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R v Tova [2025] SBHC 124; HCSI-CRC 505 of 2024 (12 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 505 of 2024

REX

V

KRUSA TOVA

Date of Hearing: 7 July 2025
Date of Sentence: 12 May 2025

Mr Kelesi (DPP) for the Crown
Ms Asia for the Defendant

VERDICT AND SENTENCE

1. Mr. Krusa Tova, is charged with 3 counts of rape contrary to Section 136F (1) (a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual offences) Act 2016 (No. 3 of 2016), hereafter referred to as “the 2016 Act”.
2. I arraigned Mr. Tova on 5/05/2025, whereat he entered guilty pleas to the 3 counts. I adjourned to 7/5/2025 for sentencing and mitigation submissions.
3. The charge of rape is a serious offence for it carries a maximum penalty of life imprisonment. What’s even more serious is the multiple offending in here on 12 years old, grade 3 primary student and the subsequent pregnancy. However, the Court has the power to impose a lesser sentence term.

Count 1 – first Incident

4. The incident occurred at night in a room where the complainant and her cousin brother slept. The complainant was already fast asleep when the defendant entered the room and began caressing her breast. He then removed her clothes, spread her legs using both hands and forced his erected penis into her vagina. He continued his sexual motion, until he ejaculated inside her vagina. Complainant felt pain as the defendant forcefully penetrated her vagina being in a state of drunkenness.

Count 2 – second incident

5. Another incident occurred inside the bedroom shared by the defendant and his wife (complainant’s aunt). The aunt was away preparing fish at the market (esky). The complainant was inside the room. The defendant entered the room, went to the complainant, removed the complainant’s clothes and instructed her to lie down on the bed. He then kissed her and spread her legs before inserting his penis into her vagina. He had sexual intercourse with her and ejaculated inside her vagina. The complainant felt pain during the incident, but was unable to resist due to fear of the defendant.

Count 3 – third incident

6. The third incident occurred one afternoon when the complainant returned from school. The aunt was away preparing their esky to sell fish, while her young son Frank was playing with the other children. When the complainant arrived, the defendant was sitting at the veranda of their house. Upon the arrival of the complainant, the defendant took her hand and led her into the room. Inside, he began to hold her breast and kissed her. He then removed her clothes, laid her down, spread her legs and inserted his penis into her vagina. He continued his sexual motion and ejaculated inside her vagina. Complainant also experienced pain but did not resist due to fear of the defendant.
7. All 3 incidents occurred between 1^st January 2023 to 31^st December 2023. In the year 2023, the complainant’s mother received a call from her sister (defendant’s wife) inviting her to come down to Noro from Malaita. The mother arrived in Noro and noticed something unusual about her daughter prompting her to question her daughter. Her daughter revealed that she was made pregnant, by her uncle (the defendant).

Normal start point sentence

8. The complainant was 12 years old when the defendant raped her in the year 2023. According to Sinatau, Court of Appeal 2023, the start point sentence for unlawful sexual intercourse with a female child under 15 years in a non-contested matter is 8 years. Defense conceded.

Departure from start point sentence and reasons

9. However, I can depart from the starting point sentence and give reasons on the basis of Soni v Reginam [2013] SBCA 6 and Pana v Reginam [2013] SBCA 19. This matter involves a very young girl of 12 years old attending grade 3 at primary school. Her education was cut short. The defendant made her pregnant, a permanent life’s regret and hardship that she will endure for the rest of her life (psychological harm will impact her permanently). She was forced to become a single mother without help from a father. The other pertinent reason I see fit to depart is that this is the worst kind of trust betrayal. The innocent young girl was brought over from her family on Malaita to come and reside with her aunt and uncle prior to the year 2021 (the defendant is the husband of her aunt) at Noro. This migration involves a lot of trust from the complainant’s family. Without that trust, the complainant would not have left her family and homeland on Malaita. Instead of taking extra care to look after the innocent young girl from all harm, the defendant betrayed that trust, turned onto the young girl and treated her as his second wife, for sexual gratification purposes. For these reasons I will depart from 8 years and start at 12 years.

Sentence for count 1

10. Then I determine the following serious aggravating factors for count 1: -
    • (i) Breach of position of trust – This is the first and the worst aggravating factor against you. You are the victim’s father in custom (uncle). You have a moral duty to protect your own daughter (niece) 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 the parties have been sexually violated, meaning 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 duty we cherish in custom, deeply rooted in blood relationship and kinship ties. The defendant is the uncle of the complainant being married to her aunt. The complainant’s family trusted him to look after their daughter and allowed her to migrate from Malaita to Noro, Western Province. The defendant betrayed that trust.
    • (ii) Disparity of age – Tova was 35 years old, while Hilda was 12 years old at the time of rape in 2023. The age gap here is 23 years. As an adult and as the uncle, Tova was expected and accountable to protect Hilda from this type of offending (Ramaia case).
    • (iii) Young age of the victim – Hilda was 12 years of age in 2023, 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 12 years your niece was a teenager. She was considered a very young child/girl in terms of her sexual intactness, purity, virginity and dignity, all of which are highly treasured for young girls under 15 or 18 years. Furthermore, Hilda 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 replace them with nudity, and sexual violence that is traumatic and forever will be instilled in their memories with adverse lasting effects on their mentality.
    • (iv) Pre-planning - Sexual abuse that happens to a daughter (niece) in the home under the care and custody of her father (uncle) must be pre-planned because this is something that is seriously wrong and should not be happening in the home. Therefore, the father to be doing this unusual thing in the home needs some kind of prior thoughts, pre-planning and careful execution of plans on the part of the accused. Accused cannot say it was a coincidence.
    • (v) 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, Tova exerted his strength and control over the weak and vulnerable Hilda when he used Hilda as his sex tool in his own house. The defendant exploited her vulnerable and weaker gender to achieve his sexual desires. The weak cannot fight back or resist or refuse. The strong will exploit that weakness to exert control and power to achieve his will over the weaker gender, as it happened to Hilda inside the defendant’s home.
    • (vi) Physical harm and injury – The defendant raped his 12 years old victim through penial sexual intercourse on 3 separate occasions. It is hard to imagine how a small girl of 12 years old could subsist sexual abuse such as rape. An adult like Tova to have penial sexual intercourse with a 12 years old female victim would undoubtedly cause serious vaginal injury. There is no doubt her virginity and sexual purity were crushed. 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). Agreed facts showed that on each occasion of the 3 penial sexual intercourse, the complainant experienced pain.
    • (vii) Psychological harm and trauma - In terms of trauma and psychological harm, 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).
    • (viii) Abuse committed in the home – Hilda Goulo was inside the comfort of her home at her aunt and uncle’s house at Noro. Inside that very home she was entitled to protection, care and safety from her uncle and aunt. Instead, her father/uncle, turned that safety net in the home into a crime scene for his daughter/niece.
    • (ix) Disrupted education - Education is the key to the future well-being of a child. If that is true and I know it is, then Hilda Goulo’s life and a future for her was cut short. She quit school at grade 3, primary school, due to this problem. This is an aggravating factor against Tova. And he knew it, that he destroyed the key to the future well-being of his own daughter/niece.
    • (x) Subsequent pregnancy – Pregnancy and giving birth to a baby is an aggravating factor against the offender for the offender knew he was responsible for the pregnancy (Justice Kabui in Nanai v Regina [2005] SBHC 74; HCSI-CRC 324 of 2004 (21 June 2005). Complainant’s life was changed forever in a negative way because she became pregnant at a very early stage of her life against her will. She will raise a child without support from a father.
    • (xi) Drunkenness - In incident 1, the defendant was drunk when he raped Hilda at night in the bedroom. If he was sober, he would have thought rationally about his actions and the consequences of his deeds and probably refrain.
    • (xii) At night – First incident happened at night under cover of darkness in the bedroom when no one was looking (everyone was sleeping). He used the cover of darkness in the room/house to hide his evil deeds so that no one in his family will know what he was doing to the innocent and vulnerable grade 3 primary student.
11. This is a case where the aggravating factors far outweigh the mitigating factors. For all of the above 12 serious aggravating factors combined, I will uplift the start point sentence by 12 more years (1 year for each aggravating factor). Increases for serious aggravation should be made in years and not merely in weeks and months (Bade, Court of Appeal 2023). That brings me to the total head sentence of 24 years before mitigation.
12. Then I determine the following mitigating factors to slash the aggravated head sentence down wards: -
    • (i) First time offender with no previous conviction - 1-year reduction.
    • (ii) Early guilty plea - Defendant pleaded guilty at the eve of trial. Learned DPP submit that this is not an early guilty plea. However, it can still be considered an early guilty plea because the victim is spared the trauma, she would have faced recalling her painful experiences in the witness box. For the Court it saves trial time. And it shows remorse and repentance on the part of the defendant. I will deduct 30 percent (Pige, Court of Appeal 2023). That comes to 6.6 years rounded to 7 years.
    • (iii) Rehabilitation – Defendant is still young and can learn and rehabilitate and come out to be a better person - 1 year.
    • (iv) Compensation – A worthy custom and must be recognized as such by the courts - 1 year.
    • (v) Cooperation with police – 1 year.
13. The total head sentence after mitigation is 13 years. I will impose 13 years imprisonment for Count 1. I add 12 years aggravation to the start point of 12 years and it comes to 24 years head sentence to be reduced by 11 years for mitigation resulting in a final head sentence of 13 years.

Sentence for count 2

14. For count 2, I will have 10 serious aggravating factors only because drunk and at night in count 1 do not apply in count 2. Having the same start point sentence as in count 1, the aggravated head sentence before mitigation for count 2 is 23 years. This is because I add 1 more year as an additional serious aggravating factor for repetitive offending, which was not present in count 1. The total aggravating factors for count 2 will be 11 years. I add 11 aggravated years to the start point of 12 years and it comes to 23 years aggravated head sentence for count 2.
15. Then I also impose the same mitigating factors in count 1 for court 2, to reduce the aggravated head sentence downwards, after mitigation. That gives me 12 years head sentence for count 2. I give 12 years imprisonment for count 2.

Sentence for count 3

16. And for count 3, the same 11 serious aggravating factors for count 2 (repetition included minus drunkenness and at night) will apply again for count 3. The aggravated head sentence will be 25 years before mitigation. This is because I add 2 more years for the repetitive offending aggravation in count 3. That means there is 13 years aggravated head sentence. I add 13 years to the 12 years start point and it will come to 25 years aggravated head sentence before mitigation. The final head sentence after mitigation is 14 years because I take away the same 11 years mitigation in Counts 1 and 2. For Count 3 I will impose 14 years imprisonment term. I add 2 more years sentence here for repetitive offending, noting that in many cases, the fact an offence is repeated on the same victim is a matter of considerable aggravation, which should properly and understandably increase the sentence for the subsequent offence (Abana v R [2024] SBCA 10; SICOA-CRAC of 2023 (31 May 2024)). The final head sentence for Count 3 is 14 years imprisonment.
    • Concurrent sentence justified
17. I will make the sentences for counts 1 and 2 to run concurrent with the sentence for count 3, meaning the defendant will serve 14 years imprisonment. This case involves a series of sexual assaults committed on the same person even though spread over a period of time in the year 2023 (single transaction test in Laui v DPP [1987]. It is my considered view that a person who committed more crimes should receive a hefty punishment than a person who commits one crime only. Additionally, this is a crime that is at the higher end of the scale due to pregnancy and its aftermath impacts, trust betrayal and repetitive offending on a school girl at grade 3, primary school, whose life and education were cut short. The gravity of the offending justifies a hefty sentence.

Final orders and Conclusions

18. The final head sentence I will impose is 14 years imprisonment, subject to deductions for pre-trial detention entitlement, as determined by Gizo Correctional Centre. Sexual offences against women and girls are on the rise in Solomon Islands. The increasing prevalence of this kind of sexual offending in our society calls for deterrent sentences.
19. This Court has a duty to see that sentences it imposed 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 meet with severe punishments.
20. 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 the multiple offending is life imprisonment and the gravity of these multiple offending is at the higher end of the scale (repeat paragraph 16). This sentence reflects the gravity of the offences and accords well with Parliament’s legislative intent to protect women and girls from sexual abuse under the 2016 Act.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE