R v Sugui [2023] SBHC 166; HCSI-CRC 14 of 2021 (24 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sugui
Citation:
Date of decision:	24 November 2023
Parties:	Rex v Sugui
Date of hearing:	8 November 2023
Court file number(s):	14 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Allowing for 3 years reductions in respect of valid mitigating factors, the final head sentence I will impose is 11 years. This sentence should deter you and like-minded persons from rape. You will be entitled to a further reduction in respect of pre-trial custody times, which the Correctional Authority may determine. This sentence will commence from the 18th September 2023.
Representation:	Mr Auga for the Crown Mr Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136F (1) (a) (b) [cap 26]
Cases cited:	Bade v R [2023] SBCA 39, Rex v Ramaia [2012] SBHC 96

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 14 of 2021

REX

V

SUGUI

Date of Hearing: 8 November 2023
Date of Sentence: 24 November 2023

Counsel: Mr Auga for the Crown
Counsel: Mr Bosa for the Crown

Keniapisia; PJ

SENTENCE FOR RAPE

Introduction

1. Mr Sugui, I convicted you for rape in a verdict delivered on the 18/09/2023. Now I have to determine the appropriate punishment. The offence you committed is serious. It carries a maximum statutory punishment of life imprisonment (Section 136F (1) (a) (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No. 3 of 2016). However, I have power to impose a lesser term of imprisonment.

Starting point sentence

2. The starting point sentence to reflect the gravity of your offending according to new bench mark sentencing guidelines set by the Court of Appeal is 8 years for your contested rape trial. For uncontested rape trial (guilty plea) it should start at 6 years. Counsel agreed that the starting point sentence should be 8 years – a new tariff according to the recent Court of Appeal decision of Rex v Bade^[1]. Court of Appeal precedent is binding on me.

Aggravating factors

3. Then I must lift the starting point sentence upwards to reflect the seriousness of various aggregating factors present in your case. I will briefly discuss the aggregating factors to justify the uplift of the starting point sentence: -
   • (i) Physical force involved – defendant being a masculine matured male person over-powered the victim to achieve his sexual desires. Victim is a vulnerable epileptic patient. She was weak in her physical stature. Mr Sugui, you applied force to secure sexual intercourse and thereby rape the victim (see paragraph 24 of the verdict).
   • (ii) At night at an isolated location – you were a total stranger to the complainant. In the middle of the night (darkness) at an isolated location, you seized the opportunity, forced the run-away victim and raped her. Victim had a troubled mind. And was running away from her drunken and arguing/fighting parents. It must have been a nightmare for her, when you took advantage of her vulnerability at an isolated location to satisfy your selfish sexual lust. These facts are taken directly from the verdict at paragraphs 19, 20, 21 and 22.
   • (iii) Drunkenness – you were drunk. In the verdict, I found that drunkenness was the factor that activated your mind and body, driving you crazily into a highly sexual mood to act as you did - run after the victim at night, asked her for sex and when she refused forced her into having sexual intercourse. Drunkenness is a self-induced mental incapacity forcing you or men nowadays, to go crazy and engage in unwanted sexual activities. In my considered view, drunkenness/alcohol must become an aggregating factor, where it is present and driving the accused person to engage in unwanted sexual activity as in here. No person should get drunk to have courage to cause a problem.

(iv) Age disparity – you were 47 years old and victim was 20 years old at time of offending. Age disparity of 27 years. For an older person, there is an expectation of being responsible and accountable in protecting young girls from sexual offending (Rex v Ramaia^[2]).
(v) Victim a vulnerable person with significant disability - I noted in my verdict that the victim suffers from epileptic condition. Being a female, she is already vulnerable and weak. The epileptic condition exacerbated the situation making the victim weaker and more vulnerable. You used your physical superior strength to overpower the already weak and significant disabled victim to satisfy your sexual desires.
(vi) Psychological harm – aggravating factor I must always take judicial notice of despite the lack of expert evidence. This is an eminent impact on girls whereby they have gone through some kind of degradation and low-esteemed feelings, as a result of sexual abuse, not only for the victim, but her family as well.

4. For the above 6 serious aggregating factors, I will make an uplift of the starting point sentence to 14 years. That is 1 year in respect of each aggregating factor.

Mitigating factors

5. However, there are mitigating factors that will reduce the inflated sentence to your advantage.
6. Defence submit that you are a first-time offender. However, on the evidence the Crown produced, this is rebutted. Police records shows that you have at least 12 previous convictions, the latest in year 2004. I will not take into account first time offender as a mitigating factor to your benefit.
7. Defence also submitted that your personal circumstances should become mitigating factors. Personal circumstances, like father, breadwinner, sickness, school fee, old age etc. I can only take less attention to your personal circumstances. Nevertheless, I will deduct 1 year.
8. Defence also submit that delay is a mitigating factor. Delay in my considered view should be shared equally between the court process, Crown and defendant himself as the Crown convincingly submitted at paragraphs 6 and 7 of written submission. I will nevertheless allow 1-year deduction.
9. Defence further more submit compensation was paid in custom and is a mitigating factor. Custom is always recognised as a mitigating factor, but must not be used to buy out the defendant from punishment. For what it is worth in custom, I will allow 1-year reduction.

Conclusion and Orders

10. Allowing for 3 years reductions in respect of valid mitigating factors, the final head sentence I will impose is 11 years. This sentence should deter you and like-minded persons from rape. You will be entitled to a further reduction in respect of pre-trial custody times, which the Correctional Authority may determine. This sentence will commence from the 18^th September 2023.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Criminal Appeal Case No 17 of 2023 (13^th October 2023).
^[2] [2012] SBHC 96; HCSI_CRC 97 of 2019 (24^th July 2021).