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R v Ariki [2025] SBHC 68; HCSI-CRC 139 of 2024 (6 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 139 of 2024

REX

V

SAMUEL ARIKI

Date of Submission: 20 February 2025
Date of Sentence: 6 May 2025

Mrs M Rehomora for the Crown
Mr D Pulekera for the Defendant

SENTENCE AFTER PLEA OF GUILTY

R. Faukona, DCJ.
Introduction.

1. The defendant in this case is Mr. Samuel Ariki. He comes from Ravenga village, Tikopia, Temotu Province.
2. By amended information filed on 13^th September 2024, the defendant was charged for three (3) counts of Rape contrary to section 136 F (1) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
3. On 29^th October when the charges were read to the defendant, he entered a plea of guilty to all the charges.

Facts as agreed upon.

4. The defendant Mr. Samuel Ariki, at that time of committing the offences was living at Halete village, big Ngella, Central Islands Province. He was 37 years old at the time of first offending and was 38 years old at the time of the second and third offending.
5. The complainant is Regina Vale of Haleta village, big Ngella, Central Islands Province. She was 10 years old at the time of the first incident and 11 years old at the time of second and third offending.
6. The defendant is the complainant’s uncle. He is married to the complainant’s aunty by the name of Serah Koiase who is the elder biological sister of the complainant’s father.
7. The first offence was committed on an unknown date between 1^st January 2022 and 31^st December 2022, inside the defendant’s house at Haleta village. At that time of sexual intercourse, the defendant penetrated the complainant’s vagina with his penis. She then saw blood at her vaginal area. After that the defendant told her to go and wash herself at a water source behind his kitchen. She did not tell anyone about what the defendant did to her because she was scared of her parents.
8. The second incident occurred on 28^th October 2023, at Haleta village, big Ngella, Central Islands Province. On that date the defendant inserted his fingers into her vagina when they were at Janet’s house. At that time the complainant was looking for lice in the defendant’s hair while he was lying on her laps. Whilst lying there he touched the complainant’s vagina. He then poked his finger into her vagina.
9. The third incident occurred on 28^th October 2023, at Haleta village, big Ngella, Central Islands Province. On that date the defendant used his left hand to touch the complainant’s vagina when they were watching movies inside his house; she was sitting down on a mattress inside the room. He then pushed his penis into her vagina whilst lying down. At that time the defendant locked the door and there was no one else in the house. When the complainant came out of the house her mother and Roasi saw her. Her mother then talked to her but she ran away and went to the sea to swim.
10. The Defendant was remanded in custody on 23^rd January 2024.

Sentencing Principles.

11. Again, with the preview of the case of Ti’i V R ^[1] which exerted a significant basis as being the foundation of the sentencing principles. In this case the Court of Appeal stated in paragraph (21), “A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.
12. The scope of deterrence covers general and personal. General deterrence is required to reflect that the community does not accept the defendant’s conduct, and to deter other members of the Community from committing similar offence.
13. Personal deterrence is aimed at discouraging the defendant from committing the same or similar offence in the future.
14. In respect to the principle of punishment the Court of Appeal in R v Ramo^[2], stated that the sole criteria relevant to a determination of the upper limit of an appropriate sentence is that punishment fits the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence. In other words, the court must consider the nature and the circumstances surrounding the commission of the offence.
15. These principles had been developed by the courts providing guidelines to assist in the exercise of discretion.
16. The work of a judge is to decide which principle (s) apply in a given case. In some case a judge gives a balance consideration of all the principles, in others a judge will emphasize one principle than the other.
17. In furtherance, the Court should ask itself whether public interest in the case will be served by retribution and deterrence on the offender and others from committing the type of offence, or whether public interest will be better served by rehabilitation of the offender.

Sentencing Method.

18. The case of Bara v R^[3], the Court of Appeal set out a process a sentencing Judge should follow. With appropriate guidance, a sentencing judge should identify a starting point. From there an adjustment to take account of aggravating factors which make the offending serious or may serve to suggest that the seriousness is too harsh and often related to the offender than the offence (mitigating features) These require the judge to set out what he regards as aggravating and mitigating when he intends to take them into account, in the final sentence or reasons why he intends not to take them into account.
19. 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 guilty plea. Where a discount is to be given that should be indicated. Where no discount to be given, a reason for the decision should also appear in the remarks made on sentencing. Equally, where no allowance is to be made for pre-sentence period of custody served reasons should be given - see Tii v R ^[4].
20. Finally, the totality of sentence should be examined to ensure that the end result is properly reflected in the criminality involved in the offending.

Starting Point.

21. The starting point in this case attracted two different approach, one from the Crown and the other from the defense Counsel.
22. The Crown rather favors the conclusion attributed in the Sinatau case which the Court of appeal stated that it is time to set a new starting point for offending against children, as we have done in Bade V R^[5] in a case involving adult complainants. We reaffirm the statement above from Pana and lay down that the starting point for offences under S.136 F (Rape) of the Penal Code as amended in 2016, involving children under the age of consent in a non- contested case is 8 years.
23. After the Sinatau case in 2023, the courts thereafter adopted that decision as authority until now.
24. The defense Counsel in this case make reference to the case of R v Ligiau and Dori,^[6] where the Court of Appeal had set 5 years as starting point in a contested case for rape.
25. However, in the Sinatau case the Court of Appeal at paragraph 12 stated; “However, in the light of our decision in this session, Bade v R^[7], we confirm R v Ligiau and Dori^[8] and Soni V R^[9] are overruled. The starting point for contested rape is eight years imprisonment and for an uncontested rape is six years imprisonment”.
26. The court further stated in paragraph 13 that Bade involved an adult complainant. This Court has previously said in Pana v R^[10], we stated at 15 ;
27. “Although the age of the rape victim is always a factor, we consider that, when a victim is below the age of consent, that should always bring the starting point to 8 years”.
28. The Counsel further submits by referring to the High Court case of R v Mansion^[11], where the Court stated that in a non- contested case the starting point is less than 5 years. The counsel argues that should be well within par in the case of Bade where the starting point for non-contested case is 6 years.
29. It could appear the defense Counsel has misconceived the core of the Sinatau Case. Very simple as it exerts, that where the victim is an adult, in a non –contested case the starting point should be 6 years. But if the victim is under the age of consent, in a non-contested case, the starting point is 8 years.
30. The second approach which the defense Counsel has flawed in his submissions, that the decision of the Court of Appeal binds the High Court. The issue of starting point has well settled; therefore, any decision of High Court cannot bind itself. The issue has been well addressed and it would be misconceived to go around it.
31. Therefore, I am well satisfied on the authority of Sinatau, that the starting point is this case, having considered the victim was 10 and 11 years when the offence were committed on her, and an age below consenting age of 18 years. The starting point in this case is 8 years for all three counts.

Aggravating Features.

32. The first aggravating feature noted from the Crown submissions is breach of trust and respect. The defendant in this case is the complainant uncle. He was married to the complainant’s aunt. The wife of the defendant is Serah Koise the sister of the complainant’s father. The relationship is very close, more or less within a family unit.
33. By raping his niece, a child of 10 and 11 is an absolute breach of trust and respect. It brings shame to the family with a diminished character.
34. What the defendant did destroys trust vested on him. He failed to realize he breaches their custom and law.
35. The victim in this case is of tender age of 10 and 11. By authority of Sinatau I take into account the age of complainant which is an aggravating factor. I uphold the principle that the aggravating effect on sentence will usually be greater the younger the child. The community actually deploys such action which of course brings shame to the family and the community as well.
36. Age difference is great in this case, hence the severity must greater as well. Noted, the age of the victim is 10 to 11 years an age quite risky to commit rape on her. The age reflect she was below the age of consent, even so, the defendant has reckless about her consent. An attitude inconsiderate about the safety of the victim and any psychological effect she may suffer.
37. It would appear the defendant may have planned to have sexual assault on the victim. She could have been attracted to him for some time. On the day of the first incident as soon as the defendant entered his kitchen where the victim was sitting with the defendant’s wife, he immediately told her that he would like to touch her cunt which he did. Then he led her into his house and showed blue movie to her. That action was to induce her mind to submit to sexuality. And then he raped her.
38. Whether it was planned action or not, however, the defendant capitalized on her being close relative and access to each other’s house is no problem. This was what happened in this case.
39. Repeated offending is by far the worst scenario. The complainant is only 10 and 11 years old when the defendant had full penile sexual intercourse with her, three times within 2 years. That is very devastating to the family of the complainant.
40. The defendant is a Tikopian married to the complainant’s auntie. What those occasions left behind were grudges among the family, hatred, unfriendly, not living in harmony.
41. The actions of the defendant have placed the complainant’s family in an unharmonious shame destroying their previous good relationship. The community will look upon them as a problematic family caused by one man not an indigenous person from Ngella.
42. All these anxieties will definitely affect the complainant and her family. If she complains about any psychological harm or trauma, that cannot be questioned, the impact is reality. I take judicial notice of this.
43. The aggravating factors enumerated in the crown submission cannot be denied. They are all reality exerted by the circumstances surrounding the commission of the rape offences.
44. Having considered the aggravating factors and the scenarios they reflect, I am able to conclude the circumstances of this case are serious, warranted an uplift of 7 years in addition to the 8 years as starting point, making it 15 for each count.

Mitigating factors.

45. I noted and give credit to the defendant for entering an early guilty plea at the first available and reasonable opportunity. By pleading guilty he demonstrates that he felt remorse for what he has done and willing to accept responsibility for his conduct.
46. In addition, by entering a plea of guilty it serves time and resources to run a full trial. It also avoids calling the complainant to the witness box to relay an ordeal which she now, perhaps, wish to put behind and move forward with her life.
47. I also take into account that the defendant had co-operated with Police during the course of investigations. During the interview he honestly admitted and conceded to the allegations. That assist Police investigations and saving expenses and resources.
48. I noted the defendant has no previous criminal record and there is no evidence to prove so. He is a person with good character until these offences, though first time, but serious when considering the circumstances surrounding the offending.
49. Of course, I will consider time spent in custody. He has been placed in custody around 23^rd January 2024 till to this date.
50. Upon considering the mitigating factors which I take into account it is decided that a reduction of 2½ should be allowed for mitigating factors. The actual sentence to serve is 12½ years for each count.
51. This sentence is aimed at deterring the defendant from reoffending. If the court is too lenient to him, he will become a dangerous man within the community. He seems to have no care attitude. On the third occasion he even mentioned he would touch the victim’s cunt whilst the mother of the victim was present. That is disrespectful and a kind of attitude which the community condemns.

Orders:

1. The defendant is found guilty on his own admission of the charges.
2. The defendant to serve 12½ years imprisonment for each count to run concurrently.
3. Any pre-sentence custody be deducted from 12½ years imprisonment.

The Court.
Hon. Faukona Rex.
DEPUTY CHIEF JUSTICE

^[1] [2017] SBCA 6; SICOA – CRAC 14 of 2016 (5 May 2017).
^[2] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013).
^[3] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018).
^[4] [2017[SBCA 6; SICOA-CRAC 14 of 2016 (5^th May 2017).
^[5][2023] SBCA 39; SICOA-CRC, 17 of 2023 (13 October 2023)
^[6][1986] SBHC 15.
^[7]Ibid (5)
^[8] Ibid (6)
^[9] [2013] SBCA 6
^[10] CRAC 13 of 2013 (8 November 2013)
^[11] No citation disclosed by Defence Counsel.