HIGH COURT OF SOLOMON ISLANDS
(Faukona, J)

Criminal Case No. 194 of 2007

REGINA

V

SELWYN PETER SISIOLO

Date of Hearing: 10th May 2010 and 21st June 2010
Date of Sentence: 30th June, 2010

For the Crown: Ms Taeburi and Mr. Coates
For the Accused: Ms McSpedden and Mr. Ifuto'o

SENTENCE

Faukona J: The accused Selwyn Peter Sisiolo was charged for four offences of rape contrary to sections 136 and 137 of the Penal Code. On 10th May 2010, upon arraignment, the accused pleaded guilty to all the four charges, therefore convicted accordingly.

The Facts:

1.	The accused is originally from Sasamuga village in the Choiseul Province. In July 2006 he went to Buala Station. At Buala he portrayed himself as a custom doctor and healer.

2.	He claimed he could cure illness and predict the future. The rumours spread out through Buala Station. The two victims heard it and proceeded to see the accused for custom healing.

3.	First incident relate to count 2 rape.

4.	On 1st July 2006 the accused met Nester Korihi, the first victim. Nester had been suffering from illness believed to have been caused by witch craft spell. Her family and relatives attempted on several occasion to cure her illness by custom medicines but were unsuccessful. On this date Nester's grandmother brought the accused to their family house to perform custom healing on Nester. He was given a room to occupy in the house.

5.	On the first meeting the accused warned Nester that she must comply with what he tells her to do. He warned her that if she disobeys she will be cursed. He then prayed over Nester. The accused spent the night there.

6.	At 2am the next day the accused woke Nester up and told her to go to his room. Whilst there alone, the accused asked her if she had sex before which she admitted. He then told her that they will have sex and this was for her good.

7.	Due to earlier threat by the accused about the curse, Nester took off her clothes and lay on a bed. The accused then lay on top of her and had sexual intercourse with her. She felt pain in her lower stomach and told the accused to stop which he did.

8.	Second incident relates to count 3 rape.

9.	On 4th July 2006, between 9pm and 10pm the accused met Nester again at her grand mother's house. The accused told her to go to his room. They were alone. The accused told her he will have sex with her again. He told her that sexual intercourse was the only way to cure her from her illness. He also told her that her illness was diagnosed in her abdomen and sex is the only cure.

10.	She took off her clothes and lied on the bed facing upwards. He got on top of her and had sexual intercourse with her. She felt pain and told him to get out of her. He stopped and got out. He told her that she will be cured and warned her not to tell anyone about what had happened.

11.	Third incident relates to count 1 rape.

12.	On 2nd July 2006 the second victim Phylisca Fate met the accused. The victim at that time was working for Save the Children at Buala. She consulted the accused purposely to predict her future in terms of her education and carrier. They arranged to meet at Teiraru's house on 4th July 2006.

13.	On 4th July 2006 about 12:30am, they met and were alone in the room. The victim told him of her need and the accused said he will help her. The accused told her that God had communicated to him that at 1.30am he will help her, and instructed the victim that she must comply with the instructions in order to fulfill what she desired.

14.	The accused then predicted the victim's future that she is a bright girl and that she will go overseas. He also said that in three months time, she will vacate her job and will go further study overseas. He told her that her boyfriend will never forget her. Only death will part them.

15.	The accused told the victim to go back and returned at 1.30am. She did not go back for sleep as she was eager to receive the holy water the accused promised her.

16.	Whilst waiting for 1.30am, the accused told Phylisca that no one can communicate with God directly except him. He said he could move mountains to the sea. He told her that he had assisted two girls in the past. These girls went overseas and when they returned they came and thanked him. Phylisca really believed the accused at that time.

17.	As the time approached 1.30am the accused opened the Bible to the verse which says, "That whosoever eat and drink of the water of life will never thirst again".

18.	After that both put their hands on the Bible and the accused prayed. Toward end of the pray he mentioned if Phylisca tells any body she will die.

19.	The accused then instructed Phylisca to remove her clothes and turn off the light which she did. He told her to sit on his penis. Again she complied. However his penis could not fully penetrate into her vagina because it was not fully erected.

20.	The accused told her to hold his penis and push it into her vagina, but still his penis could not fully penetrate.

21.	He then instructed her to lie down. He got on top of her and had sex with her. Not long after he got up. She felt blood oozing out of her vagina. She was a virgin and had just finished her menstruation.

22.	The accused gave her water to rub onto her vagina and drink it which she did.

23.	Fourth incident relates to count 4 rape.

24.	On 7th July 2006, the accused met Nester again and ordered her to go into his room. When they were alone the accused told Nester to have sex with her again. He said this will be the final part of the treatment.

25.	She took off her clothes and lay on a bed. He got on top of her and had sex with her. He did not ejaculate so he withdrew.

26.	The accused then told Nester to pull up her shirt and he sucked her breasts. After that she left the room.

27.	After all the custom treatments had been performed Nester Korihi continued to experience the same illness. She therefore reported the matter to Police.

28.	The second victim Phylisca Fate later heard that the accused had served time in prison for similar behaviour in the past. She realized that she was tricked to have sex with the accused. She then reported the matter to Police.

Case for the Crown

29.	The Crown submits that the four acts of rape were committed on two complainants. One is Phylisca who was 21 years at that time. The other is Nester who was 16 years of age, and which the accused committed three acts of rape on her.

30.	In each case consent for sexual intercourse was obtained by false representation and threat.

31.	The accused claimed himself as custom healer who knows custom treatment for ills that befall people by magical spells that cause people to get sick by the act of bewitchment by others. And at the same time can treat ordinary sicknesses. In addition he could also predict the future of a person.

32.	In Phylisca's case the accused used the bible, prayer and religious water as instruments of custom process, including sexual intercourse as part of the custom practice of healing. Having induced by those, the complainant agreed to the act of sexual intercourse; convinced that participating in it is part of custom healing process. Therefore believed the accused that she will succeed in her future carrier. The accused also threatened her that if she tells anyone about them having sex she will die.

33.	For Nester consent for sexual intercourse was obtained by false representation and threat. She was induced that if she refused to have sexual intercourse with the accused, she will be cursed and not be cured and healed. Nester believed on the assurance she will be cured and healed by having sexual intercourse with the accused. In fact she had never been cured of her illness after these sexual events.

The defence Case

34.	The accused Counsel submits that the accused had served his imprisonment term in his previous conviction on 15/6/1998. He is now 55 years and imprisonment for longer period will have far severe crashing effect on him than a man of a young age.

35.	The counsel also submits that this is not rape accompanied by act of violence. Rather it is a breach of trust. Crown cannot refer to several acts of false representation and threat or violence at the same time and use it as an additional to aggravation.

36.	The appropriate sentence to impose in the circumstance of this case should be concurrent. Consider the offences which were committed within the span of seven days, and consideration must be had to the principle of totality of sentence.

Aggravating features

37.	There are number of aggravating features submitted by the Crown.

38.	The offending involved multiple complainants. Miss Nester is the victim of three separate acts of rape, whilst Miss Phylisca is the victim of one act of rape. These incidents occurred within a span of seven days.

39.	The accused manipulated the complainants with false representation and threat to complete the sexual intercourse. He presented to the complainants that sexual intercourse was part of the custom healing process and the only answer to their needs.

40.	There is great disparity in the age. The accused was 51 or 52 years old at the time of offending. Nester was 16 years whilst Phylisca was 22 years and virgin before the accused raped her.

41.	There was significant breach of trust with the victims placing themselves in a vulnerable position to the accused who took advantage of their desire to be healed and abuse that trust.

42.	The accused is a recidivist offender who has previously committed same serious offences and has demonstrated that he has little prospect of rehabilitation. The two previous offences were related to the use of his custom medicine power.

43.	The offending is indeed aggravated by those aggravating features. However the accused counsel contended that the crown cannot refer to several acts of false representation, threat and violence at the same time and use it as additional to aggravation. It may be true in normal sense, because Section 136 of the Penal Code which defines rape used the preposition "or" to segregate each action whereby which consents can be obtained. Clear from the submissions the crown accepts that no physical violence was used. The fact that the accused used the word curse to Nester and death to Phylisca if they refused to comply with his instructions. That is clear threat without physical violence. Words of such nature amount to threat are powerful when used to induce a person to comply. I accept that the accused made false representation and threat to both victims to have sexual intercourse with him which is aggravated in features.

Is the offending premeditated. 

44.	It would appear that the offending in this case was premeditated. The accused had prepared in advance by gathering two Bibles, Communion bread, a candle stick, a bottle containing oil and two other containers, see Exhibit 21. Similarly the Bible verse the accused read to Miss Phylisca on the night of 4th July 2006, was the same verse the accused read to his victim in his previous case at Naha in 1996, See R v Sisiolo.

Mitigating factors

45.	The accused is now 55 years of age. There is no evidence in regards to his personal background and marital status.

46.	He pleads guilty to the offences following arraignment on 10th May 2010. There is argument by the counsels as to whether the court should give full benefit for plea of guilty. As far as this court is concerned the accused entered a plea of guilty to all the charges when he was arraigned on 10th May 2010. The accused counsel argued that the accused pleaded guilty after the charges were amended. The crown is correct to say that it was open to the accused to enter a plea of guilty at any stage of the proceedings. Pleading guilty after arraignment in my view, is the rightful moment so for as the criminal proceedings are concerned. Though he may not hinted earlier, it is not necessary to require attendance of witnesses. In fact it did save resources, expenses and time. I therefore adopted the guideline in Gerea v R which relates:

"A defendant who has pleaded guilty may be granted some reduction in what would otherwise have been the proper sentence for the offence".

47.	Guilty plea always attracts some discount and I'm prepared to do so.

Specific and General deterrence

48.	The sentence to impose on the accused taking into account the specific deterrence which is considered as relevant in this case. The reason being that the accused had convicted previously on two charges of rape on 15th June 1998, of which he was goaled for 6 years. After serving his imprisonment term, he was goaled again for another related offence on 9th June 2009. That demonstrated he has little prospect of rehabilitation. Therefore specific deterrence is necessary in the circumstance of this case and must be reflected in the sentence itself.

49.	On the same token general deterrence is also relevant to send the message clear and precise to other likeminded persons who abuse the trust placed in them as custom healers.

Hardship and Crashing Sentence 

50.	The accused counsel submits that the impact of a substantial sentence will have a crashing effect on the accused who is now at an old age, and will render the sentence inappropriate.

51.	Any length of imprisonment term will always cause hardship to the accused and very close relatives and family. These hardships are not unique and peculiar to him. It has always been said that those hardships are the consequences he should thought about before planning to offend. It would also mean that he has to face any prescribed penalty by our laws, and hardships that follow any incarceration. 

52.	Having said that I have considered the case of Togovi -v- Regina in regards to crashing sentence on an elderly man.

53.	The crashing effect likely to be encountered by the accused must be balanced against the seriousness of the offence, the exploitation and abuse of the victims who place their trust on him, and to ensuring those who commit such offence must expect a custodial sentence.

Treating women with custom medicine

54.	My local understanding, as a Solomon Islander, related to treating of female patients, by custom medicine healers, derived from the conservative and well respected perception that females acquired their status in Solomon Island society with respect and dignity. No man is allowed to touch the body of another women or girl. One can do so to his own wife. In healing circumstances, where rubbing and massaging is necessary that has to be administered by a relative female. It never involve any male custom medicine healer to touch any sensitive part of a woman or her private part or have sex with her under the pretext that it is a necessary requirement in custom medicine healing process. That is totally false representation.

Normal method used in treatment of female patients is drinking a prepared solution from a cup. This treatment method is common to both man and woman in Solomon Islands.

Comparative Sentence

55.	Crown counsel has submitted a number of relevant authorities as a guide. The first case refers to is Tahinao v Regina. Accused was sentenced following a trial. He was charged for rape and indecent assault on multiple complainants. He served 3 years for rape and 2 years for indecent assault, a cumulative total of 5 years imprisonment.

56.	The second case is Tebounapa v Regina, the accused was charged for indecent assault and rape committed on separate victims. 6 years imprisonment was imposed and confirmed by Solomon Islands Court of Appeal.

57.	Public Prosecution v Pakoa. The Supreme Court of Vanuatu sentence the offender with no previous conviction for two offences of rape during the course of a purported custom medicine treatment. The offences were committed on separate victims. A total of 8 years, 2 months and 23 days were served consecutively.

Appropriate Sentence

58.	I have reminded myself of the guidelines set down in Regina v Ligiau and Dori which has been adopted as general authority so far as sexual offences are concerned. On page 2 it says:

"Rape is an extremely serious offence. It is an offence of violence based on the selfish disregard of the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long lasting harm to the victim".

59.	In that case CJ Ward adopted the views of Lord Lane in R v Billam as to the appropriate penalty and consideration for an offence of rape. The guidelines to follow are summed up in four paragraphs. The starting point relevant to this case is paragraph 1 which states;

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case".

This case is not contested, in fact the accused pleaded guilty. As such consideration for paragraph 4 should be of further assistance. The paragraph states:

"The crime should in any event be treated as aggravated by and on the following factors … (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous conviction for rape. Where any one or more of these aggravating features are present the sentence should substantially higher than the suggested as the starting point."

60.	This case has all the aggravated features as listed above. They are picked for relevant purposes; however, the list goes on. The starting point in this case considering those guidelines, and the fact that the accused had served 6 years imprisonment previously for rape, in my view should be 6 years imprisonment.

61. To decide on the actual sentence it is obligatory to take into consideration all the aggravating features, the effect of the sexual acts upon the victims who have to strive to forget the shame and frustration, and the harm to their personal dignity which will linger for a long time.

62. On behalf of the accused, I have not forgotten his age which is now 55 years, and the fact he pleads guilty as soon as the original charges were amended. That indeed, although there is no oral expression of remorse and regret, but it spared the victims from testifying and reliving the experience. It also saves court time and costs for the state. He deserves some reduction. See Gerea v Regina. 

Whether Sentence to run Concurrent or Consecutive

63. Arguments in relation to this issue are quite brief. However, the Crown refer me to the case of Fa'afunua v Regina where the Chief Justice considers the relevant law as to the totality principle. The accused counsel also concluded that the court should adopt the principle of totality of sentence.

64. I have read Fa'afunera's case and the consideration by Chief Justice of the relevant laws related to totality principle. I am guided by a number of authorities he cited.

65. The background of this case is that the accused had raped the first victim Nester on three occasions on 1st July 2006, on 4th July 2006 and on 7th July 2006. The second victim was raped once, on 4th July 2006, four or five hours after the accused raped the first victim. The offending was done within seven days.

66. In R v Griffiths the Court said:

"….. In sentencing a person with multiple offences regard must be had to the total effects of the sentence on the offender … This may be done through the imposition of consecutive sentences of reduced length or with or without other sentences to be served concurrently, or through imposition of a sentence appropriate to the total criminality with all other sentences to be served concurrently."

In R v Williams the court observe that cumulative sentences can be imposed on offences committed years a part, and it is necessary to consider whether the total term which a prisoner may serve under the sentences is excessive. The court also point out that the cumulative effect of such sentence may have extremely onerous effect on the offender.

67. The totality principle has been applied in this jurisdiction and reflected in the case of Stanley Bade v Regina. The relevant paragraph is quoted at page 125.

"….. The second occasion for modifying the general rule arises where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. Thus, once the Court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal sentence appropriate to the most serious offence for which the accused is being sentenced, the total should be reduced to a level that is just and appropriate to use the test suggested in Smith v R (1972) Crim. LR 124. Equally if the total sentence, although not affecting that test, would still in the particular circumstance of the person being sentenced, be a crashing penalty, the court also consider a reduction of the total. Having decided the proper penalty for each individual offence but feeling the total is too high, it is better to achieve a reduction by making some or all current rather than to reduce the length of the individual sentence whilst leaving them consecutive. The former results in sentences that still reflect the gravity of each individuals charge."

68. In this case acts of rape were done to one victim on three different dates, whilst the fourth act was done to the second victim on the same date as first victim that was on 4th July 2006. It would appear that the acts of rape did not occur in a single transaction incident. They occurred differently and on 4th July 2006 there was a span of about four or five hours between the two acts of rape on both victims. It is quite difficult to arrive at a figure most appropriate. However, taken into account the previous sentence of six years and the aggravating features of this case, in my view must commence as I have suggested at 6 years which is appropriate in the circumstances of this case.

69. The question is which counts ought to be concurrent or which counts to be consecutive. If I should resort to consecutive sentence then I should reduce the individual sentence below the above appropriate level of a starting point for each offence. Where it appears to be too great having considered the above appropriate level for each offence, then of course I should reduce the total term of imprisonment by making some or all the sentences concurrent and not reducing the individual sentence below appropriate level; see Augustine Laui v DPP.

70. Having considered what should be the appropriate sentence in this case, taking into account all the aggravating and mitigating features, and the law in relation to the totality principle, the sentences should, in my view run concurrent.

71. Having convicted the accused on all counts a sentence of 8 years imprisonment for each count is appropriate. All sentence to run concurrent. This sentence reflects the accused is a risk to the community. He never learn from his past mistake. If he is approached leniently he will continue on with his activities.

Orders

1. 8 years imprisonment for each count.

2. All sentences to run concurrent.

3. A total of 8 years imprisonment is hereby imposed.

4. 2 months, 3 days the accused spent in custody be deducted from 8 years.

THE COURT