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R v Tuare [2024] SBHC 143; HCSI-CRC 573 of 2023 (23 May 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 573 of 2023

REX

V

KIRISIMA RUARE

Date of Hearing: 16 May 2024 and 21 May 2024
Date of Sentence: 23 May 2024

Mr. A Kelesi & Mr S Vaike for the Crown
Mr. A Tinoni for the Defendant

Sentence

Faukona, DCJ.
Introduction.

1. The defendant Mr. Kirisima Tuare was charged for rape contrary to section 136 F(1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The offence of rape carries the maximum penalty of life imprisonment.
3. On 16^th May when the charge was read to the defendant, he enters a plea of guilty immediately.

Facts of the case as agreed upon.

4. Mr. Kirisima Tuare (the defendant) is from Harapa village, Shortland Islands in the Western Province. He was 25 years of age at the time of offending. The complainant is Siroko Waiera, born on 20^th July 2009 (13 years and 9 months) and from the same village of Harapa. The defendant relates to the complainant as his third cousin sister. The complainant is an adopted child.
5. On 13^th April 2023, between approximately 1:00am and 2:00am in the morning, the complainant was asleep inside a mosquito net inside their house. Whilst she was fast asleep, the defendant entered the area the complainant was sleeping and went inside the mosquito net. The complainant was facing sideways. The defendant tapped and turned her face up and said “Mi Chris” and then took off or pulled her trousers and skirt off. The complainant tried to hold on to her trousers, but the defendant was too strong. The defendant then removed his trousers and pushed his erected penis into her vagina.
6. The complainant did not do anything, as the defendant was too strong for her. She felt pain. The defendant exited the mosquito net when the baby cried next to him, so he quickly moved out from the mosquito net. He then sat beside the mosquito net.
7. Whilst sitting there, he then had a conversation about food with his sister, Wewe Tuare, who was also inside the room at that time. Shortly after that, the defendant left the room.
8. The mother then reported the matter to the Police the next day after the complainant informed her about what the defendant did to her.

Sentencing guidelines.

9. The Court of Appeal had set out significant guidelines for the Judges to follow in the case of Bara v Reginam^[1]. They are as follows;
   1. A sentencing Judge should identify a starting point.
   2. From there an adjustment will take account of factors which make the offending more serious (Aggravating features)
   3. Or may serve to suggest the sentence is too harsh and often more related to the offender than the offence (Mitigating features).
   4. After identification of aggravating and mitigating features and how they affect the starting point, reference should be made to the effect, if applicable, of an early plead guilty.
   5. Where discount be given, that should be indicated. Where no discount to be given, a reason for that decision should also appear in the remarks.
6. Where no allowance is to be made for pre-sentence period in custody, the court should give reasons. See Tii v R[2]
7. Finally the application of totality principle of sentencing to ensure the end result reflect the criminality involved.

The Starting Point.

10. Let me commence by analysing the case of R v Billiam^[3] which the counsel for the defendant make reference to. At paragraph (4) of his submissions is a quote from Billiam case, it stated where rape is committed by one of the grounds out of six, the starting point should be 8 years” The ground that is relevant to this case is only one, which is where a person gain access to a place where the victim is living.
11. The same case again list down 8 aggravated factors which if one is present the crime should be treated as aggravated. The two features relevant in this case are, the rape has been carefully planned and the victim is very young.
12. In the latest Court of Appeal cases, in my opinion extend aggravating features to include other factors as position of trust, breach of culture and custom taboo, age of the victim (age disparity) and more.
13. Definitely, the list in Billiam case is exhausted, perhaps it is ideal that the court should abide by our own Court of Appeal decisions and try to give less attention to foreign cases. Though the law in Billiam’s case is still a good one, it is now about 40 years old.
14. It may seem as counsels agree by making reference to the case of Bade v R^[4] as an authority which the Court of Appeal set out a new starting point for rape of an adult.
15. At paragraph (34) the Court stated, “we are satisfied that the time has come when we need to specifically overrule Ligiau and Dori and Soni and set a new starting point.
16. At paragraph (35), the Court considers the starting point for a contested rape should now be 8 years. Where there is a guilty plea it should be 6 years.
17. This starting point was confirmed R v Sinatau^[5] at paragraph 12 of that Court decision.
18. At paragraph 14 of the Sinatau case the Court stated, “ It is time to set a new starting point for offending against children, as we have done in Bade v R, for in cases involved adult complainants. We reaffirm the statement above from Pana and lay down that the starting point for offences under section 136F and 139 of the Penal Code, as amended in 2016, involving children under the age of consent in a non-contested matter is 8 years”.
19. In the present case the victim’s age is not disputed, she was under the age of consent, 13 years old at the time offending. I therefore establish the starting point in this case is 8 years.

Comparative sentence.

20. Before considering an uplift proportionate to the aggravating features, it is pertinent to site guidelines from previous cases which were determined with similarity of offence and factual circumstances.
21. The counsel for the defendant makes reference to the case of Bade v R^[6]. The victim of that case was an adult wife, the defendant was the husband. The defendant took his wife to a remote area and used force above force necessary and beat her and raped her. She bled and sustain injuries. Weapons as stone and rocks were used as violence against the victim. The defendant was sentenced to 9 years imprisonment as head sentence.
22. On appeal the Court of Appeal sentence the appellant for 10 years imprisonment for rape and quashed the sentence imposed by the High Court.
23. I note there is a point raised in the above case, there was aggression, violence and rape. In this case no weapon was used to threatened the victim, no violence was used however, the victim also suffered laceration to her vagina.
24. In the case of R v Bonuga^[7], the victim was 15. The defendant asked her for sex but she refused. He forced her head down and suck his penis and then had sexual intercourse with her. The starting point set by Court was 8 years, uplift of 4 years makes up to 12, then allowance of 2 years was granted for mitigating factors, the final sentence was 10 years.
25. I am obliged to craft a sentence to attain the goals of punishment, deterrence and rehabilitation, see Tii v Regina^[8].
26. I also noted guidance from the case of R v Ramo^[9], which states, “The sole criteria relevant to determine the upper limit of an appropriate sentence is, that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone will determine an appropriate sentence.
27. It is for that purpose that facts agreed upon provide a summary of the background story and the aggravating features is what makes the offending more serious. Naturally the courts so far appreciate concern counsels for providing those facts in order for the court to determine an appropriate sentence that fits the crime.

Aggravating features.
Age of the victim.

28. The victim was 13 years old and 9 months at the time of offending. The age alone is an aggravating factor. The age of the victim should be taken into account as an aggravating factor over and above that. The fact that the victim is a child which brings the case into 8 years starting point, of course it is an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.
29. The disparity age between the victim and the defendant is 13 years old and the defendant is 25 years old, an age difference of 12 years. The age of the defendant is almost double the age of the victim, and this makes it serious, in particular when the victim is below the age of consent which is 15.

Psychological and emotional effect.

30. The link to this effect is the shame and sorrow a child suffered as a rape victim endures. There may not be any evidence that the victim suffered severe or lasting psychological harm. However judicial notice needs to be taken of the devastating effect, which this court do and cannot ignore the trauma. See R v Liufirara^[10].

Physical injury sustained by the victim.

31. The victim had suffered some physical injury to her vagina. The Dr. Report marked as Exh. P1 stated that the victim has a profuse vagina bleeding associated with lower abdominal pain, which or speculum noted a laceration at 9 O’clock position which the Dr. stitched it.
32. The report reflected that the act of rape was rough thrush and no consideration to the age of the victim and her consent. As a result, she suffered harm to her vagina. It also indicates that the defendant did not care about the wellbeing, and health and dignity of the victim.

Offence committed by night.

33. The incident actually occurred at night between 2:00am and 4:00am in the early hours of 29^th May 2022. This is a clear reflection of two significant points. One that getting into the place where the victim was sleeping was a pre-meditation act. Secondly that the offence committed was under the cover of the night to preclude others sighting him. By calculation gaining his path to where the victim lies at night is a well-planned strategy to carry out his evil and demonic sexual hunger, which subsequently implemented.
34. The question is, has he benefited out of such foolishness? The defendant gains nothing instead he is lying in the cells until now, his freedom was confined. At the same time the victim suffered harm and injury to herself with shame and anxiety which she is trying to put up with. That aggravating factor provides circumstances which make rape a crime increases in culpability.
35. After considering all the aggravating features, I am duty bound under the law to uplift the starting point to 11 years, an increase of 3 years.

Mitigating Features.
Guilty Plea.

36. I accept a plea of guilty at first opportunity provide a strong mitigating factor. It shows the courageous stand by the defendant and willingness to undergo any punitive sentence the court may impose.
37. Further it reflects by avoiding long trial which is time wastage and saves expenses for all the parties. Above all avoids the victim being called into the witness box to reveal an ordeal which is stressful and traumatic to her experience. I give credit to the defendant for pleading guilty at the first opportunity when the indictment was read to him.
38. I noted the defendant is a first-time offender with no previous criminal record. What he did was an unbecoming act out of his character, which I accept, but not that it occurred in a spur of a moment. He has pre-planned to rape his cousin sister, and capitalized on night time to conceal himself.
39. I also noted that the defendant had been cooperating with police during investigations and had given up himself voluntarily to be gated in custody until now.
40. I accepted the defendant now express his regret and remorse to the victim and her family and promise he would not repeat the same again.

Personal circumstances.

41. In the case of R v Ligiau and Dori^[11], Ward CJ, pointed out by stating, “I treat you as first offender and allow for personal circumstances outline by your counsel, but those, as I have said have little bearing on sentence in a case of this nature.”
42. The Court continue “In sexual offences, rape and attempted rape, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”
43. The defendant exposes his personal circumstances that he is village dweller, assisted his family in daily activities, fishing etc. With the above authority, I do not accept the personal circumstances of the defendant, even to make allowance for it in the sentencing.

Delay.

44. The offence of rape was committed on 13^th April 2023. The original information was filed on 31^st January 2024. The first mention date was on 19^th February 2023, and was heard on 16^th May 2024, and was sentenced on 23^rd May 2023 (Today).
45. There was no delay at all or delay that will be treated as unreasonable delay within the scope of section 10 of the Constitution.
46. Having considered the entire mitigating factors, I therefore grant allowance by deducting 2 years from the head sentence. The defendant should serve 9 years imprisonment.
47. Rape is always a serious crime. It calls for immediate custodial sentence. A custodial sentence is necessary to mark the gravity of offence, emphasize public disapproval, to serve as a warning to others and to protect women.
48. The role purpose of imprisonment is to deter the offender not to reoffend and warn others should anyone intend to follow the shoes of the defendant; he be dealt with seriously. The courts are well aware and at standby to administer the rod of justice to uphold the rule of law.
49. The increase in immoral behaviour and sexual abuse of women and children are seen as prevalent in this country. The courts are vigilant to ensure the rate of sexual abuse to women drops down to minimal or zero, to an acceptable level where harmony and peace is expected to reign.

Orders:

1. The defendant is convicted on his own plea of guilty.
2. The defendant is hereby sentenced to 9 years imprisonment, to be served.
3. Number of months the defendant serves in pre- trial custody be deducted from 9 years Imprisonment.

THE COURT.
Hon. Rex Faukona
DEPUTY CHIEF JUSTICE.

^[1] [2018] SBCA 10; SICOA – CRAC 36 of 2017 (11 May 2018)
^[2] [2016] SBCA 14
^[3] [1986] 1 WLR 349
^[4] SICOA, CRAC 9017 of 2023
^[5] Criminal Appeal case No.9027/2023 (13 October 3023).
^[6] Ibid 4
^[7] [2014] SBCA 22
^[8] [2017] SBCA 6, SICOA – CRAC 14 of 2016 (5 May 2017)
^[9] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013)
^[10] Criminal Appeal case N0. 30 of 2022 (On appeal criminal case 94 of 2021)
^[11] [1986] SBHC 15; (1985 – 1986) SILR 214 (3 September 1986)