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R v Hina [2014] SBHC 6; HCSI-CRC 375 of 2013 (3 February 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 375 of 2013

R

v

PHILIP BONIE HINA

Coram: PALLARAS J
Crown: Mr. A. Aulunga
Defence: Mr. M. Holara
Hearing Dates: 21-26 November & 2 December 2013
Verdict Delivered: 11th December, 2013
Sentence Delivered: 3 February 2014

SENTENCE

1. On 11th December 2013, you were convicted of one count of intimidation contrary to Section 231 of the Penal Code [Cap. 26] ("the Code"), four counts of indecent assault contrary to Section 141(1) of the Code, and four counts of rape contrary to Section136 of the Code.
   
2. The reasons for those verdicts have already been explained to you.
   
3. It is said on your behalf that the time of the offences you were 27 years of age, having been born in the Reef Islands, Temotu Province. You are married with one child and your wife is pregnant with a second child, that you were fully employed and were educated to fifth level in secondary school.
   
4. It is said that you have not previously offended, that the offending was not premeditated and that you and the Complainant knew each other well.
   
5. I am also told that your family has paid $500 by way of compensation to the family of the Complainant. The relationship with your wife, who is also employed, has been restored.
   
6. From this information, it is apparent that you were fortunate enough to have had opportunities both in terms of your education and your employment that many others with a similar background to you have not had.
   
7. I am unable to accept your counsel's submission that you were of good character prior to the commission of these offences. The Crown have satisfied me beyond reasonable doubt that you have seven prior convictions in the Magistrate's Courts at Lata and in Honiara. It is notable that your referee, in his written testimonial, also suggests that you have had no previous criminal convictions. You have either totally forgotten about these seven convictions, which I find to be unlikely, or you have misled both your counsel and your referee. In any case, your criminal record does not of course result in any increase in sentence for these offences, it simply means that you cannot be given any benefit for being of previous good character.
   
8. The rape offences of which you have been convicted are extremely serious offences. Not only are they serious offences in themselves, but they are extremely serious examples of those offences. The intimidation offence alone carries a maximum penalty of 3 years imprisonment. The indecent assault offences carry maximum penalties of 5 years imprisonment each. The maximum penalty for each of the four counts of rape is life imprisonment.
   
9. The extremely disturbing feature of your offending is the manner in which you repeatedly mistreated and abused the Complainant over a number of hours. You were nine years older than she was yet you terrorised her over a long period of time, sexually molesting and ill-treating her as if she was your own personal slave. You used her in a way that degraded and insulted her dignity and humanity and, at the end you abandoned her in the bush for her to fend for herself. It was conduct of exceptional cruelty and sets you apart as a malicious and malevolent offender.
   
10. For just when the Complainant might have hoped that you had satiated yourself on her body, you forced her to walk through the bush again, in the dark, naked or almost naked, to another spot of your choosing where you repeated the violence upon her. This happened on four separate occasions over a period of hours. When she sought to escape from you by running into the sea, you forced her to abandon that hope by hurling rocks at her until she gave up out of a fear of being hit by the rocks or of drowning in the sea. Your attack on the Complainant was sustained, prolonged, violent and degrading.
    
11. I have been referred to several cases including the often referred to case of R v Ligiau and Dori[1]in which sentencing levels for the offence of rape were discussed. The defence referred me to the case of Millbery v R[2] and have submitted that in this case an appropriate starting point for sentencing for the offences of rape should be 8 years.
    
12. I have been provided with a Victim Impact Statement, which touches on the serious physical and emotional impact that these events have had upon the Complainant. It has resulted in significant disruption and upheaval in her life, which was previously happy and carefree. It has also had a significant impact on her self-esteem.
    
13. Since the decision in R v Billam[3], Courts in Solomon Islands have followed the approach outlined by Lord Lane where he stated—
    

The crime (of rape) should in any event be treated as aggravated by any of the following factors:

• Violence is used over and above the force necessary to commit the rape;
• A weapon is used to frighten or wound the victim;
• The rape is repeated;
• The rape has been carefully planned;
• The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;
• The victim is subjected to further sexual indignities or perversions;
• The victim is either very old or very young;
• 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 sentence should be substantially higher than the figure suggested as the starting point.

14. "A weapon is used to frighten the victim."
    

In assessing these features of aggravation against the facts of the present case, although perhaps not strictly described as a weapon, you picked up a pan of boiling oil and threatened the Complainant with it unless she complied with your demands. In evidence, she described how, while at first to refusing to go with you when you told her to, as soon as you picked up the boiling oil she immediately got out of her chair and walked from the kitchen. While you did not carry out your threat of throwing the oil over her, you had already achieved your purpose. The boiling oil and the threat it represented was just as effective as any other weapon that might have been used to force her to comply.

15. "The rape is repeated."
    

I have already described how the rape was repeated on four separate occasions.

16. "The victim is subjected to further sexual indignities or perversions".
    

I have also described how the Complainant was put through the indignity of being forced to walk naked through the bush until you reached your next chosen site to repeat your offending. She also suffered the indignity of the indecent assaults, which you committed upon her on each occasion prior to raping her.

17. "The victim is either very old or very young."
    

While the Complainant might not be said to be "very young", she is still at 18 years of age, a young girl.

18. As a result, I find that the circumstances of this case are attended with such features of aggravation as to make the suggested starting point of 8 years as submitted by the defence to be inadequate and inappropriate. In my judgment, an appropriate starting point is 12 years.
    
19. I am conscious that having decided that the threat to throw burning oil over the Complainant is to be regarded as an aggravating feature of the offence of rape, that your conviction for the offence of intimidation should not result in a double punishment for the same actions. I note however that the intimidation did not simply consist of the threat alone, it also included pursuing the Complainant when she ran from and back to the kitchen. While I was not satisfied that you assaulted the Complainant in the kitchen, I accept her evidence that the manner in which you approached her inside the kitchen was intimidatory.
    
20. As I have previously remarked, these offences were committed over a period of hours. The Complainant continually pleaded with you to desist and to let her go yet you chose to continue. There was ample opportunity between the commission of each separate series of offences for you to reconsider what you were doing, to exercise some self-control and to cease your attack upon her. There was also ample opportunity for you to consider what you were doing to this young girl and to show some human pity on her.
    
21. You did none of these things. You continued to sexually assault her and to rape her. You made conscious decisions to ignore her pleas and to commit further serious offences. Because of these factors, I do not regard these offences as one act but of separate, distinct and deliberate actions, which would ordinarily call for cumulative rather than concurrent sentences.
    
22. However, the result of the strict imposition of cumulative sentences would produce a sentence, which would be unjustifiably harsh. I have regard to the principle of totality and consider that it is appropriate to apply it to better reflect a just sentence.
    
23. The authorities establish that the totality principle of sentencing requires a sentencing judge to ensure that the aggregation of the sentences imposed for each offence is reflective of a just and appropriate measure of the total criminality involved.
    
24. The method by which the totality principle is to applied has been the subject of consideration in the High Court of Australia in the case of Mill v R in which the Court said:
    

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[4]

25. In Director of Public Prosecutions v Grabovac, the Court discussed the approach to adopt when sentencing for multiple offences so as to avoid the imposition of what would otherwise be a crushing sentence thus:
    

In general, a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, ... where practicable where applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence.[5]

26. If the result of imposing appropriate sentences for a series of offences produces an outcome which is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In this regard I am guided by the preference expressed by the High Court of Australia in Mill and will adapt the orders made as to cumulation and concurrency.
    
27. After considering all of the mitigating and aggravating factors referred to I have decided upon the following sentences.
    
    1. Count 1 – Intimidation 1 year imprisonment
    2. Count 4 – Indecent Assault 2 years imprisonment
    3. Count 6 – Indecent Assault 2 years imprisonment
    4. Count 8 – Indecent Assault 2 years imprisonment
    5. Count 12 – Indecent Assault 2 years imprisonment
    6. Count 5 – Rape 12 years imprisonment
    7. Count 7 – Rape 12 years imprisonment
    8. Count 9 – Rape 12 years imprisonment
    9. Count 13 – Rape 12 years imprisonment
       
28. The sentences imposed for Counts 5, 7 and 9 are to be served concurrently. In relation to the sentence imposed for Count 13, 8 years of that sentence is to be served concurrently with the sentences passed for Counts 5, 7 and 9. The remaining 4 years is to be served cumulatively upon the sentences imposed for Counts 5, 7 and 9. This results in a sentence of 16 years imprisonment in respect of Counts 5, 7, 9 and 13.
    
29. The sentences imposed for Counts 1, 4, 6, 8 and 12 are to be served concurrently with each other and concurrently with the sentences imposed for Counts 5, 7, 9 and 13.
    
30. As a result, you are sentenced to a total period of imprisonment of 16 years.
    
31. There is one other matter that I wish to raise. I have made it clear in these remarks how I view the conduct of the prisoner. What is no less disgraceful however is the conduct of the four other adults who were present when the prisoner began to accost the Complainant. It was obvious to all what he wanted from her and it would have been equally obvious to all that she wanted nothing to do with him. One of these adult bystanders even described himself as a village elder with responsibility for caring for his wantoks. How he or any of the others, including an adult woman who was meant to be a friend of the Complainant, could stand by and watch what was happening in front of them without doing anything to help or to protect the Complainant, is beyond comprehension and is the ultimate betrayal. They are complicit in these terrible crimes not for what they did, but for what they failed to do. Sadly this case demonstrates how alone the young women in our community are when they are preyed upon by sexual predators like the prisoner, in full view of others and safe in the knowledge that they will not be challenged or interfered with by them. It is this attitude more than any other, which creates the environment within which men such as this prisoner feel perfectly safe to behave like uncivilised beings from another age. For the children of this community, particularly the female children, to have any hope of living a life free from the fear of molestation and abuse, the adults of this community have to stand up and be counted. For if the adults do not have the courage or the integrity to protect our children, then they are lost.
    

.........................................................
THE COURT

^[1] [1986] SBHC 15; [1985-1986] SILR 214
^[2] [2003] 1 WLR 546; 2 All ER 930; 1 Cr App R 396.
^[3] [1986] 1 WLR 349
^[4] [1988] HCA 70; (1988) 166 CLR 59 at 62-63
^[5] (1998) 1 VR 664 at 680