HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 75 of 2009

REGINA

-V-

Beniamina TEBITANGA

Hearing: 1st March 2013
Sentence: 7th March 2013

F. Taeburi and J. Naiqulevu for the Crown;
B. Ifuto'o and S. Valenitabua for the Defendant.

Palmer CJ.

1.	The defendant, Beniamina Tebitanga ("the Defendant") has been convicted of three counts, after trial, rape as the head count, attempted rape and indecent assault; the most serious is the rape charge, with a maximum sentence of life imprisonment. The count of attempted rape has a maximum of seven years and the indecent assault five years.

2.	Rape has always been regarded as a serious offence for it entails a violation of the will, mind, personality and dignity of a victim; in this case a victim of only 15 years. 

3.	In such a contested case where the victim was lured to an isolated spot at night, overpowered and subjected to such indignities the starting point for the offence of rape would be one of six years. 

4.	Where aggravating features exist, these would increase the sentence accordingly. I note the following aggravating features about this case. First, the age difference between them is significant, the defendant being a man of mature years, 48 and married.

5.	Secondly, you were under the influence of alcohol when you committed the offence and therefore would have been a frightening ordeal for the victim in such circumstances. A person under the influence of alcohol has a propensity to being unreasonable, talkative, demanding and threatening, loud, abusive, uncontrollable and violent if his demands are not met. The evidence adduced showed that you were loud, insistent, controlling and domineering to the point she became intimidated and submitted to your demands out of fear and followed you to Canaan village. This is consistent with her description that you "forced" her to accompany you. 
6.	Thirdly, this was accompanied by an element of aggression, force and physical violence which was evident at trial. The victim was pushed from behind and overpowered, pulled and thrown onto the ground, dragged some distance to a small clearing before being undressed by you and raped. You forcefully removed her T-shirt and an undergarment she described as a "one string top" and pushed it into her mouth, thus preventing her from shouting. You could have suffocated her with such action. 

7.	You took advantage of your physical strength and size as an adult man, your position of authority to her as a Granny, your experience as an adult and married man, the location, being at an isolated spot and the time, being at night. The place was far from any nearby houses and people. When someone came upon you by chance and the victim sought to get up from under you to escape, you held onto her mouth again and squeezed her neck. She was only able to escape from you after she hit you with one of her free hands and dislodged your hand from her. This disabled or distracted you momentarily and she was able to get away from you.

8.	Fourthly, you were in a position of trust to her in a "Granny" relationship. She looked up to and respected you but instead you abused and violated that trust.

9.	Fifthly, there was an element of conniving involved where you tried to lure the victim and her aunty Avita Tererei, to follow you voluntarily by giving the impression you had traditional powers that could enhance their dancing abilities etc. by bathing them in custom oil. When you realized they were not interested you became demanding, insistent and forceful. I would not describe this as a spur of the moment crime.

10.	On the other hand, I note this is your first time to appear in court and that you do not have any previous convictions. I note no physical injury or harm was inflicted although the mental and emotional trauma, distress and stress that the victim was subjected to that night cannot be overstated. Tebitara Reo described her condition and appearance that night as being extremely distraught and terrified of you.

11.	I also bear in mind that the offence of rape while complete was by way of partial penetration because it appears you could not achieve full or complete erection when you sought to rape her that night. She described your penis as being "not strong"; I think she meant "not hard". The medical report that her hymen was intact in my view is consistent with her description of what happened. 

12.	You could not rape her further although you attempted to do so again simply because you could not achieve any erection, although you tried. These facts will have to be noted in your favour. 

13.	I note your family circumstances; you have a large family of ten children, who will be affected by your incarceration. That is unfortunate but you should have thought of them first before committing such offence.

14.	I also take note of the delay in the prosecution of this case, which is not entirely your fault but more in the way this case has been processed through for listing. The records seemed to show that the matter was committed in or about October 2009 but somehow never processed through until about September 2011.

15.	Taking everything into account, I am satisfied a sentence of four years is appropriate for the head count of rape, 3 years for attempted rape and 2 years for indecent assault. These were all committed at the same time and therefore can be considered as forming part of the same transaction; I am satisfied they should be ordered to be served concurrently. The period spent in custody is also to be taken into account. You have a right of appeal if you are aggrieved with this sentence. 

Orders of the Court:

1.	Impose sentences as follows:

(i)	4 years for rape;
(ii)	3 years for attempted rape, to be served concurrently; and
(iii)	2 years for the indecent assault, to be served concurrently. 

2.	The period spent in custody to be taken into account.

The Court.