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R v Tamoli [2021] SBHC 121; HCSI-CRC 625 of 2021 (29 October 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.625 of 2021

REGINA

V

BROWN TAMOLI

Date of Hearing: 28 October 2021
Date of Decision: 29 October 2021

Mr J Auga and Mr N Tonowane for the Crown
Mr J R Brook for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Brown Tamoli, you have pleaded guilty to one charge of rape contrary to section 136(1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty for this offence is life imprisonment.
2. You were arrested in June 2017 and released on bail in October 2017. You breached that bail and were not rearrested until August 2021. At your committal hearing last week you pleaded guilty to the offence and were committed to the High Court. With co-operation between your counsel, the prosecution and the Courts the Crown filed the information against you yesterday and you again pleaded guilty. You now appear for sentence.

Facts

3. In June 2017 you were 33 years of age. On 12 June 2017 you were drunk. You were going to Tawaniau village around 6.30 pm when you met your victim. She was a child, only 10 years old. You asked her to play with you on the beach. You then asked her to have sex with you. She refused. You forced her to a secluded area. You induced her to drink a can of beer. You tried to insert your penis into her vagina. You were unable to penetrate her so you inserted your finger into her vagina. You told the Police that she was afraid and calling for her mother while you were sexually abusing her.

Aggravating features

4. The prosecution has raised a number of aggravating features:
   1. Disparity of age;
   2. Your victim was very young only 10 years old.
   100. Your conduct is said to have preplanned. This was later accepted to be persistent conduct as opposed to pre-planned, as you moved the complainant from one place to another. I do not regard that as sufficient as to regard your conduct as preplanned. However, I note you took her to a secluded place to violate her.
   4. The complainant suffered injuries. This was not included in the facts for sentencing and there appears to be no medical evidence to support this submission.
   5. You induced the child to consumed beer.
   6. You were intoxicated at the time.
   7. The complainant must have suffered emotional and mental suffering and pain.
   8. Your counsel has acknowledged that you used your strength, force and threats in order to sexually abuse your victim but says no greater force was used than was necessary to commit the offence.

Mitigating features

5. You have pleaded guilty at the earliest opportunity in the sense that you were committed to the High Court last week and you pleaded guilty as soon as an information was presented. However, the plea was entered more than 4 years after the offence because you breached your bail conditions. You were not re-arrested until August 2021.
6. You are described as a family man will 6 children ranging in age from 13 years to 2 months.
7. You are a church man and were conducting a service when the Police arrested you in 2021.
8. You have no other criminal record either before or after this offence.
9. I am told you have reconciled with the family of your victim and are remorseful.
10. It was submitted that there was significant delay in dealing with this matter. I reject the submission that this is a mitigating feature as the delay was caused by you breaching your obligations to the Court. You could have made arrangements through your counsel to return voluntarily to the Court but by waiting till you were arrested you have in fact caused the delay for yourself and for the victim.

Starting point

11. Both counsel have referred to R v Ligiau and Dori [1986] SBHC 15 as the appropriate tariff case. In Ligiau and Dori the Court said:
    • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.”
12. The Court of Appeal has approved Ligiau and Dori in Soni v Reginam [2013] SBCA 6 where the Court of Appeal after confirming Ligiau and Dori to be the appropriate tariff case added:
    • “The crime should in any event be treated as aggravated by any of the following factors:
    • (1) ...
    • (2) ...
    • (3) ...
    • (4) ...
    • (5) ...
    • (6) ...
    • (7) the victim is either very old or very young;
    • (8) the effect upon the victim, whether physical or mental, is of special seriousness.”
13. Crown counsel has referred the Court to the Court of Appeal decision Regina v Liva [2017] SBCA 20 where at paragraph [25] the Court approved what they had said in said in R v Bonuga [2014] SBCA 22:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
    • These comments from the Court of Appeal are consistent with recent studies that have shown that the victims of sexual violence tend to have a lower life expectancy than others in the community resulting from the mental and emotional trauma.
14. In Pana v Reginam [2013] SBCA 19 the Court of Appeal was dealing with the rape of a 3 year old girl. They said at paragraph [17]:
    • “[17] The English Court of Appeal in Millberry v R [2002] EWCA Crim 2891 warned of the dangers of double accounting when considering the aggravating aspects of a case. We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.”
15. The prosecution referred the Court to several decisions that predated Pana. I have considered them but they do not add to the guidance provided by the authorities already referred to above.
16. Your position as one who leads worship at church cannot be reconciled with your conduct. You will have the opportunity to reflect on what you want for your children and what you have taken from the complainant. From a starting point of 8 years I add a further year to reflect the young age of your victim. I do not add anything for what the prosecution describes as pre-planning as I accept the offending was spontaneous when the opportunity arose. However, you were intoxicated, you induced the complainant to consume alcohol and you were persistent although you knew her to be frightened and crying for her mother. I take judicial notice of the likely harm that you have caused to the complainant. For the additional aggravating factors I add a further 6 months. The starting point after taking into account the aggravating features is therefore 9 years and 6 months’ imprisonment.

Discussion

17. The most significant factor in mitigation is your guilty plea. As set out above you were committed to this Court only last week.
18. I accept that your guilty plea was entered at the earliest reasonable opportunity in the High Court, however your absconding while on bail has delayed when you might otherwise have been committed to the High Court. I propose giving a substantial reduction to reflect your guilty plea.
19. The amount of reduction that can be given for a guilty plea reduces as time goes on. An early guilty plea can be a reflection of remorse.
20. In Pana v Reginam [2013] SBCA 19 the Court of Appeal said at paragraph [22]:
    • “The most important mitigating effect of a plea of guilty in a sexual offence and in any case involving a young child is that it saves the complainant from the distress of having to relive the trauma from the witness box. It is also frequently accepted as a sign of remorse and realisation of the wrong the accused has done. Finally and too a much lesser extent (see Millberry) is the pragmatic fact that it saves the court time and expense.”

Then at paragraph [26] the Court said:

• “The judge was correct to make some reduction for the plea of guilty. In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty.”

21. You are described as a family man with 6 children. You have not treated the complainant as you would like your children treated. You showed a callous disregard for another child who will have to live with the abuse you inflicted on her for the rest of her life. You chose to offend in this way. As the Court said in Ligiau and Dori matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.
22. Applying the principles to your case, I allow 3 years’ reduction for your guilty plea and the other mitigating factors.
23. Your sentence is then 6 years and 6 months’ imprisonment. I direct that the time you have spent in custody is to be taken into account when calculating your release date.

Orders of the Court

(1) The Defendant is sentenced to 6 years and 6 months’ imprisonment.
(2) In calculating the time to be served the authorities are to take into account the time he has already spent in custody.

By the Court
Justice Howard Lawry PJ