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R v Salesa [2010] TVHC 1; Criminal Case 01 of 2009 (24 May 2010)

In The High Court of Tuvalu
At Funafuti

Criminal Jurisdiction
HC Crim. Case no. 1/09

Between:

R

v

Filoitama Salesa
Defendant

24 May 2010

Sentence

You have been convicted of an extremely serious offence. Rape is a degrading violation of another individual which frequently leaves the victim with lasting emotional and, sometimes, even physical, consequences far greater than in almost any other offence.

The victim in this case appears to some extent to have overcome some of the emotional pain she undoubtedly felt. I hope that is the case but, if it is, it is no way thanks to you.

Instead of showing remorse for this act, you pleaded not guilty and, in that way, ensured she would have to recount and possibly relive the events of that night. Rather than accept your responsibility for your own conduct that night, you made allegations which can only be seen as intended to cast her in the worst possible light and in that way perpetuate the trauma she has already suffered.

The courts will not hesitate to reflect the public disapproval of such conduct by imposing substantial sentences. The legislature has measured the seriousness of this offence by providing a maximum sentence of life imprisonment. This is not so serious that it requires such a penalty.

I accept the guidelines set out in the English case of R v Billam which has been adopted in many other jurisdictions. I do not accept this offence has become more common in Tuvalu recently and I do not, therefore, accept the need, demonstrated in such jurisdictions as Fiji and, more recently, New Zealand, to increase the starting point. The Billam case fixes the starting point for any rape case at five years imprisonment. That starting point may be reduced by any factors which mitigate the actions of the offender and will be increased by any aggravating factors.

The fact you used minimal physical violence, your youth and your previous good character all mitigate the penalty. I accept you initially co-operated with police although you later denied it with the result that your victim had to give evidence. The additional trauma to a victim of rape of having to repeat such an experience in a public court is so great that any plea of guilty will result in a substantial reduction of sentence. Your late denial has prevented any mitigation of your sentence on that account.

On the other hand, the offence is aggravated by your lies to the court, the element of abduction and the abuse of her trust in you which allowed you to take her away from the care her aunt. You also showed a total lack of concern for your victim after you had finished your rape by inviting another man to do the same and simply walking away and leaving her there. Those factors require me to increase the starting point from five years.

The minimum sentence I can properly order is one of seven years imprisonment.