^[2], the Court of Appeal emphasized considering the circumstances surrounding the commission of the offence to determine appropriate sentence.

Aggravating Factors:

14. (a) Age of the victim who was 73 at the time of offending. She was of a Vulnerable age. She was old, sick and weak.

(b). Breach of position of trust and respect. The victim is the defendant’s real auntie

(c). Psychological and emotional effect on the victim. The incident eventually was brought into public domain, thus brought shame on her and family, since the defendant is her nephew.

(d). Psychological and emotional effect on the victim who was forced to be a victim of violence and is brought to court to give oral evidence about the ordeal of what the defendant had done to her. And was subjected to the process of going to the Nurse for examination of her private part.

Mitigating Features.

15. (a) First time offender.

(b) The offence was not a premeditated one.

(c).Time in remand (20 months).

16. Time in remand is not a hard line mitigating feature. In my respectable view, it is only appropriate to mitigate delay. Any extension beyond appropriate time will tantamount to false imprisonment. Only then it can be mitigated. Otherwise in all occasions it is considered as part of sentencing policy where Court can take judicial notice of.
17. When lesser time is spent in custody it is less significant to consider. In some case it operates to safe guide the offender from retaliation. In some cases to allow investigators to carry out investigation process freely and effectively.

Mitigating Features.

18. The mitigating features identified above assist to turn on relevant facts assisting the defendant. I accept the defendant has no previous convictions or criminal history. This is his first offending when he comes to confront with the law.
19. There is nothing in the submissions in regards to personal circumstances for fear as in the case of R v Ligiau and Dori which the court stated that it allow such but have little bearing on sentence on a case of this nature.
20. The Counsel for the defence enlisted another mitigating feature as no premeditation. I cannot accept this fully, on the facts that the defendant was first to make the invitation. He knew the parts he would touch. He knew the victim was an old lady and would not able to resist him physically.
21. I could infer from the facts that the defendant may not premeditate his actions but before actual physical message took place, he offered the invitation, and at the time he invited her he was overwhelmed by evilness and demoniac influence. And that resulted in his actions camouflage by custom massage.
22. No wonder his friend must be kept some distance outside of the kitchen where the massage took place.
23. This is not a case where the defendant set a plan to do what was wrong in law that day. But intention can foster what a man can do even at short manner of time. The defendant’s action is not something that occurred in a spur of a moment but something his ego drove him to do. That evil mindset had driven him to force his fingers into the victim’s vagina and hurt her.
24. This is not a case of reflex-ion an immediate response to factual circumstances. But a case of instant influence of sexual immorality reckless of whether the victim his auntie consented or not.
25. In respect to first offending, it is obvious that consideration to that effect favours the defendant. There is nothing raised about it and there is no objection as to proof of existence. There is no record of any previous convictions that the defendant had previously entangled with the law and was convicted. As such I must consider no previous convictions (first offender) as it is.

Aggravating features.

26. On the part of the prosecution case the aggravating factors emphasized on page 8 of the submissions, suggested as being the facts or circumstances surrounding aggravating the commission of the offence.
27. At the time of offending the victim was 73 years old. By Solomon Islands standard and mortality rate, she lived beyond it. At 73 years, she can be regarded as one of the few that live that period. Not many people in this country live that long.
28. Understandably, with acknowledgment she is a vulnerable person. She is old, feeble, weak and even do not have strength to resist a forceful double finger. The Court has noted she protested but the defendant did not take heed. That was what an old lady could do, nothing more. She allowed her nephew to massage her but the defendant took advantage of her condition and vulnerability to commit the offence.
29. Further to that, the defendant as a nephew was placed in a position of trust and care. Common expectation from the family that he would care and responsible to look after his auntie on that occasion.
30. That trust, responsibility, care and love was breached when he offended against his own auntie.
31. Common understanding will dictate that pain and suffering the victim experienced, had indeed cast no doubt that the offending had caused psychological effect and emotional disorder to her. It also caused shame to her and her family.
32. In the case of R v Bonuga^[3], the Court of Appeal stated that psychological trauma cannot be ignored. The same was echoed in the case of R V Liufirara^[4].
33. The physical harm suffered by the victim were hip pain and vaginal infection. She could not walk properly.
34. She was medically examined, a medical report produced to that effect reveals that there were lacerations on the wall of her vagina and also laceration on the intriotus and perineum.
35. Those injuries reflect the two fingers of the defendant penetrated vagina of the old woman, and they are quite serious for an old lady.
36. Other aggravating factors in addition is that the defendant had contested the information upon arraignment. That certainly require the victim to be called into the witness box to give evidence of the ordeal. She was subjected to stress and trauma when giving evidence.
37. Amidst those the defendant never regret or felt remorse in his submission, for what he had done to his own auntie.

Starting Point

38. After considering the mitigating features and aggravating factors, what is left is for the Court to identify and draw a starting point.
39. The Counsels submit a number of authorities but the most relevant precedent is found in the case of R V Ligiau and Dori^[5], which both Counsels refer to.
40. In that case Court adopted the sentencing guidelines set by Lord Lane CJ in R V Billam where it stated, “For rape committed by an adult without any aggravating or mitigating features a figure of 5 years be taken as starting point in a contested case”.
41. The Court then listed 8 aggravating features. The most relevant ones to this case are, the victim is at very old age, and the effect upon her both physically and mentally, is one of special seriousness.
42. The Court went further and stated, “where any one or more of the aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.
43. Whilst the Crown settles with the case of R V Ligiau and Dori ^[6] , the defence propose the most appropriate case is Supa v R^[7].
44. In that case the appellant was found guilty after trial for forcing a woman into a room and threatened her and had sex with her. The Court of Appeal held that the starting point was seven (7) years imprisonment.
45. On appeal against 8 years, it was allowed and the sentence was reduced to 7 years.
46. Whilst I can appreciate that submission, it failed to provide any evidence that weapon was used to threaten the victims or was he using his voice and physicality. There was no evidence as to the age of the woman. There was no evidence about the result of violation the indignity of the woman and any harm suggested as a result of rape. What is the relationship between them and age disparity. I do not think Supa’s case is the most appropriate.
47. In this case it is not less aggravating that the victim age 73 suffered harm at the hand of his own nephew- see aggravating factors above.
48. This is more serious than Supa’s case. Not only that the victim is very old, but she suffered the effect physically and mentally, which the Ligiau case describe as of special seriousness.
49. Therefore I set 8 years as starting point.
    1. For plea not guilty allowing the old women to go through the ordeal or being subject to examination and cross-examination in court – additional 1 year is given.
    2. For age of the victim which is very old at 73 years a vulnerable victim, an additional of another 1 year.
    3. For betrayal of trust and respect due to the old women as auntie, another additional of one 1 year.
    4. For the physical harm and suffering and anxiety and shame, another 1 year additional.
    5. A total of 12 years
50. For the defendant I grant remission for being first offender – a reduction of 6 months.
    1. For partly pre-meditated offending 6 months deduction.
    2. Deduct time spent in custody of 20 months.
51. The total imprisonment term the defendant will serve is 9 years and 4 months.

Conclusion.

52. This sentence may seem severe, however, I view it as reflecting the facts and circumstance surrounding the commission of the office.
53. The recent amendment to the Penal Code in increasing the maximum penalty in 2016 Penal Code Sexual Offences Amendment Act is a recognition by Parliament of the level of seriousness of the crime and its prevalence. There is need to protect this category of offence occurring within the communities, homes, affecting women and children.
54. With the uplift of the maximum penalty, it offers personal and universal deterrence to the offender and to anyone who may wish to commit a similar crime. Certainly the court is stern and will not hesitate to deal with such offending according to law.
55. The defendant will serve 9 years 4 months imprisonment as of the date of this sentence.

Orders

1. The defendant Mr. Tony Hagemana is to serve 9 years and 4 months imprisonment for the offence 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, of which the court has found him guilty of.
2. Date of commencement of imprisonment starts on 27^th September 2023.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2017] SBCA 6: SICOA 14 of 2016 (5 May 2017).
^[2] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013).
^[3] [2024] SBCA 22; SICOA – CRAC 12 of 2014 (17 October 2014).
^[4] Criminal Appeal Case No. 30 of 2022 (Appeal from High Court Criminal case 94 of 2021.
^[5] Ibid (3).
^[6] Ibid (3)
^[7] ?............................................