R v Pisa [2023] SBHC 13; HCSI-CRC 358 of 2019 (14 April 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Pisa
Citation:
Date of decision:	14 April 2023
Parties:	Rex v David Pisa
Date of hearing:	3 April 2023
Court file number(s):	358 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Court will convict the defendant of rape on his entering of an early guilty plea premised on agreed facts. Court will sentence the defendant to 5 years imprisonment. But the defendant will be released at the raising of the Court in view of my remarks in paragraph 4.
Representation:	Ms Oligari for the Crown Mr Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136F, Constitution S 10 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 358 of 2019

REX

V

DAVID PISA

Date of Hearing: 3 April 2023
Date of Sentencing: 14 April 2023

Ms Oligari for the Crown
Mr Kwalai for the Defendant

CONVICTION AND SENTENCE

Introduction

1. On the 20^th of March 2023, Counsel Manu and Waroka appeared. Counsel told me that matter will be prepared for sentencing on the next appearance, as the defendant is likely to enter a guilty plea. However today Counsel Oligari and Kwalai appeared and asked for adjournment because the proposed agreed facts are yet to be settled. I refused to adjourn. I directed Counsel to settle the agreed facts in Court. Defendant will take his plea followed by sentencing. This is a 2019 matter. It seems that the DPP and PSO are playing around with the file. The accused had been on remand since November 2018. This kind of delay must not happen in my Court. I arraigned the defendant. He pleaded guilty to the charge of rape contrary to Section 136 F (1) (a) and (b) of the Penal Code (Cap 26) as amended by the Penal Code (Amendment ) (Sexual Offence) Act 2016.

Agreed Facts

2. The agreed facts shows the following:
   • (i) The defendant is Mr David Pisa, of Valetako Village, South East of Guadalcanal, Guadalcanal Province.
   • (ii) The complainant is Ms Caroline Martha, of Valetako Village, South of East Guadalcanal, Guadalcanal Province. She was 20 years old at the time of offending.
   • (iii) The complainant is the cousin sister of the defendant in this matter.
   • (iv) The defendant was 27 years old at the time of offending.
   • (v) The offending occurred on the 18^th of October 2018, at about midday. The complainant Carolyn Martha, was on her way to a nearby river side called Popopo Area, near her Village, to look for home medicine.
   • (vi) On her way, walking in the bush, she screamed when she saw a known person by the name of David Pisa, who grabbed her from behind, by holding her two shoulders and pushed her down on the ground and demanded her to take off her clothes. She refused and the defendant persisted, and she told the defendant she did not want to have sex.
   • (vii) The complainant struggled but she could not manage to overcome him.
   • (viii) The defendant was already naked. The complainant tried calling for help but no one was around to assist her.
   • (ix) The defendant then told the complainant to be quiet otherwise he will kill her. The defendant over-powered her and took off her clothes. The complainant continued to struggle with the defendant, until he hit the right side of the complainant’s head near her ear three times, which cause her to feel great pain.
   • (x) The defendant then pushed the complainant to the ground. The defendant then knelt down and tapped her thighs. He then proceeded to lay down on top of the complainant and pushed his erected penis into her vagina. He then had sexual intercourse with the complainant and ejaculated into her vagina.
   • (xi) After that he left the complainant. The complainant found her clothes and wore them and started to walk back.

Starting point sentence and aggravating factors

3. Rape is a serious offence having the maximum penalty of life imprisonment. The starting point sentence I will put here is at 5 years, because the circumstances are not highly exceptional (not at the top scale or not more than ordinary danger) yet the defendant’s actions are not condoned. Then I will add 4 years (9) because of aggravating factors such as – violence (defendant hit, threatened and over-powered the complainant to secure sex/penetration), age disparity (defendant is older than the victim), young age vulnerable child, relative (defendant is in a position of trust to the victim) and isolated place (no one to aid the victim).

Mitigating factors

4. But then there are mitigating factors such as - early guilty plea (shows remorse, victim not subjected trial trauma and cut down on trial time), no previous conviction and delay (the defendant was placed on remand in November 2018). I will deduct 4 years (5). I noted in particular that the defendant had spent 4 years and 6 months of delay in pre-trial custody, waiting for his trial. This is a breach of his fundamental constitutional right to fair hearing within a reasonable time (Section 10 (1) of the Constitution). Spending 4 years and 6 months (by April 2023) on remand is adequate punishment already. Time spent in the correctional centre would have helped the defendant to be a rehabilitated person to settle back into his community with a reformed mindset and character.

Conclusion and Orders

5. Court will convict the defendant of rape on his entering of an early guilty plea premised on agreed facts. Court will sentence the defendant to 5 years imprisonment. But the defendant will be released at the raising of the Court in view of my remarks in paragraph 4.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE