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R v Giliposi [2025] SBHC 123; HCSI-CRC 159 of 2024 (22 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 159 of 2024

REX

V

PETER GILIPOSI

Date of Hearing: 17 March 2025
Date of Sentence: 22 March 2025

Counsel; Ms Rehomora and Ms Cleven
Counsel; Mr Waroka for the Defendant

Keniapisia; PJ

VERDICT AND SENTENCE

1. Mr. Giliposi stands trial for one count of rape contrary to Section 136F(1) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. The particulars of offence alleged that Mr. Giliposi of Banepe village, Reef Islands, Temotu Province, between 1^st May 2019 and 30^th June 2019 had sexual intercourse with Rose Kanaum by inserting his penis into her vagina without her consent and knowing about or being reckless as to the lack of consent. This is a ruthless offence because the victim is the biological daughter of the accused, Mr. Giliposi.
2. I arraigned Mr. Giliposi on 14/3/2025, on the first day of the circuit to Lata. Mr. Giliposi entered a guilty plea. I adjourned the matter to 1:30 pm on 17/03/2025, for settlement of the facts, sentencing and mitigation submissions.
3. Rape is a serious offence as reflected in the maximum penalty sanctioned by the Parliament - life imprisonment. However, the Court has the power to impose a lesser sentence in its exercise of discretion.
4. I will set the start point sentence for your offence at 8 years because according to Rex v Sinatau, Court of Appeal 2023, the start point sentence for offences under Section 136 F and Section 139 of the 2016 Act is 8 years, in a non-contested matter for child victims under the age of consent. The female victim here was 15 years old at the material time of offending in 2019.
5. Defence counsel disagreed and submit that I should start at 6 years. The victim here was 15 years at the time of offending, unlike in Sinatau where the two victims were 10 years old. Defence contend that 10 years is under the age of consent and 15 years is not. Counsel continued that the age of consent is not defined in the 2016 Act. Child is only defined as a person under the age of 18 years. I agree with defence that the age of consent is not defined under the 2016 Act and in the case of Sinatau. It could be 13 years, 15 years or 18 years from the various provisions of the 2016 Act such as in Section 139 (1) (a) and (b) and Section 140 (2) (a) and (b). These two provisions mentioned the ages of a child as a person of 13 years, 15 years and 18 years.
6. Due to this uncertainty, I turn to the mischief rule approach to statutory interpretation. This rule focused on the purpose or “mischief” that the statute was intended to address and interprets the statute to ensure that the intended purpose is achieved. I want to re-iterate Aligao Court of Appeal 2024, where it highlights the mischief that the 2016 Act was enacted to address: -
   • “This court in Pana v R and Bade v R recognised and accepted the accuracy of the “Report of the Solomon Islands Law Reform Commission” published in June 2013, which found that there has been an “alarming level of sexual violence” in Solomon Islands and that there is a need to address the problem through legislation and increase penalties for such offending. The legislature has responded and enacted the Penal Code (Amendment) (Sexual Offences) Act 2016. Under that new amended law there is the unsung obligation on the courts to take very serious and stern views on the prevalence of sexual abuses, sexual offences and sexual violence in every and all parts of the communities in Solomon Islands.”
7. I have a solemn duty to take strong views on sexual abuses. The prevalent mischief in Solomon Islands in June 2013, which necessitates the 2016 Act, was sexual abuses, sexual offences and sexual violence. Who suffers the most from such offences? Women and girls suffered the most at the hands of their domestic male perpetrators, as in this case.
8. I have always held the view that the 2016 Act introduced new sexual abuse offences and increased the penalties. And that the 2016 reform was driven by the desire to protect women and girls from sexual abuse by their domestic male perpetrators. Taking the purposive approach to interpretation, I have always held the view that sexual abuses against girls under the ages of 15 years and 18 years must be seriously condemned.
9. Hence any sexual abuse offence under Sections 136F and 139 of the 2016 Act involving a female child victim under 13 years, 15 years or 18 years must be seriously condemned by having a higher start point sentence even in uncontested matters. The ages of consent in my considered view are 15 years and 18 years taking the mischief approach to interpretation. Hence, I always go with Sinatau and put the start point sentence at 8 years.
10. Then I determine the following serious aggravating factors: -
    • (i) Psychological harm and trauma – Court should always take judicial notice of the long-term impacts and trauma on the victim despite lack of professional and medical evidence (Bonuga, 2014 Court of Appeal). Despite lack of observable physical harm, in all rape or sexual offence cases, the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per Bonuga (Liufirara, Court of Appeal 2023). Your daughter has since left you or your family due to your ruthless act. She was helpless, right from the very beginning, on that night when you raped her. She was ashamed of what you did to her. She cried. The scars of deep regret will haunt her for the rest of her life. You intruded and destroyed her dignity, sexual purity and virginity. This is the worse and serious aggravating factor against you, because, what you did is inhuman and demeaning for your own daughter. You cold-bloodedly murdered the sexual life of your own daughter. I should give 5 years for this aggravating factor alone, if I separate it, but I am considering it along with the others.
    • (ii) Physical harm/injury – You raped your 15 years old virgin teenage daughter, on her bed, in her bedroom, in your house. That sounds ridiculous. She felt pain in her vagina and saw blood on the clothes she wore that night. Your penis was too big and strong for her vagina. There was undoubtedly a serious vaginal injury. There is no doubt that her vaginal virginity and sexual purity were crumpled. The very act of rape is physical violation of a victim and physical harm is inherent in it (R v Liufirara [2023] SBCA 10; SICOA-CRAC 30 OF 2022 (28 April 2023). You destroyed and defiled your own daughter’s sexual virginity, something that is morally and sexually treasured in every female daughter. This is another damning aggravating factor.
    • (iii) Age disparity – You were 46 years at time of offending in 2019 and your daughter victim was 15 years. There was a 31 years age gap. As an adult and as the father, you are expected and accountable to protect Rose Kanau from this type of offending (Ramaia case).
    • (iv) Breach of position of trust – This is another worse aggravating factor against you. You are the victim’s father. You have a moral duty to protect your own daughter from all forms of sexual abuse and defilement. Instead, you did the exact opposite to her due to your immoral sexual desires. That is a serious and regrettable inhuman breach of your moral duty as a father. In addition, family or blood ties between you, your wife and children have been sexually violated. This is a domestic violence issue and calls for serious aggravation. Violence that occurs within the domestic relationship, let alone sexual violence (abuse) must be condemned, for it is an abuse of the family as a unit, and must never go unpunished. We are a society that prides itself in worthy customs and cultures. It is our worthy custom to render love, care, respect and security to female relatives. It is a moral value and a duty we cherish in custom, deeply rooted in blood relationship and kinship ties.
    • (v) Young age – Rose was 15 years of age in 2019, when you raped her. According to Sinatau, Court of Appeal 2023 the age of the victim can be taken into account both in setting a starting point and when considering aggravating factors. The aggravating effect will usually be greater, the younger the child (victim). At 15 years your daughter was already a teenager. But she is still considered a very young child/girl in terms of her sexual intactness, purity, virginity, sanctity and dignity, all of which are highly virtuous or sexually treasured for young girls under 15 years or 18 years. Additionally, Rose is too young for her cerebral innocence to be taken away in such a manner. Your sexually abusive actions took away her right as a child to create long-lasting, safe and happy memories and instead replaced them with nudity, and sexual violence that is traumatic and will forever be instilled in her memories with adverse lasting effects on her mentality.
    • (vi) Comfort of the home at night – Rose was fast asleep inside the comfort of her room at night, where she should be sleeping and was entitled to security and safety from you as her father, in your house at Banepe village. Instead, you turned that safety net of the home into a crime scene for your own daughter.
    • (vii) Pre-planning – Sexual abuse that happens to a daughter in the home under the care and custody of her father must be pre-planned. This is something that is seriously wrong and should not be happening in the home. The father to be doing this unusual thing in the home needs some kind of prior thoughts, preplanning and careful execution of plans on the part of the accused. Accused cannot say it was a coincidence. Instead of planning something good for his daughter, he was planning to have sexual intercourse with her. He planned this because when his wife was away, he took that as a chance to execute his evil plans to rape his daughter.
    • (viii) Weak and vulnerable – A vulnerability is a weakness that can be exploited by an attacker. A male is stronger than a female, in terms of their gender composition. In this case Giliposi, the father exerted his strength and power over his weak and vulnerable daughter victim, when he went into her room at night and climbed on top of her and stopped her from shouting and had sexual intercourse with her. You exploited her vulnerable and weak gender to achieve your sexual desires because the weak cannot fight back.
11. For all of the above 8 serious aggravating factors combined, I will uplift the start point sentence by 14 more years (1.75 years rounded to 2 years for each aggravating factor). Increases due to serious aggravation should be made in years and not merely in weeks and months (Bade, Court of Appeal 2023). That will bring me to 22 years head sentence before mitigation.
12. The following mitigating factors will bring the head sentence downwards: -
    • (i) Guilty plea – I give 30% reduction which comes to 6.6 years rounded to 7 years. Guilty plea saves court’s valuable time. It saves the victim from the trauma of reciting her ordeal in the witness box and it shows you are remorseful. This is why I give a big reduction.
    • (ii) Time spent in custody – 3 years from July 2021 to September 2024, when you were kept in remand before your first conviction last September.
    • (iii) Rehabilitation – Going into Correction facility is meant to give you time to rehabilitate and to come out to be a useful and reformed person in society. I give 1 year.
    • (iv) Delay – There is unreasonable delay whatever the reason may have been since 2019. Delay is a breach of your fundamental constitutional right and so I will give 2 years.
13. The total head sentence is reduced down to 9 years after mitigation. This is a case where the aggravating factors far outweighs the mitigating factors. You are currently serving 8 years imprisonment for a previous conviction last year for the offence of persistent sexual abuse of your own nephew, Paul Ponagi, in the year 2021. This is a separate offence (rape) arising out of a different criminal transaction (rape of your own daughter at home), on a different victim or person (Rose Kanau) and at a different time (between May to June 2019). Hence, I will not make the 9 years sentence to run concurrently with your current sentence.
14. A lengthy imprisonment is justified to reflect the total seriousness, gravity and criminal offending here. Mr. Giliposi must be held separately accountable for his two crimes. So, I will make the 9 years head sentence to run consecutive with the 8 years final head sentence, you are currently serving. That means you will serve a cumulative sentence term of 17 years. I am of the considered view that a man who commits 2 offences should receive a heavier sentence than a man who commits only one of them.
15. However, as I stand back and look at the total cumulative sentence, it is apparently harsher on you in terms of the crushing effect and the totality principle and therefore is excessively high. In the circumstances, according to Aligao, Court of Appeal 2024, I must make discounts on the cumulative sentence, where it is “over oppressive and excessive”. After making discounts the total cumulative sentence I will impose is 12 years imprisonment. When you consider the gravity of the current offence (father on daughter) and the previous offence (uncle on nephew) both having life imprisonment as the maximum punishments, these 12 years sentence term is justified on the merits of your multiple serious offending.
16. This Court has a duty to see that the sentences it imposed on sexual abuse offenders gives out a powerful deterrent factor to prevent the commission of such offences. Offenders must receive harsher punishments to mark society’s outrage and denunciation against sexual abuse of women and girls. The main purpose of the punishment I give here is to condemn your action and to protect the public from the commission of such crimes by making it clear to you and others with similar impulses, that anyone who yields to this kind of crime will be met with severe punishments.
17. As I stand back and look at the circumstances of the case and ask whether the merit justify the sentence term imposed, I can say that it is a fair sentence term when you consider that the maximum penalty available for your multiple offending is life imprisonment and the gravity of the offence of rape is cruelly inhumane, when a father does this to his own daughter, destroying the very fabric of the family unit and the victim. This sentence will reflect the gravity of the offence and accords well with Parliament’s legislative intent to protect women and girls from sexual abuse by their domestic male perpetrators under the 2016 Act.
18. Mr. Giliposi, I convict you for the charge of rape premised on your guilty plea and the summary of agreed facts. I sentence you to 12 years imprisonment inclusive of your current sentence.

HE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE