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Regina v Koroua - Sentence [2012] SBHC 37; HCSI-CRC 492 of 2010 (1 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

BEN KOROUA

Date of hearing: 30th April 2012.
Date of Judgment: 1st May 2012.

Mr. Kelesi for the Crown.
Ms Spence for the accused.

SENTENCE

1. You have been convicted of raping Mrs. Petrina Tuaina ("victim") at Sokupu village at Sikaiana Island on the 6th July 2007.
   
2. Rape is a very serious offence which carries a maximum sentence of life imprisonment. However, the law says that the maximum sentence is reserved only for the worst kind of cases. Your case is not of the worst kind, however, there are aggravating features present in your case which I must take into account when determining the appropriate sentence to impose on you.
   
3. The first is that you have taken advantage of the fact that the victim's husband was away in Honiara while the victim was living by herself with her children. The second is that you have committed the offence while under the influence of alcohol. Being drunk is not a mitigating factor when it comes to sentencing. It is an aggravating factor.
   
4. Third is that you have committed the offence to satisfy your own sexual desires in total disregard for the victim's dignity and self respect. The victim was a married woman. A married woman's body is for her husband only. You were single at the time of the offence and you knew that the victim was a married woman. You have displayed a no care attitude and showed no respect either the victim or for her husband and children.
   
5. Finally, Solomon Island custom requires respect for women, especially married women. Where a married woman has been defiled as you have done here, custom demands that compensation must be paid to the victim and her family. There is no evidence that you have paid any form of customary compensation to the victim or her family in accordance with customary law.
   
6. Fortunately, the victim had sustained no injuries and that is a mitigating factor in your favour. Other mitigating factors in your favour which I have taken into account include the fact that you are a first offender; you are now married and expecting your first child; you have old parents to care for; you have used no weapon in committing the offence and have applied no excessive force towards the victim. Those are factors in your favour.
   
7. I have also considered penalties imposed by this court in respect of past rape cases. These penalties ranged from 3 to 8 years. However, each case was judged according to its own merits.
   
8. The starting point when considering the appropriate sentence to impose in rape cases is that as stated by Lord Lane in R v Billam[1] ("Bilam") and adopted by Ward CJ, in R v Ligiau & Dori[2] ("Ligiau").
   
9. The starting point is that, for rape committed by adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case. Where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years. The crime should be treated as aggravated where any of the following factors are present: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the figure should be substantially higher than the figure suggested as the starting point.
   
10. In Ligiau, the accused Ligiau was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment. In the same case, Dori was convicted of attempted rape of a 10 year old victim and sentenced to 5 years imprisonment. In these two cases, the accuseds have pleaded guilty to the charges and both were first offenders.
    
11. In R v Gere[3], the accused was found guilty after trial and sentenced to 3 years for raping his step-daughter who was then 16 years old. The accused had threatened the victim with a bush knife in order to force the victim to submit. He was a first offender.
    
12. In R v Auwahau[4], the accused was convicted on a plea of guilty to a charge of rape and sentenced to 4 ½ years imprisonment. The force used was not one which could be regarded as beyond that which is normally used in rape cases. He was also a first offender.
    
13. In R v Nickson[5], the accused was found guilty after trial of one count of rape and sentenced to 6 ½ years imprisonment. The victim was 15 years old at the time of the offence and had suffered injury to her vagina as a result of the sexual act committed on her. The accused was a first offender.
    
14. In R v Alualu & Bakeloa[6], the accuseds were each found guilty after trial of raping a 15 year old girl and sentenced to 3 years imprisonment each.
    
15. In R v Dausina[7], the accused pleaded guilty to one count of raping his 16 year old daughter. He was sentenced to 3 ½ years imprisonment.
    
16. In R v Sisiolo[8], the accused was charged with 4 counts of rape, 3 counts relating to the same victim and 1 count in relation to a different victim with all the offences having been committed on 1st, 4th and 7th July 2006. He pleaded guilty to all the 4 counts. The accused had previous convictions in relation to the same offence. He was sentenced to 8 years for each count to be served concurrently.
    
17. In R v Maenisoa[9], the accused was charged with 4 counts of raping his own daughter. He pleaded guilty to all the 4 counts and was sentenced to 3 years for each of the 4 charges. He was a first offender.
    
18. The present case was a contested case. You were found guilty after trial. However, this does not mean that I will take into account your not guilty plea. In law you are entitled to have the prosecution prove their case against you and by pleading not guilty, you are simply saying to the prosecution "please prove your case against me" and the fact that you have been found guilty after trial is relevant only when considering the starting point in your sentence and in accordance with the principle in Bilam, the starting point here must be 5 years imprisonment.
    
19. However, having regard to the aggravating features of your case and the mitigating factors in your favour as well as the range of sentences imposed in previous similar cases, I am of the opinion that, in this case, a sentence of 2 years imprisonment is appropriate in the circumstances.
    
20. I therefore sentence you to 2 years imprisonment. The time you have already spent in custody while on remand and after conviction on 23rd April 2012 shall be taken into account in calculating this 2 year period.
    

THE COURT

^[1] (1986) 1 WLR 349
^[2] [1985-1986] SILR 214
^[3] [1981] SILR 145
^[4] CRC 18 of 1993
^[5] CRC 328 of 2006
^[6] [2005] SBHC 106
^[7] CRC 7 of 2007
^[8] CRC 194 of 2007
^[9] CRC 82 of 2010