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Tahinao v Regina [2006] SBHC 58; HCSI-CRC 369 of 2004 (13 February 2006)

HIGH COURT OF SOLMON ISLANDS

Criminal Case No. 369 of 2004.

JOSIAH TAHINAO

V.

REGINA.

(KABUI, J.).

Date of Hearing: 31st January 2006.
Date of Sentence: 13th February 2006.

R. Iomea for the Crown.
M. Swift for the Prisoner.

SENTENCE

KABUI J: I convicted you on 12th December 2005 of indecently assaulting three women and then raping one of them on separate occasions in their houses at Mbokonavera in Honiara in September, 2003. It is now my duty to sentence you for those offences you committed.

You first indecently assaulted Linda twice in the presence of her husband in their house. You committed the assaults with her consent and that of her husband. The consent by them was obtained by you because you were a custom doctor and you pretended you would cure Linda of her sickness by inserting your fingers inside her vagina several times. You brought with you coconut oil and you used water to lubricate your fingers.

You were of course invited by Linda and her husband. You had not however imposed yourself on them in the first place. That is, there was no touting on your part. You may well say that they asked for it. That is however not the point in the case against you.

The point is that you tricked them into accepting the indecent assaults on Linda as the effective cure of her sickness, knowing that was not true. To indecently assault a woman in the presence of her husband with their consent is most unusual indeed except upon trickery as you did. What you did was both morally and legally wrong. Society frowns upon it and does not accept it. You know it yourself. You of course are aware of the Christian principles about morality.

I do accept that you are of good character. You are married and in that regard, have some responsibility in family life. You had undoubtedly made a mistake in your life. I accept that as no one is perfect in this world. However, you had broken the law by committing the offences for which you must be punished.

Linda and her husband are adult persons and should have known better. Human nature is one of self-preservation of life in terms of keeping healthy and for this reason seeking cure for sickness of the body. Belief in magical spells in our society and ordinary sickness often cause people to seek cure outside of hospitals. Custom medicine therefore plays a role in that environment. However, custom medicine practice must not be abused in the same way modern medicine must not be abused by medical practitioners.

I have considered carefully what punishment I should impose on you for indecently assaulting Linda on two occasions. The maximum punishment for indecent assault is imprisonment for five years. This means that the sentencing range available to me is that I can impose any custodial sentence up to but not beyond imprisonment for five years. I consider that the sentence that I should impose on you is one of imprisonment for twelve months for count four and imprisonment for another twelve months for count five. These sentences are to run concurrently.

You also indecently assaulted Angela and Agnes who are sisters. Like in the case of Linda, they consented to you inserting your fingers into the vagina as the treatment for their respective sickness. Angela’s husband had no objection to you treating his wife and his sister-in-law, Agnes. They gave their consent because you told them that you would cure them. Like Linda, they trusted you and believed that you would cure them. I will also sentence you to imprisonment for twelve months for count one and twelve imprisonment for count two. Again, these sentences are to run concurrently.

Lastly, you raped Agnes on another date after you had indecently assaulted her. You committed a very serious offence, carrying the maximum penalty of imprisonment for life. The force you used against the resistance by Agnes was minimal but effective in the circumstances. That is, after succeeding in persuading Agnes to lie down, you inserted your fingers into her vagina. That was what you called the last treatment for Agnes. It was then that you raped her by telling her that you wanted to have sex with her and proceeded to execute your intention against her consent. You lost your head and in so doing you did not realize that you generated so much motion that the house began to rock, thus attracting the attention of Angela that she saw you through the window to the room in which you were raping Agnes.

You did not cause any physical injuries to Agnes nor did Agnes become pregnant as a result of the rape. Nevertheless, it was rape because Agnes did not consent to you having sexual intercourse with her.

You more or less over-powered her resistance because she was lying on the floor and you were bending over her and eventually on top of her. Her resistance would have had no effect because you are big in terms of size and weight and because were you pressing her down she would not have had the power to push you off her and escape. You on your part, would have reached a point of no return and simply bent on completing the act despite her resistance.

You used no threats against Agnes nor did you intimidate her nor behaved in any manner so as to create fear in her mind although you had said to her by implication that you possessed magical powers. You were her custom doctor and she trusted you although she was rather apprehensive about your method of treatment before you both went into the room for treatment. You however used enough downwards force to keep her down on the floor for enough time to penetrate her without her consent. For that, I sentence you to imprisonment for three years for count three.

Should the concurrent sentences for counts one, two, four and five be made concurrent or consecutive?

You committed the indecent assaults on Linda before you did the same to Angela and Agnes on different dates. The question is whether the concurrent sentences of twelve months each should be made further concurrent or be made consecutive. They can be only concurrent on the basis that you committed the indecent assaults within a short period of time so that the four incidents of that offence can be regarded as a series of offence forming one transaction. I do not think that is the case here. You committed the same offence but on different victims and different dates. I will make the two concurrent sentences of imprisonment for twelve months each, consecutive. This means that in respect of the offence of indecent assaults, you will serve two years imprisonment.

Then there is the question whether or not I should make the consecutive sentence of two years imprisonment for indecent assaults concurrent with the three years imprisonment for rape. Whilst it is the case that you raped Agnes, the same victim of your previous indecent assault, the offence you committed was rape. It is a separate offence. I consider that this is a case where I should make the sentences for indecent assaults and for rape consecutive. This means that your total time in prison will be five years imprisonment. Your time in prison commenced on 12th December 2005, the day you went into custody, following your conviction.

The orders of the Court are -

1. Twelve months imprisonment each for counts one and two, both sentences to run concurrently; the effective sentence is twelve months imprisonment.
   
2. Twelve months imprisonment each for counts four and five, both sentences to run concurrently; the effective sentence is twelve months imprisonment.
   
3. One and two above are to be consecutive; the effective sentence is twenty-four months (2 years) imprisonment.
   
4. Three years imprisonment for count three to be consecutive with 3 above, making a total sentence of five years imprisonment in all.
   

F.O.Kabui, J.