[1988-1989] SILR 4

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 2 of 1988

KORAUA and KAITIRA

v

REGINAM

Solomon Islands Court of Appeal
(Connolly, P. Sir Mari Kapi and Savage JJA)
Criminal Appeal Case No.2 of 1988

Hearing: 31 August 1988
Judgment: 1 September 1988

Application for leave to appeal against sentence - Appellants charged with rape but convicted of attempted rape - Appellants acting in concert - whether an aggravating factor - proper proportion between sentences for attempted rape and completed rape.

Facts:

The Appellants were charged with rape but were convicted of attempted rape.

The Appellants, the complainant and others had been drinking at the White River beach. On the way to the road to catch a taxi the Appellant Koraua asked the complainant to go with him for a talk but on her refusal he pulled her to some long grass and had full intercourse with her against her will.

She struggled and shouted and the others came. A girl tried to help the complainant but Kaitira threatened to kill her and so she left to get help. Kaitira then had intercourse with the complainant against her will.

The medical evidence was inconsistent. The first medical doctor found that the complainant’s hymen was intact over the anterior part of the vagina. A second examination by another doctor found there was no sign of the hymen and expressed the opinion that the complainant had had frequent intercourse.

The Chief Justice, because of the inconsistency of the medical evidence, found that he could not be sure to the required standard and acquitted the Appellants of rape but convicted them of attempted rape.

Held:

(1) The accounts given in evidence as to the exact course of events were confused but there was evidence that two persons were involved and they acted to some degree in concert. Each by his presence, and by acting as he did, gave support to the other. This aggravated the seriousness of the offence committed by each.

(2) Generally an attempt is to be punished with a lesser sentence than that for the completed offence but there may be some circumstances in which an attempt will be more severely punished than a complete rape in other circumstances.

(3) There may be circumstances when an attempt is almost as serious as the complete rape would be. The present case is an example based on the Chief Justice’s findings. This was not an attempt that was half-hearted or one in which conscience or remorse caused the Appellants to draw back. The reason for the conviction for attempt rather than completed rape was the doubt left in the mind of the Chief Justice by the medical evidence.

(4) No direct proportion can always be kept between sentences for attempts and the complete offence because so much depends on the particular circumstances. A proper proportion had been kept in this case and had this been a conviction for a completed rape the sentence would have been greater because of the aggravating feature.

The sentences were not plainly excessive and thus the applications for leave to appeal were dismissed.

Cases referred to:

R. v. Ligiau and Dori [1985-1986] SILR 214

A. Radclyffe for the Appellants
F. Mwanesalua, DPP, for the Respondent

JUDGMENT OF THE COURT: The two Appellants, who had been charged with rape, were convicted in the High Court at Honiara on the 22 March 1988 of attempted rape. They were sentenced the same day; Koraua to four years imprisonment and Kaitira to three and a half years. They now seek leave to appeal against the sentence.

The circumstances surrounding the offence are fully set out in the judgment of the learned Chief Justice but, briefly, are as follows. The Complainant, two other women and a young girl went with the two accused and another man to White River where they sat on the beach drinking. Later when the drink was finished they went to the road to look for a taxi. On the way the Appellant Koraua asked the Complainant to go with him for a talk and when she refused he pulled her a short distance to some long grass, where she said he had full intercourse with her against her will. While this was happening she struggled and called out. The others came and when one of the girls went to the Complainant’s assistance the other Appellant, Kaitira, threatened to kill her if she persisted, so she ran away to get help. The Appellant Kaitira then also had what the Complainant described as full intercourse with her.

On the day of the offence the Complainant was medically examined. The doctor said he found the Complainant’s hymen was intact over the anterior part of the vagina. Three week later another doctor examined her and his evidence was that he found no sign of the hymen. He gave his opinion that she had had frequent intercourse.

The learned Chief Justice in his judgment said he believed the Complainant and, in particular, he believed she was being honest in saying that full penetration had occurred. However, in view of the medical evidence he could not be sure to the required standard and therefore he acquitted the Appellants of rape but convicted them of attempted rape. He added that the evidence showed clearly that the two accused had each made a serious and determined attempt.

A number of matters were urged by Mr Radclyffe in support of the appeal. The Chief Justice when imposing sentence had noted that two were involved. Mr Radclyffe submitted that this was not strictly correct and it should not have been treated by the Chief Justice as an aggravating factor. We accept that the accounts given in evidence of just what occurred are somewhat confused as to the exact course of events but we are satisfied that, in effect, two persons were involved and that they acted to some degree in concert. Each by his presence, and by acting as he did, gave support to the other. We are satisfied that that aggravated the seriousness of the offence of each.

Next Mr Radclyffe urged that no adequate allowance had been made for the fact that the convictions were for attempts and not the completed offence. He pointed out that while the maximum sentence for rape is life imprisonment, the maximum for an attempt is seven years. We accept that, generally speaking, an attempt is to be punished with a lesser sentence than that for the completed offence, but there may be some circumstances in which an attempt will be more severely punished than a complete rape in other circumstances; further, there may be circumstances when an attempt is almost as serious as the complete rape would be. We think this is such a case in the light of the Chief Justice’s findings. This was not an attempt that was half hearted or one in which conscience or remorse caused the Appellants to draw back. The reason for the conviction for an attempt rather than completed rape was the doubt left in the mind of the Chief Justice by the medical evidence.

Arising out of this point is the question of keeping a proper proportion between sentences for attempted rape and completed rape. Mr Radclyffe suggested to us that the usual range for sentences for rape, in the general run of cases, was between four and eight years and he drew our attention to the judgment of the Chief Justice in R. v. Ligiau and Dori [1985/86] S.I.L.R. 214. We have already referred to the way in which no direct proportion can always be kept between sentences for attempts and the complete offence because so much depends on the particular circumstances, and in this case we are satisfied a proper proportion has been kept. Had this been a conviction for a completed rape the sentence would undoubtedly have been greater, bearing in mind the aggravating feature referred to by the Chief Justice.

We are satisfied that it cannot be said these sentences are plainly excessive and the applications for leave are accordingly dismissed.