HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)

Criminal Case No. 256 of 2008

REGINA

V

WILLIE FOA

Date of Hearing: 8th, 9th, 12th, 18th, and 19th February 2010
Date of Judgment/Sentence:	26th February 2010

Ms Christensen and Ms Kesaka for the Crown
Mr. Tovosia and Mr. Lauenagh for the Accused

JUDGMENT/SENTENCE

Mwanesalua, J: The accused here is Willie Foa. He pleaded guilty to one count of attempted rape and one count of indecent assault. The court entered guilty pleas on him on his own pleas and convicted him accordingly. He was originally charged with one count of rape but that was withdrawn when the crown could not prove penile penetration after the victim gave her evidence in chief before cross examination.

Facts: 	The accused is a serving Police Officer. He was at White River on 18th May 2008. While he was there he approached the victim, a girl aged between nine and ten years of age and gave her money to play a card game. He later called the victim away from her friends and had her go for a walk with him where he bought her twisties chips. Then the accused forced the victim to go with him up to "K Hill" where the offences occurred. On the way he held her hand and then picked her up and carried her when she resisted and refused to go on with him. She was crying. He told her to stop and said it was alright. When they arrived at an old roofless building structure, he removed the victim's clothes and forced her to sit on the concrete floor. He then laid her down on her back by her shoulders. He removed his clothes and touched her vagina. He licked it and then inserted his penis into her vagina. He could not achieve penetration as the vagina was still too small. He then inserted his smallest right finger into her vagina but it did not go "in too far". After he assaulted her, he held her hand, and they walked back to White River. For the mean time, her relatives were looking for her. He kissed her on the mouth and left her to return to her relatives and onetalks. A doctor examined the victim at 1 am on 19th May after the assaults. The report shows that her genitals were markedly swollen and bruised. Bruised marks were present at the top of her thighs. Her hymen was ruptured and bruised, with some oozing of blood. In an interview with the police, he denied having sexual intercourse with the victim but admitted to digitally penetrating her vagina. His explanation for this action was, "he wanted to find out if she had sex with other people or not".

Relative authorities on attempted rape:	This offence carries a maximum penalty of 7 years imprisonment in this jurisdiction. In R v. Ligiau and Dori [1985 – 1986] SILR 214, one of the accuseds pleaded guilty and convicted for attempted rape of a very young girl aged 10 years and 4 months. His Lordship Ward CJ passed a sentence of 5 years. He found that the only reason why the offence of rape did not occur was because of the age of the victim and that the accused could not achieve full penetration. His Lordship went on to say in relation to the offence of attempted rape and 1 quote; "The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence"; In Koraua and Kaitira v Reginam both accused were charged with rape but convicted of attempted rape as there was doubt on whether full penetration occurred in relation to the medical report. A sentence of four years was passed on Koraua and three and half years on Kaitira. On appeal the court of appeal dismissed the appeal and held: "(1) the accounts given in evidence as to the exact course of events were confused but there was evidence that two persons were involved and they acted to some degree in concert. Each by his presence, and by acting as he did gave support to the other. This aggravated the seriousness of the offence committed by each. (2) Generally an attempt is to be punished with lesser sentence than that for the completed offence but there may be some circumstances in which an attempt will be more severely punished than a complete rape in other circumstances. (3) There may be circumstances when an attempt is almost as serious as the complete rape would be. The present case is an example based on the Chief Justice's findings. This was not an attempt that was half-hearted or one in which conscience or remorse caused the appellants to draw back. The reason for the conviction for attempt rather than complete rape was the doubt left in the mind of the Chief Justice by the medical evidence. (4) No direct proportion can always be kept between sentences for attempts and the complete offence because so much depends on the particular circumstances. A proper proportion had been kept in this case and had this been a conviction for a complete rape the sentence would have been greater because of the aggravating feature", In R v. Williams (1987) 9 Cr. App. R. (s) 491, per Mars-Jones and Turner JJ, the Appellant pleaded guilty to attempted rape. He was sentenced to six years imprisonment by the trial judge. But on appeal their Lordships reduced the sentence to four years imprisonment because they found no aggravating features in the case.

Mitigation:	In deciding the proper sentence to be imposed on the accused, the court takes the following mitigating factors in his favour. That he is of previous good character and a first offender. That he pleaded guilty to his offences when the original rape charge was withdrawn and replaced with the present offences. He is given credit for doing so as it has saved further time and expense of continuing the trial. That as a man of good character, under going his first prison sentences, the convictisms and sentences are in themselves substantial punishments. In Vinson [1982] Crim LR. 192, the Court of Appeal per Lord Lane CJ and Skinner J, reduced a sentence of two years imprisonment to three months where the offender pleaded guilty to two counts of indecent assault for two reasons. First, sufficient credit had not been given for the guilty plea, and secondly, "for a man of good character undergoing his first prison sentence, conviction and a prison sentence are in themselves a substantial punishment". (See also Lewis (1980) 2CR. App.R. (S) 62). That the accused lost his career as a Police Officer. He told the Court that his offending was due to his drunkenness. The court does not take that as a mitigating factor (see paton (1982) Crim LR 58). Drunkenness has been described as an aggravating factor (see Lindley (1980) 2 cr. App. R (s), Bradley (1980) 2 cr. App. R (s) 12) and R v. Raga [2005] SBHC 69. The court bears in mind that religions programmes are run to help prisoners in the prison. It hope that the accused will take part in them as a way of rehabilitation.

General hardship to family. The court has been informed that the accused is married with two young children. They would lose his support during his term in imprison. The normal hardship caused to a wife or family as a result of the offender's imprisonment are not mitigating factors except in exception circumstances. The court must still consider and pass appropriate sentences in this case. In R v Lux (unreported, NSW CCA, 26 August 1988) Roden J said: "It is unfortunate in the extreme when people with heavy family responsibilities put the welfare of those who depend upon them at risk by involving themselves in criminal conduct which has the potential to produce prison sentences. When that natural consequence flows, in my view it is inappropriate to seek to put the burden-and almost indeed to put the blame-upon the courts.

The comment has often been made that despite that sympathy and compassion to which I have referred, the courts cannot, by their sentencing decisions, create a class of people who are immune from the normal consequences of their criminal conduct". In R v Tilley (1991) 53 A Crim R 1 (Qld CA) Thomas J said (at 4): "An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to the temptation". However illness on the part of a wife or children requiring the husband's assistance may operate as mitigating factors (see summers (1979) 1 cr. App. R (s) 13). This is one example of an exceptional circumstance which the court would take as a mitigating factor.

Sentence:	First, the accused has been convicted of attempted rape. The victim's hymen was bruised and ruptured. She felt pain in her vagina when he tried to penetrate her with his penis in the first instance. The accused could not achieve penetration and so he desisted. That saved the victim from sustaining very serious harm. There are, however, aggravating features in this case. There was age disparity. The accused was twenty-seven years while the victim was aged between nine and ten years old at the date of offending. The second is that the accused was not only in a position of trust but as a serving police officer a position of authority. Having considered the mitigating factors given in favour of the accused, with these aggravating features the minimum sentence which can be imposed on the accused for attempted rape is three years imprisonment. Secondly, the accused penetrated the vagina of the victim with his small finger to a certain extent, having found that penile penetration was impossible due to the age of the victim. Whatever the degree of the digital penetration may be, her hymen was ruptured and bruised. Indecent assault carries a maximum sentence of five years imprisonment. His digital penetration of the victim has caused her serious injuries. The aggravating factors mentioned in relation to attempted rape also apply to this count of indecent assault. The minimum sentence which can be imposed for indecent assault is also three years imprisonment. The sentences are to be served concurrently as they were part of the same transaction. The accused has spent time in remand. The court has not been provided with the actual number of those days. The days which the accused had been remanded after his arrest are therefore to be deducted from his total term of three years imprisonment. The parties have been reminded about their right of appeal, should any of them disagree with the sentences imposed.

Order accordingly.

THE COURT