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R v Popohe [2021] SBHC 58; HCSI-CRC 160 of 2021 (19 July 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 160 of 2021

REGINA

V

ALFRED POPOHE

Date of Hearing: 9 July 2021
Date of Decision: 19 July 2021

Mrs. Dalcy Belapitu Oligari for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. Alfred Popohe is charged with one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the information, the defendant had entered a guilty plea. He was convicted accordingly.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment.

The facts

3. The facts of your case are as follows:

You are from Halavo Village, Big Gella, Central Islands Province. The complainant is from Voloa Village, Big Gella, Central Islands Province. You were 19 years old at the time of offending and the complainant was 15 years old. She was in Grade 5 at Leitongo Primary School and she was living with her sister Grace Vivian at Halavo Village.
On Sunday the 6^th December 2020, you met the complainant after Church and asked her if you could meet with her that night. The complainant told you to come by her house. You went to the complainant’s house and called out for her. The complainant came out and asked you what you wanted.
You then told the complainant to follow you to the kitchen. You got hold of her hand and dragged her to the kitchen. In the kitchen, the complainant tried to get away but you stood in the doorway preventing her to leave. You grabbed the complainant, pushed her down on top of a timber and lie on top of the complainant. You pulled her skirt up and had sexual intercourse with her by pushing your penis into her vagina. After that, you stood aside and the complainant got up and left. The matter was reported to the police and you were arrested and placed in custody on the 8^th December 2020.

Case law

4. Having stated the facts in your case, I am now required to consider the appropriate sentence that I will impose against you for your offending. In order for me to do that, I must take note of the aggravating features and the mitigating features in your case.
5. The starting point in this case is to take note of and to consider the principles used by the court in the case of R v Ligiau and Dori [1986)] SBHC 15, (1985-1986) SILR 214. In that case, His Lordship Ward CJ adopted the views of Lord Lane in the case of R v Billam [1986] 1 WLR 349. Lord Lane stated that in rape cases, there should be three starting points. The first starting point is a term of 5 years imprisonment in a case where rape is committed by an adult and no aggravating feature is present. The second starting point was one of 8 years imprisonment. That starting point applies where rape is committed by two or more men, the man has broken into where the victim was living, the person was in a position of responsibility towards the victim or the person who abducts and holds the victim captive. The third starting point is one of 15 years imprisonment. It relates to what could be termed as a campaign of rape, committing the crime upon a number of different women or girls.
6. In the case of R v Rivoqani [2018] SBHC 87, the Court made reference to the case of R v Roberts and Roberts where the English Court of Appeal per Lord Lane CJ had also set out sentencing guidelines in rape cases. He stated inter alia that a custodial sentence is necessary in rape cases for a number of reasons. He continued to say and I quote “First of all to mark the gravity of the offence. Secondly to emphasise the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender and last, but by no means least to protect women”.

Aggravating features

7. With the above guidelines, I now turn to consider the aggravating features in your case. It is submitted by Mrs. Oligari of counsel for the crown that the age disparity between and the complainant is an aggravating feature against you. At the time of offending you were 19 years old and the complainant was 15 years. The age disparity was one of 4 years.
8. It was further submitted by the crown that another aggravating feature was you committed the crime at night time. From the agreed facts, you went to the complainant’s house at night time and called her out from her house. You committed the offending upon cover of darkness.
9. Another aggravating feature in your case is that you used some force on the complainant when you dragged and pulled her to the kitchen. You have also restrained the complainant from leaving the kitchen by blocking the doorway. I have noted that what you did to the complainant have caused her stress and trauma.

Mitigating features

10. On your behalf it was submitted by Mr. Kwalai of counsel that you are a very young person. You were 19 years old at the time of offending. You are now 20 years old.
11. Your early guilty plea is a mitigating factor in this case. The 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 action. Your guilty also saves courts time and resources in conducting a trial into the case. It also saves the complainant further stress and trauma in coming to court to recite her past experiences. I give you credit for the early guilty plea.
12. I have also taken note of the fact that you are a first offender without any past criminal record. I commend you for living a crime free life for the most part of your life.
13. You have co-operated with the police during investigation. I have noted that you have admitted this offending even at the Magistrate Court. I commend you for being honest about what you did. Please learn from your mistake and try not to reoffend in future.
14. You are a youthful offender. You could have committed the offending due to your youthfulness. As you are a very young offender, I sincerely hope that you would be able to rehabilitate yourself. Because of your youthfulness, I would be inclined to give you a second chance in life.
15. I have also noted that you have been remanded in custody for a period of 7 months and eleven days. The court will take into account that period in custody whilst sentencing you.

Conclusion

16. Whatever the circumstances are in your case, you must be punished for what you did to the complainant. The punishment that the court shall impose on you will show to you the gravity of the offence and the public disapproval of your action. It also serves as a warning to others when you are punished for this crime because these laws are enacted for the protection of women and girls from abusive men like yourself.
17. In the case of R v Ligiau and Dori cited above, after having considered the principles in the Billam case had put the starting point as one of five years.
18. In the case of Regina v Manisonia [2017] SBHC 107, SIHC-CRC 241 of 2017, chief Justice Palmer had stated that the starting point in a non-contested case, where a guilty plea has been entered would be 3-4 years. The defendant in that case was sentenced to 4 years imprisonment.
19. Having considered the above circumstances in your case and having noted the sentencing guidelines and principles cited, and taking into account your early guilty plea and your youthfulness, I hereby sentence you to 3 ½ years imprisonment. I further direct that 1 ½ years of that sentence is suspended for two years on good behaviour.

Orders of the court

1. The defendant is convicted on one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 3 ½ years imprisonment.
3. I direct that 1 ½ years of the imprisonment term be suspended for a period of 2 years on a good behaviour bond.
4. Time spend in pre-trial custody is to be deducted from total sentence.
5. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge