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R v Tuita [2020] SBHC 47; HCSI-CRC 140 of 2019 (31 July 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 140 of 2019

REGINA

V

LAWRENCE GUY TUITA

Date of Hearing: 28 July 2020
Date of Decision: 31 July 2020

Mrs. Olivia Manu Ratu and Mr. Nickson Tonowane for the Prosecution
Mr. Sholto Rodney Manebosa for the Accused

SENTENCE

Bird PJ:

1. On the 17^th July 2020 and subsequent to a trial. I found the defendant, Lawrence Guy Tuita guilty of the offence of rape contrary to section 136F (1) (a) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016. Sentencing submissions was heard on the 28^th July 2020.
2. On the outset, I must remind you that the offence for which you are charged is very serious. To manifest its seriousness, the maximum penalty for such offending is life imprisonment. The maximum penalty in a rape case is equivalent to the maximum penalty in a murder case, which is life imprisonment.
3. You have pleaded not guilty to the offence of rape. It was after trial that the court found you guilty.
4. I find the following as facts:

You are related to the complainant as a maternal uncle. On the 8^th April 2018, two people and yourself (referred to as “the trio”) went to the complainant’s house at Henderson area. The trio were travelling in vehicle registration number MA6323. After leaving that house, the trio met the complainant along the road and picked her up. The vehicle turned eastwards and went to Alligator Creek area.
At Alligator Creek, you told the complainant to get out of the car. You pulled her into the cocoa plantation. At the cocoa plantation you forced her to undress and you had sex with her.
During the act of sexual intercourse, the complainant shook her legs and told you to get off her you continued to have sex with her until you were satisfied.
The complainant submitted to your force because she was frightened of you. You were a big man and you were drunk on that occasion. You also instructed the complainant not to tell anyone about what you have done to her.
The complainant had a medical condition of epilepsy, since she was little. In the document marked exhibit “C”, her medical report had confirmed that the complainant’s attention and concentrations were minimally affected. She needs a lot of motivation to sustain her conversation. Her short term and intermediate memory functions were moderately affected.

5. In this case, the prosecution had submitted that there are a number of aggravating features in your offending. It was submitted that the age disparity between yourself and the complainant is an aggravating feature. Your age is not known but you are a mature person of about 35 to 40 years old. The complainant is 18 years old. Your age disparity would be about 17 to 22 years. At your age, you can be regarded as a father of the victim. You should have behaved and acted in a responsible manner that is accorded to your personal standing.
6. You are related to the complainant as a maternal uncle. From that relationship, you are placed in a position of trust in this offending. In Solomon Island culture, you should be the person that takes care of your sisters children. Your family has put that trust on you. You have breached that trust and your family members and members of your community can no longer have any respect for you.
7. Apart from the above reasons, you should have known that the complainant was a female person that had a history of epileptic fits. It is a medical condition that close family members like yourself, would have some knowledge of. In her state, she is a vulnerable person that needed constant care and attention from family members like yourself. You did exactly the opposite. You took her away from the confines of her home and family and had sexual intercourse with her without her consent. The medical report tendered as exhibit “C” confirms the complainant’s current medical condition.
8. I have also noted that what you did to the complainant on the 8^th April 2018, had caused her great emotional and psychological pressure. In the exhibit marked “C”, it was noted that the complainant was not psychological stable. She was noted to have childish type behaviour and demeaner. Those are very clear indicators that your offending had caused much adverse emotional and psychological pressure on the complainant. She will have to live with that horrific experience for the rest of her life.
9. The emotional and psychological pressures that are experienced by the complainant are coupled with the fact that you have forced her into submitting to your intentions. She was afraid because you were a big man and you were drunk. She was warned not to tell anyone about the offending. In her state, she submitted because of your pressure on her to do what you wanted. You did not even take the time to think or to ask her if she was willing to have sex with you. You were reckless in your actions and behaviour.
10. It was also submitted that your action on the 8^th April 2018 was premeditated. You have followed Samson and Veronica to the complainant’s house at Henderson area. On your way to the main road, you saw the complainant and picked her up in the car you were travelling in. You were told that the complainant was going to her aunt’s house at Zion but on the main road, you turned eastwards to Alligator Creek. At Alligator Creek area, you raped her.
11. On your behalf, it was submitted that you are a first offender. You had no criminal history. I have also noted that no weapon was used in the offending. There was no subsequent act committed on the complainant.
12. I have noted your personal circumstances but those circumstances will not weigh much in your favour. You should have set your priorities right at first instance. If you have any regard for your wife and your children, you would not have allowed yourself to stoop so low so as to commit this offending.
13. I have also noted your lawyer’s submission that the act was unplanned. I do not accept your lawyer’s submission simply because you knew that the complainant was going to Zion, to her aunt’s house but you instead took her to Alligator Creek area and raped her. Your companions had facilitated that trip to Alligator Creek.
14. In sentencing you, I am guided by the principles laid down in various cases of this nature before this court and the Court of Appeal. In the case of Regina v Ramo [2013] SBCA 9, CRC 38 of 2012, the court said the “in order to determine the appropriate sentence to be imposed in any particular case, the Court would consider the nature and the circumstances surrounding the commission of the offence......” In the case of Regina v Iroga [2013] SHBC 128, HCSI, CRC 164 of 2009, it was highlighted that the court must also recognise the need to be guided by the principles of retribution, deterrence, prevention and rehabilitation.
15. With the above principles in mind, my attention is also drawn to the case of R v Ligiau and Dori [1986] SHBC 15 [1985-1986] SILR 214. In that case, the court had stated that the starting sentence in a contested rape case is 5 years. Depending on the absence or the presence of aggravating and mitigating features, that figure can either be reduced or increased.
16. In your case, there are aggravating features that must be highlighted and which included your age disparity, the breach of trust, the act was premeditated and your acts on a vulnerable young female person as well as the emotional and phychological pressure on her. On these aggravating features, I am of the view that an increase of 2 years is added to the starting point.
17. As earlier stated, in cases of this nature, your personal circumstances would not weigh much as mitigating factors in this case.
18. I hereby sentence you to 7 years imprisonment for the offence of rape contrary to section 136F (1) (a) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
19. I direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the Court

THE COURT
Justice Maelyn Bird
Puisne Judge