R v Koroua [2023] SBHC 82; HCSI-CRC 175 of 2019 (24 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Koroua
Citation:
Date of decision:	24 August 2023
Parties:	Rex v Ben Koroua
Date of hearing:
Court file number(s):	175 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	Accused Ben Koroua is sentence to 7 years imprisonment, Sentence to commence on the day he was taken into custody on 24th April 2018, No further order
Representation:	Kelesi A & Bako for the Crown Aupai S for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (amendment) (Sexual Offence) Act 2016 S 163 F (1) (a) (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 175 of 202

REX

V

BEN KOROUA

Date of Sentence: 24 August 2023

Kelesi A & Bako for the Crown
Aupai S for the Defence

Sentence

Maina PJ:

1. The accuse Mr. Ben Koroua pleaded guilty and upon own plea convicted on the charge of rape contrary to section 163F (1) (a) (b) of the Penal Code (Sexual Offences) Act 2016.
2. The maximum penalty for the offence of rape is liable to imprisonment for life.
3. The Defendant and the victim Jynairy Hunaia are from Sikaiana village, Sikaiana Island, Malaita Province.
4. As a background, the defendant was 31 years old and the victim was 13 years old at the time of the offence. The victim went to Sikaiana Island and lived with her grandmother Patricia Helavaka at the village and the accused was there in the village.

Agreed facts

5. The summary in the agreed facts described the scenario of the offence by the accused. The summary is as follows:
   1. On 6^th April 2018 between 6:00pm – 7:00pm, the complainant was her house with her grandmother Patricia Helavaka when the accused who was drunk at that time approached them.
   2. The accused told the complainant who was his niece to follow him and get a packet of rice from his house for them to cook. The complainant then followed the accused thinking that he was her uncle, her mother’s first cousin and that she was expecting anything to happen to her.
   100. As they arrived at the accused’s house, there was no body at home and the accused went straight inside the house and lay down on the bed (mattress). The complainant followed him inside.
   4. The accused then told the complainant to massage his back and shoulder where the complainant did so as she did not expect anything negative or bad would happen to her.
   5. After the complainant massaged him, he then told her to lay down facing downward for him to teach or show her how to massage. The complainant did so as she was the instructed and the accused massaged her.
   6. After the accused massaged her (complainant, she got up from the bed. As she stood up, the accused grabbed her lavalava (sarong) she wore. The complainant cried and struggled, as she was afraid of what the accused was doing to her.
   7. The complainant cried and tried to hold on to her lavalava (sarong). The accused grabbed the complainant and removed her lavalava, pushed her on the bed faced up, quickly undressed himself, went on top of the complainant and told her to widen her legs but she refused so he widened her legs and pushed his penis into her vagina. The complainant cried and struggled but the accused keep pushing his penis into her vagina. The accused told the complainant that he will ejaculate (bosta) her and that he will be the first person to ejaculate her.
   8. The accused not long after ejaculated on the complainant’s thighs.
   9. In the course of the incident, there were three people whom they went to call for the complainant at the accused’s house. They are Annie the complainant’s cousin sister, Patricia the complainant’s grandmother and Allen the complainant’s stepfather.
   10. As they called for the complainant, the accused told the complainant not to respond and threatened her that if she responds he would murder her with his knife or hang her.
   11. After the incident, the accused took the complainant to the school to look for his wife.
   50. Upon their return from the school and heading towards the complainant’s house, they met Edna the complainant’s aunt and the complainant cried as she saw her aunt.
   13. The complainant was still crying as they reach her house where her stepfather, her grandmother and her cousin sister were there at that time.
   14. The complainant then told her aunt Edna and her grandmother afterwards of what the accused did to her.

Starting Point

6. The starting point for rape in this jurisdiction has been settled in the sentences delivered by High Court and the Court of Appeal in the numerous cases.

Rape is serious offence and the starting point is 5 – 8 years. The former for plea of guilty cases and the later on conviction at the trail.

7. It is a common knowledge that this type of offences is becoming more prevalent our country or jurisdiction and the courts in the previous case sentences have expressed the concerns on the raise of this type of offences.
8. On part of the courts, they have imposed sufficient general and specific deterrence to the offenders and continually stated that those who commit this type of offence should expect an immediate custodial sentence.
9. For this accused, he has a previous conviction of 2 years imprisonment on rape charges and it was about 11 years ago. I note this happened some years ago however, the repetition of the offence lures in the seriousness of his case.
10. On the aggravating features:
    • The accused is the uncle of the victim who is the first cousin of her mother and his act of sex with her is surely an abuse of trust. The accused was expected to respect, protect and care for her as a young girl of tender age but he instead took advantage and committed the offence. He used his position of trust to abuse the victim.
    • The victim was 13 years old, young and vulnerable age at the time of the offence and this is serious. Being a child, she was disadvantaged by the disgraceful sexual behaviour of the accused and he took advantage of her young age.
    • For the disparity in age, the accused was 31 years old at the time of the offence, while the victim was 13 years old, a difference of 18 years
11. I note and take into account in this sentence the following mitigating factors:
    • The guilty plea of the accused,
    • This guilty plea, though serves time of the court it was after the other charge was dropped and or the amendment of this charge. For guilty plea, I give credit to you and take into account in this sentence.
12. There is a delay of more than five years and it may be with the Police investigation, bringing of the witnesses from Sikaiana at the first at first appearance plea of not guilty.
13. The fact that the accused has a previous conviction of rape, it is my view and although it was some years, his the repetition of the rape offence raise the seriousness of the current charge against him.
14. Taking into account all the aggravating features, mitigating factors, previous conviction on the same offence of rape, delay of the case the guilty plea and no violence was involved, I am satisfied the appropriate sentence for this accused is seven (7) imprisonment.

Order of the Court

• Accused Ben Koroua is sentence to 7 years imprisonment,
• Sentence to commence on the day he was taken into custody on 24^th April 2018,
• No further order

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge