R v Gerena [2024] SBHC 121; HCSI-CRC 359 of 2023 (31 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gerena
Citation:
Date of decision:	31 July 2024
Parties:	Rex v Frances Gerena
Date of hearing:	8 February 2024
Court file number(s):	359 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The defendant is finally convicted and sentence to 8 years imprisonment. 2. Sentence to run from the date the sentence is delivered. 3. No deduction on pre-custodial period, none in existence.
Representation:	Mrs P Waisanau & P Fanasia for Crown Ms R Palmer for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences)Act 2016, S 136 F (1) (a) (b)
Cases cited:	Bara v Reginam [ 2018] SBCA 10, Tii v R [2016] SBCA 14, Bade v R [2023] SBCA 39, R v Ligiau and Dori [ 1986] SBHC 15

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 359 of 2023

REX

V

FRANCES GERENA

Date of Hearing: 8 February 2024
Date of Sentence: 31 July 2024

Mrs Waisanau & P Fanasia for Crown
Ms R Palmer for the Defendant

SENTENCE

FAUKONA, DCJ:
Introduction.

1. The defendant, Frances Gerena was charged for the offence of rape contrary to section 136 F (1) (a) (b) of the Penal Code, as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Initially on 1^st November 2023, the defendant pleaded “not guilty” to the charge when it was first read to him. The case was then set for trial from 5^th – 9^th February 2024.
3. On 5^th February 2024, defence informed the court that the defendant instructed that he would like to change his plea. The defendant was arraigned again on the information filed on 2^nd August 2023 and he pleaded “guilty” to it.
4. The Case was adjourned to 8^th February for agreed facts to be finalised and read to the defendant.

Facts of this case as agreed upon.

5. The defendant is from Nata Village, Bola District, big Gela. The complainant is from Rove Village, big Gela. Both Villages are from Gela Island, Central Province.
6. On 1^st January 2023, the defendant, including the complainant’s husband and other boys were drinking at the defendant’s village. They were drinking until early morning of the next day, 2^nd January 2023, between 1am to 4am.
7. After drinking the boys left. The complainant’s husband went and slept at the veranda of his house. The complainant somehow come out of the house and woke her husband to go in and slept inside but the husband was fast asleep. The complainant then went back inside the house to sleep but did not lock the door.
8. Between 5am and 5:30am, the defendant entered the complainant’s house whilst she was sleeping. She was sleeping by herself inside the house.
9. Whilst inside of the house the defendant then laid on top of the complainant. He removed the complainant’s clothes and had sexual intercourse with her by inserting his penis inside her vagina. The defendant also removed her shirt and sucked her breasts.
10. While the defendant had sex with the complainant, she moved her hand along the defendant’s backside and on his hair as well. And that is when she realized that the defendant’s hair was short and not afro like her husband’s hair.
11. Upon realizing that it was not her husband, the complainant pushed the defendant away from her and shouted, “you who ia”.
12. The defendant stood up and ran to the door. His trousers was at his knees. He pulled up his trousers, opened the door and ran out of the house. He ran to the kitchen collected his bag and ran away. There was a solar security light installed beside the house and the complainant could clearly identify the defendant.
13. When the complainant’s husband woke up, she told him what the defendant did to her.

Sentencing Guidelines.

14. The case of Bara v Reginam^[1], the Court of Appeal set significant guidelines for the Judge to follow:
    1. A sentencing Judge should identify a starting point.
    2. From there an adjustment will take account of factors which make the offending more serious (aggravating features).
    3. Or may serve to suggest the sentence is too harsh and often related to the offender than the offence (mitigating features).
    4. After identification of the aggravating and mitigating features and how they affect the starting point, reference should be made to the effect, if applicable, of an early plead guilty.
    5. Where discount be given that should be indicated. Where no discount to be given, a reason for that decision should also appear in the remarks.
6. Where no allowance is to be made for pre-sentence period in custody the court should give reasons, see Tii v R^[2].
7. Finally the application of totality principle of the sentencing to ensure the end result reflect the criminality involved.

The Starting Point.

15. The offence of rape under section 136 F (1) (a) (b) of the Penal Code as amended carries a maximum penalty of life imprisonment.
16. Both counsels agree that the starting point for rape is 6 years in a non-contested case where the victim is an adult. Both refer to the case of Bade v Rex^[3] which set a new starting point which is 6 years for guilty plea and 8 years for contested rape.
17. The Court of Appeal also state in the above case that authorities referred to show aggravating uplift will take starting points into 12 years and above range. That is an appropriate starting point to condemn the worst of this type of offending.
18. I therefore set 6 years as a starting point for rape of an adult woman.

Aggravating features.

19. The rape incident occurred in the early hours of the morning, it was still dark and the victim was still sleeping. It was not a good experience for the victim when she realized the person having sex with her was not her husband. She was shocked to find a stranger having sex with her.
20. The act of sexual intercourse employed by the defendant was reckless in nature to fulfil his sexual gratification, careless of the sanctity of the home of the victim he trespassed into her privacy. She supposed to be secured in the enclosure of her home.
21. The victim was the wife of the defendant’s cousin. There was no respect to his taboo and his cousin brother.
22. At the time of offending the defendant was under the influence of liquor, no excuse can be accepted for the effect of alcohol that caused offending.
23. The case of R v Ligiau and Dori^[4], set out circumstances which aggravated the commission of the offence of rape. Out from some on the list, one that is present in this case is pre-planning. The defendant entering into the victim’s house is well planned with the motive to have sexual intercourse with her. And he did so recklessly without her consent whilst asleep.
24. Succumbed by the influence of alcohol under the cover of night he entered the house. There was no respect to the victim as his sister-in-law. He breach custom taboo in committing the offence.

The Dori case also expressed any one or more of the aggravating features present the sentence should be higher than the starting point.

25. With the present of at least four features warrant an uplift to the starting point.
26. There was no violence used in this case, or assisted by any weapon. Of course the defendant offending warrants an uplift of 4 years, to a starting point of 10 years.

Mitigating Features.

27. The defendant pleaded guilty to the charge on the first day of trial. It was not made at the earliest opportunity. Therefore, the defendant is not entitled to any discount. By pleading guilty the complainant is no longer needed to testify about the incident in court. Of course, I give some allowance to guilty plea.
28. The defendant has no previous convictions which the court has to consider.
29. Compensation of $2,000.00 was paid by the defendant’s family to the complainant’s husband and relatives. They also took 24 pieces of roofing iron 14 feet long. In regards to custom compensation paid the case of Regina v Asuana^[5] had made it clear that it must be limited in its value. The court must avoid attaching such weight to that if it means subsequent buying oneself out of trouble. In this case it appears so. The amount is quite massive. Therefore, I award little weight to it.
30. There are also personal circumstances of the defendant pleaded. That as a young man, he deserve to make amend to his life. He is a good prospect for rehabilitation. H served as a youth leader in his village church. Since committing the offence he stayed away from biblical teachings, however he is committed to change his ways to be a better person in the future. He has admitted his wrong and willing to face consequence of his action.
31. Whilst I adore those prospects and good intention to recommitted his life to the lord, that can only be assessed after custodial sentence is served. Sometimes offenders attempted to influence the court leniency, after discharge, is a different story. For sure conviction for rape require large sentence than moderate.
32. In the Ligiau and Dori case, the court stated that in sexual offence as a whole, and rape and attempted rape in particular, matters of mitigation to the offender must have less effect on the sentence than in most other serious crime. That notion must be accepted in this case.
33. After considering those mitigating features in all, I have given the defendant allowances to reflect the veracity and the circumstance of the case. I therefore reduce the starting point from 10 years to 8 years, a deduction of two years.
34. This sentence is necessary for various reasons. One is to mark the gravity of the offence, to emphasize the public disapproval, to serve as a warning to others, to punish the offender and to protect women in the community.

Orders.

1. The defendant is finally convicted and sentence to 8 years imprisonment.
2. Sentence to run from the date the sentence is delivered.
3. No deduction on pre-custodial period, none in existence.

The Court.
Hon. Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018)
^[2] [2016] SBCA 14
^[3] SICOA CRAC 9017 of 2023
^[4] [1986] SBHC 15, (1985-1986) SILR
^[5] [1986] SBHC 15