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R v Maefelo [2024] SBHC 184; HCSI-CRC 456 of 2022 (6 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 456 of 2022

REX

V

OMORI MAEFELO

Date of Hearing: 1 November 2024 (Written Submission)
Date of Sentence: 6 December 2024

Counsel; Mr. Beto for the Crown.
Counsel; Mr. Limeniala for the Defendant.

Keniapisia; PJ

SENTENCE

Introduction

1. In a verdict dated 20/10/2023, I found Mr. Omori Maefelo (“OM”) guilty of rape contrary to Section 136 (F)(1)(a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal (Amendment)(Sexual Offences) Act 2016 (No.3 of 2016) – hereafter referred to as “the 2016 Act”. The said verdict was only read a year later on 3/10/2024 following OM’s arrest and detention. Mr. OM failed to turn up in court for his verdict on 20/10/2023.
2. In the 2016 Act new sexual abuse offences were created and there were increases in the penalties. Parliament prescribed the maximum penalty of life imprisonment for rape, demonstrating the seriousness of the offence and the intent of the legislators to deter the public from committing such an immoral act. However, the Court has the power to impose a lesser sentence term.

Starting point sentence

3. Counsel agreed in their written submissions that the starting point sentence should be 8 years on the basis of Bade. In (Bade, Court of Appeal 2023) it was held that where the victim is an adult and there is a contested trial, the start point sentence should be 8 years. Here there is a contested trial and the victim is an adult. Hence, I will put the start point sentence at 8 years.

Aggravating factors

4. I determine the following serious aggravating factors: -
   • (i) Use of weapon – Defendant had a long bush knife with him when he raped the victim. Mr. OM threatened to cut the victim with the knife, when the victim tried to stop him from having sex with her (see paragraph 7 of the verdict). As a result, the victim submitted out of fear to have sexual intercourse with OM.
   • (ii) Unlawful detention – Mr. OM unlawfully held the victim in detention at her family’s bush garden, when he held her hand tightly, and dragged her away to his garden before forcing her to have sexual intercourse with him next to his garden.
   • (iii) Isolated location – The victim was sexually slaughtered against her free will at an isolated spot next to OM’s bush garden. An isolated location means the victim cannot access help and the offender has the liberty to achieve his plans without interruption.
   • (iv) Psychological harm and trauma – Court must always take judicial notice of the long term impact and trauma on the victim, despite lack of medical and professional evidence (Bonuga, Court of Appeal 2014), and again in (Liufarara, Court of Appeal 2022), where the Court of Appeal says that the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per (Bonuga Court of Appeal 2014). Here the victim was bullied at her initial school and she had to be relocated to another school after the incident. I heard the evidence on this at trial.
   • (v) Vulnerability – The victim was a young girl in her early 20s. Young females in our community are highly regarded as vulnerable. In this case, the victim was exposed to being attacked/abused, being alone at an isolated spot in the bush at her family garden. The defendant took advantage of the victim’s vulnerability when she was alone at her family bush garden, led her by force to his garden before raping her next to his garden.
5. For all of the above 5 serious aggravating factors combined, I will uplift the start point sentence by 10 more years (2 years for each aggravating factor). Increase for serious aggravating factors should be made in years and not merely in weeks and months (Bade, Court of Appeal 2023). That will bring me to a total head sentence of 18 years before mitigation.

Mitigating factors

6. I will reduce the head sentence downwards due to mitigating factors present in this case. The first one is first time offender with no previous convictions. I deduct 4 years.
7. Next is compensation and reconciliation. Here I noted that compensation and reconciliation have been done twice. I will reduce the sentence by 3 more years.
8. I will consider to a small extent defendant’s personal circumstances being a church worker, family man and his responsibility towards his family. Personal circumstances of the offender should have less effect in mitigation in sexual abuse cases (Rex v Ba’ai, Court of Appeal 2023). I will deduct 2 more years.

Conclusion and Orders

9. The final head sentence to impose after mitigation is 9 years. As I stand back and look at this sentence term, I can only say it is appropriate for the following reasons: -
   • (i) The maximum sentence available here is lifetime imprisonment. So, 9 years is still a reasonable or even minimal term in view of the available maximum.
   • (ii) In the 2016 Act, the object of Parliament was to protect women and girls from sexual abuse. So, a higher sentence term is justified consistent with Parliament’s intent.
   • (iii) Court must support Parliament in curtailing a crime that was prevalent pre 2016 Act, by imposing stern custodial sentence terms to deter the offender and like-minded people out in the community.
10. Mr. OM, I will sentence you to 9 years imprisonment. That term will start to run from the date you were arrested and remanded prior to the oral delivery of your verdict on 3/10/2024. The correctional service authority in Auki will have the records to determine the actual date of your arrest and remand and will compute the 9 years accordingly. You are also entitled to any other pre-trial custody times as may be determined by Auki correctional centre.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE