IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

ROJER SORO

Date of Hearing: 27 June 2011
Date of Judgment: 29 June 2011

Mrs. N. Kesaka for the Crown
Ms. L. McSpedden and Mr. W. Ghemu for the accused

SENTENCE

Apaniai, PJ:

1.	The accused, Rojer Soro, was charged with 1 count of rape. He pleaded guilty to the charge and was accordingly convicted.

2.	The following facts are not disputed:-

1)	The accused and the victim are from Rirogala village, Savo Island, Central Islands Province. They are distant relatives.

2)	The victim was about 12 years and 3 months old at the time the offence was committed upon her on 4th February 2010. 

3)	On 4th February 2010, between 5 and 6pm, the victim was cooking breadfruit in her parent's kitchen when the accused came and told her that her father wanted her to get some cabbage from their garden.

4)	The victim told the accused that her father had already brought cabbage for them the previous day. She refused to follow the accused's instructions. The accused then told her that if she did not go, her father would whip her.

5)	The victim did not want her father to whip her so she took a small knife and went to the garden as instructed by the accused. The accused also went to the garden.

6)	The accused picked some egg plants and called out to the victim to come and get the egg plants. The victim came to the accused.

7)	The accused then grabbed the victim and placed his hands over her mouth and neck. The accused dragged the victim to the nearby bush and lay on top of her. The victim shouted and cried but the accused did not stop. Instead he dragged her to another location in the bush. Further struggle ensued during which the victim's hand was injured by a knife which, it is agreed, the victim brought with her to the garden but which somehow came into the possession of the accused. The accused then forcefully had sex with the victim. The sexual act had resulted in physical injuries to the victim's vagina which became swollen and inflamed. Her mouth and the areas around the mouth as well as her ribs had also received injuries. She experienced pain when opening her mouth. All these injuries were confirmed by a report by Dr. Benjamin Koke.

8)	The incidence was then reported to the police who arrested the accused on 9th February 2010 and placed him in custody. An interview was conducted with the accused but the accused refused to answer the questions put to him by the police. The accused has been in custody since 9th February 2010.

3.	Counsel for the accused conceded that there are aggravating features present in this case. These include the age of the victim, the difference in physical strength between the accused and the victim, the force used by the accused and the injuries sustained by the victim.

4.	However, counsel says that the mitigating factors of the case outweigh the aggravating factors. These mitigating factors include the guilty plea, the remorse shown by the accused, the fact that the accused is undergoing religious teachings while in custody and the accused's past clean record.

5.	Counsel for the accused also submits that the offence was impulsive and opportunistic and was not a planned or premeditated act. Counsel submits that while a custodial sentence is inevitable, a sentence of three years to three and a half years would be appropriate in the circumstances. Sentences passed in various rape cases in the past have been referred to in support of the submission.

6.	Counsel for the prosecution, while accepting that there are mitigating factors which can be taken into account, says however that such factors must not outweigh the seriousness of the offence. She says that any sentence imposed must have a deterrent effect.

7.	I have taken into account the submissions of counsel and I am grateful to counsel for their submission.

8.	I need not repeat what has always been said about the seriousness of the offence of rape, and other sexual offences for that matter, in the eyes of the law and society generally and the reasons why the law has regarded such offences as serious. The fact that the law has imposed a maximum sentence of life imprisonment for rape speaks for itself.

9.	A perusal of past rape cases has revealed that the penalties imposed for rape cases by this court in the past ranged from 3 to 8 years. It is also clear that each case must depend on its own circumstances. In R v Ligiau & Dori ("Ligiau case"), Ligiau was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment while Dori was convicted of attempted rape and sentenced to 5 years imprisonment. In these two cases, the accuseds have pleaded guilty to the charges and both were first offenders.

10.	In R v Gere, the accused was found guilty of raping his step-daughter, who was then 16 years old, and sentenced to 3 years imprisonment. In that case, the accused had threatened the victim with a bush knife. He was a first offender. 

11.	In R v Auwahau, the accused has pleaded guilty to a charge of rape and sentenced to 4 ½ years imprisonment. The force used was not one which could be regarded as beyond that which is normally used in rape cases. He was also a first offender. 

12.	In R v Nickson, the accused was found guilty of one count of rape and sentenced to 6½ years imprisonment. The victim was 15 years old at the time of the offence and had suffered injury to her vagina as a result of the sexual act committed on her. The accused was a first offender. 

13.	In R v Alualu & Bakeloa, the accuseds were each found guilty of raping a 15 year old girl and were sentenced to 3 years imprisonment each. 

14.	In R v Dausina, the accused pleaded guilty to one count of raping his 16 year old daughter. He was sentenced to 3½ years' imprisonment. 

15.	In R v Sisiolo, the accused was charged with 4 counts of rape, 3 counts relating to the same victim and 1 count in relation to a different victim with all the offences having been committed on 1st, 4th and 7th July 2006. He pleaded guilty to all the 4 counts. The accused had previous convictions in relation to the same offence. He was sentenced to 8 years for each count to be served concurrently. These are rape cases.

16.	In all these cases prison terms have been imposed and each sentence was decided in the light of the facts and the circumstances of each case and in accordance with the legal principles laid down in decisions relating to past cases of rape.

17.	In sentencing rape cases, it has now been more or less settled that the starting point is as set by Lord Lane in R v Billam and adopted by Ward CJ, in the Ligiau case.

18.	That is, for rape committed by adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case. Where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years. The crime should be treated as aggravated where any of the following factors are present: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the figure should be substantially higher than the figure suggested as the starting point.

19.	In the present case, the accused is charged with 1 count of rape. I am satisfied that this case has a number of aggravating features as well as mitigating factors as conceded by counsel. The aggravating features include the age of the victim (12 years) when the offence was committed, the age difference between the accused and the victim (16 years), the difference in physical strength between the accused and the victim, the injuries received by the victim, the shock received by the victim as a result of the manner in which the accused has handled her and the threat applied by the accused.

20.	It has been submitted by counsel for the prosecution, and conceded by counsel for the accused, that the accused and the victim are distant relatives. Counsel for the prosecution therefore says that the accused ought to be treated as a person standing in a position of trust to the victim and, by raping her, the accused had breached that trust and such breach of trust is an aggravating factor.

21.	Unfortunately, there is no material before me to show the extent or degree of the relationship between the accused and the victim. I agree that according to Solomon Island culture, relatives have some sort of customary obligation to ensure the safety and welfare of each other, but the extent of such obligation depends very much on the degree of the relationship. The obligation would be heavier on persons who are closely related but less heavier on those who are not closely related. Where the obligation is heavier, a breach of such obligation can, in my view, be treated as an aggravating factor but not so where the obligation is less heavier.

22.	In the present case, the accused and the victim have been described only as "distant relatives" but the degree of the relationship has not been disclosed. As such, I am not prepared to treat as an aggravating factor any breach of trust which the accused may have committed in relation to the victim in this matter.

23.	Having regard to these aggravating features and the principles established in the Ligiau case, it is my view that a sentence of 6 years is an appropriate starting point in this case. 

24.	From that starting point, discounts will then be given in the light of the mitigating factors which have been submitted on behalf of the accused. These include the guilty plea, the past clean record of the accused, the fact that the offence was not planned or pre-meditated and the remorse expressed by the accused. I have taken these factors into account. I have also taken into account the fact that the accused has been taking religious instructions since being placed in custody. I am sure he needs such instructions to help him avoid a repetition of this kind of offence in the future.

25.	Having considered the aggravating features as well as these mitigating factors and the submission of counsel generally and, in particular, the need for general deterrence in respect of offences of this nature, it is my view that the appropriate sentence for this offence is a prison term of 4 years.

26.	Accordingly, I sentence the accused to 4 years imprisonment commencing on the date when the accused was taken into custody.

THE COURT

_________________________

Justice James Apaniai
Puisne Judge