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R v Limainihalo [2024] SBHC 192; HCSI-CRC 396 of 2015 (9 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 396 of 2015

REX

V

ROBERT POSOA LIMAINIHALO

Date of Sentence: 9 December 2014

Manu O R for the Crown
Kwalai for Defence

Sentence

1. You, Robert Posoa Limainihalo was convicted by the court on one count of rape under the section 136 of the Penal Code and offence was committed in 2013.
2. You pleaded not guilty on the charge and a trail was contacted last year 2023 in your case. When the judgment was ready for delivery you did not appear to the court. A warrant of arrest was issued for you were found and brought over to Honiara by Police Staby boat.

Brief Facts

3. The accused Robert Posoa Limainihalo was 65 years old and victim Lydia Joana Garoni was 17 years old. In 2013 the Defendant showed his balls and penis to the victim and he wanted to have sexual intercourse her. The victim refused but the defendant showed to her the money and he had sex with her without her consent. The victim is also the defendant’s niece.
4. Defendant pushed and held down the victim on the ground and he pulled down her trousers. The victim tried to resist the defendant but he was stronger to her and then he pushed his penis into her vagina until he ejaculated.
5. For the age disparity, you defendant was 65 years oldat the time of the offence and your niece Lydia Joana Garoni was 17 years old, a difference of 48 years.
6. At this time and when you are convicted of this charge of rape and now ready for sentence, you are about 76 years old.

Starting Point

7. Crown counsel submits that the Court of Appeal in the recent case of Bade v R^[1] has overruled the starting point set in the case of Ligiau and others, and the Court of Appeal has set a new guideline. The new guideline is for contested case, the starting point should be eight years’ imprisonment and for guilty plea, the staring is six years’ imprisonment.
8. Counsel Kwalai for the defence in his submission stated that it is the requirement in this jurisdiction that judges have the discretion when it come to sentencing starting point and if the judge want to depart from the guidelines set by the Court of Appeal, he should give the reasons.

Counsel referred to the recent case on Court of Appeal in Victorina v Rex^[2]

• “The effect of the guidelines is that they assist the judges in fixing a starting point. The guidelines are not to be seen as rigid in the sense of taking aware the role of the judges in assessing the criminality involved, however if a judge is to depart from the guidelines it is incumbent on the judge to set out the reasons for departing from what this Court considers is an appropriate starting point”.

In the case of Soni v Regina^[3]

• “13. Where the sentencing judge feels constrained to depart from established guidelines he or she is entitled to do so if the circumstances of the case warrant such a departure. In that instance, it is simply necessary for the sentencing judge to give reasons for the departure from those guidelines. That, in the High Court, may well be considered preferable to purporting to change guidelines that have been approved by the Court of Appeal”.

9. I noted the submission by the Crown counsel and ruling of the Bade v R case, however it is my view that the court can depart from the recent guideline on the following reasons:
   • (a) This incident occurred in 2013 and the accused was charge under the section 136 of the Penal Code (old law)
   • (b) It was well-before the Penal Code (Amendment (Sexual offences) Act 2016,
   • (c) The offender Bade was not yet convicted and sentenced by the High Court and new guideline was not yet set by the Court of Appeal.
   • (d) The age and the health and circumstances of the accused which I will highlight later in the sentence.
   • (e) From the record of proceedings and documents in the case file, the cause of delay for bringing the accused to the court should blame to all i.e. the Police, Crown prosecution, accused and defence and even the court.
10. To ensure that the justice is done to the accused it is my view that the sentence should be base with the laws and sentence principles appropriate at the time of the offence. The fact is that the offence was committed in 2013 and with reasons stated above I agree the starting point should be as in R v Ligiau and Dori^[4] and it is five years’ imprisonment.
11. You are charged with the rape offence or sexual intercourse with a female without her consent and it is serious offence as is manifested in the maximum penalty or shall be liable to imprisonment for life.
12. I noted the submissions on the sentence by the Crown and the defence counsels.
13. For the mitigating factors, the offender has no previous conviction except that he is an old man and already walking with stick.
14. The aggravating factors are:
    • (a) Age disparity
    • The victim was 17 years of age and you were 67 years old at the time of offending, an age difference with you and the victim of 48 years.
    • At your age and she is your niece, you should be responsible for the actions and conduct of the victim. However, your act by enticing to the victim with sexual relationship is an offence.
    • (b) Abuse of trust
    • Victim is your niece and in our culture, it is common to call uncle and or treat him as your father and you should responsible for her on all things. However, you decided to abuse that trust with your act of sexual intercourse with your niece.
15. I note the likely or cause fear or afraid and Psychological harm that may occurred to the victim.
16. After discussed the aggravating and mitigating features in your case above, I remind myself that beside the role the court to interpret the law, it is also the duty to safeguard and protect the females and in particular the young female population in our communities from such abuse, cruel and sexual attitudes of our male population, the courts also play its part to protect female population when imposing the sentence on the sexual offenders.
17. This case very serious as the maximum penalty is life imprisonment, the maximum reserved for the worst. I have noted that this type of offending is prevalent in our communities and in your island of Gella in the Central Province, this type of case relate to sex has become common and frequent at the court. It is also very prevalent in our communities in Solomon Islands.
18. As an uncle to the victim and being a mature person and you are in a position of trust but you have abused the trust that is expected from you or placed upon you.
19. Taking into account mitigation and the fact him old and walk with the stick, aggravating features, the seriousness of the offence and the prevailing occurrences in our communities in Solomon Islands, the sentence must be with the deterrence aspect to deter others who intend to commit such an offence.
20. I impose a sentence of 5 years imprisonment on the accused.

ORDERS OF THE COURT

(i) The accused Robert Posoa Limainihalo sentence of 5 years imprisonment.
(ii) Any period spent in remand in custody be deducted from the total sentence.

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

^[1] [2023] SBCA 39, SICOA - CRAC 9017 of 2013 (13 October 2023)
^[2] SICOA 9042 of 2023, 29 May 2024
^[3] Paragraph 13 SBCA 6; Criminal Appeal case 27, 28, 35, of 2012 (26 April 2013)
^[4] [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)