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R v Tata [2021] SBHC 151; HCSI-CRC 07 of 2020 (1 November 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 7 of 2020

REGINA

V

LIVINGSTONE JOHN TATA AND WILLIAM JUNIOR JOHN

Date of Hearing: 22 & 26 October 2021
Date of Decision: 1 November 2021

Ms Olutimayin and Ms Letiara Pellie for the Crown
Mr Ben Alasia and Mr Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. On the 9^th October 2020, the Director of Public Prosecution had filed information against William Junior John, Livingstone John Tata and Luke Kakamo for the offence of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (amendment) (Sexual Offences) Act 2016. All of the defendants pleaded not guilty to that charge.
2. On the 24^th September 2021, the DPP filed amended information whereby the defendant Mr. Livingstone John Tata was indicted with the offence of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Mr. Tata has pleaded guilty to rape and he was convicted accordingly. The maximum sentence codified under our laws for that offence is one of life imprisonment.
3. The defendant Mr. William John Junior was indicted with one count of indecent act contrary to section 138 (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of simple larceny contrary to section 258 (1) (2) of the Penal Code (cap 26). Mr. Junior had pleaded guilty to both offences and he was also convicted as charged. The maximum sentence for indecent act is one of 5 years imprisonment and for the offence of simple larceny the general punishment for that offence is an imprisonment of 5 years under section 261 of the Penal Code.
4. The facts of the case against the both of you are similar. On Friday the 28^th September 2018, the complainant planned with her ex-boyfriend to travel from Honiara to GPPOL 2. They planned to spend time together and went inside a house in the bush. Their plan did not go well because the woman of the house chased her with a knife. She ran away from the house into the plantation and the woman continued to pursue her. She managed to disarm the woman and continued to run until she got to a red store at GPPOL 1 bridge. She saw a group of boys drinking at the red store. She was crying and they asked her what was wrong. She told them her story and they invited her to stay with them.

From the group of boys, she noticed that 3 boys were not drunk and she got into conversation with them. The drunken boys decided to go and buy more beers. She continued discussing with the 3 boys. The 3 boys asked her if she wanted to sleep and she said yes. They told her they will take her to their sister’s house to sleep. William Junior John led her to his lodge and they were joined by Livingstone John Tata and Luke Kakamo. From the lodge you all went and sat underneath William Junior John’s grandfather’s house. Whilst you were under the house William Junior John touched the complainant’s breast without her consent. John Livingstone Tata then pushed the complainant down, took out her tight trousers, skirt and pants and opened her legs and pushed his fingers inside her vagina. Whilst the complainant was struggling to get away from John Livingstone Tata, William John Junior grabbed her phone and three hundred dollars from her pocket and left the scene. Afterwards, John Livingstone Tata got off from her and ran away.
The complainant then wore her clothes and walked through the plantation to find a water source. She found herself back to the big house and sat underneath the house when Arnold Vathagi saw her and she told him that Livingstone raped her. She walked from that house to the main road and to a river where she met Hilda Loe. Hilda helped her and housed her. In the afternoon of the following day, Hilda Loe took her to a bus station, paid for her bus fare where she went to Kukum Police Station and reported the matter. She was taken to Henderson Police Station and she was taken to the hospital for medical check-up on the same day.

5. After having stated the facts in your case, I have to discuss and take into account the aggravating and the mitigating features in your offending. Before going on to discuss the aggravating features in your case, I wish to state that all forms of sexual assault cases are becoming very prevalent in our various communities all over the country and the courts are very concerned. A clear message must therefore be brought out to the offenders and would-be offenders that the courts frown at such offending. The courts do not condone and will not tolerate such behaviour and attitudes towards children, girls and women.
6. Having echoed the above sentiments, it is submitted by the prosecution that there are several aggravating features in your case. The first aggravating feature highlighted against you is that you have both taken advantage of the complainant’s vulnerability as a weaker gender. The complainant was fleeing from an armed and angry woman. She came to you and sought refuge and consolation. You have turned around and sexually molested her and Mr. William Junior John had stolen from her.
7. It is further submitted by the prosecution, that you have tricked the complainant when you told her that you would take her to your sister’s house to sleep. She was merely taken to William John John’s lodge where you both started to disturb her. She was later sexually molested by both of you under a big house in the village.
8. It is submitted that the fact that the offending was committed at about 2.00am is another aggravating feature against you. At that time of the night, most good minded are people already asleep. You might be some of the very few people that were still awake then. You knew the complainant’s story as to why she had ended up at your village. Instead of assisting her, you used the cover of darkness to molest her and stole from her.
9. It is also submitted by the prosecution that even though the complainant was of the weaker gender, you have with each other’s company molested the complainant. You should be ashamed of what you did to her. Instead of trying to restrain the other from committing the offences, each of you have actively participated in the commission of the offences on the complainant. It is also an aggravating feature that the $300.00 belonging to the complainant was never recovered.
10. On behalf of Mr. Tata, it was submitted by Mr. Alasia of counsel that you have pleaded guilty to the charge against you. Even though, the guilty plea was not made at the earliest opportunity, the court gives you credit for your guilty plea. The guilty plea shows you are remorseful and you are willing to face the consequences of your action. Your guilty plea has also saved the courts time and resources into conducting a trial into your case. You have also saved the complainant further stress and trauma in having to come to court to give evidence in a contested trial.
11. I am told you are a first offender without any criminal history. You are also a young offender. You were 19 years at the time of offending and you are single. You are now about 22 years old.
12. I have also heard that a reconciliation ceremony was held between your family and the complainant’s family. Your family have paid compensation by way of chupu to settle the animosity caused by you between the two families. The value of the chupu is in issue but peace has been brought back to the two communities through the custom reconciliation. The ceremony is a sign that you are sorry for your actions.
13. I am told that you have been remanded in pre-trial custody for a period of 20 months and 26 days. I am also told that the delay in the finalisation of your case does not bear much on the prosecution but on the process of the criminal justice system. I have also noted that you have abscond bail once and a warrant of arrest was issued against you.
14. On behalf of Mr. William Junior, it was submitted by Mr. Waroka of counsel that you have pleaded guilty to the offending. Even though the guilty plea was not made at the earliest opportunity, you are still entitled to be given credit for that. Your guilty plea not only shows remorse on your part but that you have owned up to your offending and you are willing to face the consequences of your actions. You guilty plea had also saved the courts time and resources into conducting a trial into your case. You have also saved the complainant the agony and stress in coming to court and give evidence in a contested trial.
15. I have been told that you have no previous conviction and that you were a person of previous good character. You are now 21 years old and a young offender. It is also submitted that the complainant’s phone was recovered and was given back to her. You have been in remand in pre-trial custody for 2 years, 2 months and 26 days. I have also noted your plea of mercy to the court and I have noted your other personal circumstances.
16. In the sentencing of offenders of a sexual nature, the court must be minded that matters personal to the offenders must have less effect on sentence than in most other serious cases. Those were the comments by Ward CJ in the case of R v Ligiau & Dori [1985-1986] SILR 214. That position was supported by Pallaras J in the case of R v Phoboro [2013] SBHC 8.
17. As earlier alluded to in this sentence, the court is distressed about the prevalence of all types of sexual offences in the country. Just about one week ago was the brutal murder of a very young child at Kolombangara Island in the Western Province. I cited with approval the sentiments of the court in the case of R v Bosamate whereby the court had stated, “That the sentencing process is a living organism. It grows, develops and adapts to community need and expectation. It may well be in current times it is appropriate for courts to re-access whether the relatively low sentencing ranges referred to would adequately reflect both the attitude of the legislature and the needs of the community”.
18. The courts in this country had set out guidelines in the sentencing of like offenders in the cases of R v Ligiau and Dori [1985-1986] SILR 214 and R v Niulifia and Greame Nickson, Court of Appeal, Solomon Islands, Unreported, 2005. In the Ligiau & Dori case, the court had adopted and used the guidelines set out by Lord Lane CJ in the case of R v Billam [1986] 1 WLR 149. That case outlined three starting points viz 5 years, 8 years and 15 years. Having regard to those principles, Ward CJ put a starting point of 5 years in a contested rape case committed by an adult.
19. Having regard to the principles discussed in the above cases, the sentences that the court will impose against you should be able to bring home that such offending as the ones you are both charged with are not tolerated by the courts. The court must punish you so that you may realise the severity of your action and why you should not behave in a similar fashion again. It will also bring home to like-minded offenders and would-be offenders that the courts will punish you if you commit any offences of a sexual nature against any child, any girl or any woman. All like-minded men are reminded that you have no right whatsoever to have sexual intercourse with any child, any girl or any woman without their consent. You shall be appropriately punished if you commit rape on any female person.
20. In this case, Mr. Tata is charged with the offence of rape. You have pushed your fingers into the complainant’s vagina and thereby committing the offence for which you are charged. Taking into account the guidelines set out in the Ligiau and Dori case, I will put your starting point at 3 years imprisonment. For the aggravating features in your case, I will increase that sentence by 18 months. For your guilty plea, your youthfulness and for making an attempt to sort out the issue in accordance with your custom, I reduce that sentence by 14 months. Mr. Tata, I hereby sentence you 3 years and 3 months imprisonment for the offence of rape. The time spent in pre-trial custody is to be deducted from your sentence.
21. Mr. William John Junior for the offences that you are charged with, the sentencing tariffs for the offence of indecent act is between 12 months to 24 months. See the case of R v Velomama [2020] SBHC 67, HCSI-CRC 321 of 2019 in which the defendant was sentenced to 2 years imprisonment for indecent act.
22. In the case R v Kaneta [2019] SBHC 52, HCSI-CRC 112 of 2018, the defendant was sentenced to 2 years imprisonment for indecent act and in the case of R v Tebitanga [2013] SBHC 24, the defendant was also sentenced to 2 years imprisonment for indecent act.
23. Having considered the above cases and having noted what you did to the complainant on the night of the incident, I hereby sentence you to 2 years imprisonment for the offence of indecent act against the complainant. I must take this time to remind you that it is against the law to indecently assault a female person by touching her body without her consent. Men must try and respect the dignity and the decency of women and girls of all walks of life. Women and girls are not your play toys.
24. For the offence of simple larceny, I have invited further submissions from counsel for the DPP and the defence on this charge. Ms. Pellie has subsequently filed supplementary submission and I am grateful for those submissions. I am able to say that the charge under the definition section 258 (1) of the Penal Code is maintained. I have noted and adopted the views of Chief Justice Palmer in the case of R v Kemakeza [2008] SBHC 44, HCSI-CRC 478 of 2007. I have perused count 4 on the amended information filed on the 24^th September 2021, and I can say that the charge is well particularised and it is unlikely to cause prejudice or embarrassment on the defendant.
25. Having considered and determined the above issue, I now turn to the sentencing ranges for the offence of simple larceny. In the cases cited by both counsel for the prosecution and the defence, the sentencing ranges from an imprisonment term of 18 months to a suspended sentence.
26. In your case, you stole from the complainant $300.00. That amount of money was not recovered to this date. Taking into account the aggravating features in your offending and balancing it the mitigating factors including your early guilty plea, your youthfulness and the delay in the finalisation of your case, I hereby sentence you to 12 months imprisonment for the offence of simple larceny. The sentences in respect of counts 3 and 4 are to be served concurrently.
27. I have heard that you been remanded in custody for a period of 2 years, 2 months and 26 days. The court has sentenced you to 2 years imprisonment and 12 months imprisonment respectively for the offences that you are charged with. Those sentences are to be served concurrently. In view of the fact that you have already served the sentences in pre-trail custody, you are to be released at the rising of the court.

Orders of the court

1. The defendant Mr. John Livingstone Tata is convicted of one count of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (amendment) (Sexual Offences) Act 2016.
2. You are hereby sentenced to 3 years and 3 months imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the total sentence.
4. Consequently, the defendant is to be released at the rising of the court.
5. The defendant John William Junior is convicted of one count of indecent act contrary to section 138 (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of simple larceny contrary to section 258 (1) (2) of the Penal Code (cap 26).
6. You are hereby sentenced to 2 years imprisonment for the offence of indecent act.
7. You are sentenced to 12 months imprisonment for the offence of simple larceny.
8. The sentences in orders 6 and 7 are to be served concurrently.
9. Mr. William Junior John is to be released at the rising of the court.
10. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge