Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

R v Sumara [2024] SBHC 144; HCSI-CC 168 of 2024 (8 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 168 of 2024

REX

V
WILSON SUMARA

Date of Hearing: 4 September 2024
Date of Sentence: 8 September 2024

Mr J Auga for the Crown
Mr M Owen for the Defendant

SENTENCE FOR RAPE

Pitakaka PJ

1. Mr Wilson Sumara, I convicted you on your plea of guilty on 4/9/24 when you were arraigned before this court for the charge of rape contrary to section 136F(1)(a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The Director of Public Prosecutions filed those charges on 26/8/24.
3. The Summary of agreed facts of the count of Rape which the accused pleaded guilty to are as follows:
   1. The accused is 31 years old. He is from Ubuna village, Arosi 1, Makira Ulawa Province.
   2. The complainant is Snorlyn Taimoi, she was 16 years old at the time of alleged offending.
   100. The accused Wilson Sumara was the stepfather of the complainant Snorlyn Taimoi.
   4. Both the accused and the complainant were residing at Tararainiu settlement, Ubana village, Makira Ulawa Province, when the incident occurred.
   5. On 14/1/24, the accused and the complainant with other village children were catching hens and roosters for their evening meal.
   6. They managed to catch a hen and a roster, however, the roster escaped and the accused ordered the children to go and search for it.
   7. During the search, the complainant asked the accused where the roster had escaped, and the accused lied to her pointing in a different direction from where the other children had gone.
   8. The complainant followed a different direction from the one indicated by the accused. However, the accused followed her, grabbed her right hand and pulled her into near bushes.
   9. On the bushes, the accused firmly held the complainant’s hand with one hand while using the other to remove his trousers then took out his penis.
   10. The accused played with his penis until it was erect and then told the complainant to hold it.
   11. The complainant refused and attempted to escape, but the accused grabbed her with both hands and pushed her to the ground.
   50. The accused knelt down between the complainant’s legs and struggled to remove her trousers and underwear.
   13. The accused manages to undress the complainant, he laid on top of her belly, pressed her to the ground, pushed his erected penis into her vagina and had sexual intercourse with her.
   14. While the accused had se with her, she was crying. After he satisfied himself the accused stood up from the complainant and told her to go and have a bath before returning home.
   15. The complainant return home and reported the matter to her mum, who then reported the matter to Kirakira Police.
4. I will now determine the appropriate sentence of the offence you pleaded guilty on. My determination will be guided by the sentencing guide lines the court of appeal made regarding sexual offences in this country. The Court of appeal is the highest court of this country and its decision binds the High Court.
5. The court has the benefit of submissions of the prosecution and the defence after you have taken your plea on 4/9/24.
6. The offence of rape that you committed carries a maximum sentence of life imprisonment pursuant to Section 136F Section 136 F) (1) (a) (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) A. However, I have power to impose a lesser term of imprisonment.
7. The Court of Appeal in R v. Sinatau^[1] set 6 years as the starting point for an uncontested rape case.^[2]
8. The court of Appeal in R v Sinatau^[3] also set 8 years as starting point for an uncontested rape case where the victim of the rape charge is a child.
9. The court of Appeal in Rv. Sinatau, the court also emphasised that their decision in Bade v. R^[4] confirm the overruling of the cases of R v. Ligiau, Dori and Soni v. R on the starting point sentencing tariff in this jurisdiction which have previously set starting points which are considered to be very lenient.
10. The setting of the new starting point of sentencing tariff of rape in R. Sinatau set out above recognises, reflects, addresses and response of the court for the need of stronger and more deterrent sentence of offenders to the prevalence of sexual offences against women and children which were at a shocking level reported in the report of the Solomon Islands Law Reform commission in June 2013 following a country wide study which resulted in the amendment of the Penal Code (Amendment) (Sexual Offences) Act 2016.
11. Both the prosecution and the defence submitted that R v. Sinatau is the authority of the proposition on the starting point of 8 years for sexual inter course involving a child.
12. In this case the complainant/ victim is a child. She was 16 years at the time of offending. Therefore, applying the starting point set out in R v. Sinatau, I set 8 years as the starting point of the sentence of the charge of rape against the accused in this matter.
13. The accused being the step father of the complainant, a position of trust pursuant to section 136C (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and that the offence of rape involved penile penetration was committed in the family home where it was supposed to be a safe haven for the complainant is not acceptable at all in the society and should be condemned in the strongest term.
14. After setting out the starting point my next task as the sentencing judge to determine on the facts before me is to find on the facts before me whether there are serious aggravating features in the sexual offending which I will require to uplift to the starting point.
15. It must be pointed out that in previous cases of sexual offences such as this present case, the court when considering aggravating features uplifts set starting points as 12 years and above range as starting point to condemn the worst type of offending.
16. The court of Appeal in Bade v. R^[5] state to the effect that serious aggravating features to be considered for uplifts from the sentence starting point is in term of years and not weeks or months.
17. The aggravating features of the offending in this case as submitted by the prosecution to which the defence acknowledged are present which I accepted and I also find on the facts before me be are:
    1. The age of the victim being 16 years old at the time of the offending and that the age would have been a fact well known to the accused as the father of the victim. I consider 2 years uplift on this aggravating factor.
    2. Age disparity: there is a significant age disparity of approximately 15 years. I consider 2 year uplift on this aggravating factor.
    100. Abuse of position of trust in that the accused is the step father of the victim. The accused being the step father of the complainant, a position of trust pursuant to section 136C (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The accused as the step father of the victim is expected to take care of the victim. The accused abused this trust. The accused committed the offence at the family home which should been a safe haven for the complainant. I consider 2 years uplift on this aggravating factor.
    4. Premeditated Act – The Accused lied/tricked, and directed the complainant to a different direction when she asked where the rooster went. This clearly showed that the accused had intention to the actions he did on the complainant. I consider 1 year uplift on this aggravation factor.
    5. Trauma/psychological impacts on the victims on the offending. On this aggravating factor I must always take judicial notice ^[6]of long term impacts of victims of sexual offending, especially young victims as in this case therefore I consider 2 years uplift on this aggravating factor.
18. For the above serious aggregating factors combined, I consider the appropriate uplift of 9 years to be added to the starting point sentence of 8 years I set above. This brings total of starting point after uplifts to 17 years, noting the maximum sentence is life imprisonment. The particulars of the uplifts for each of the aggregating factors are set out above.
19. I will now consider the mitigating factors in favour of the accused.
20. I accept the mitigating factors of your guilty plea, and the absence of any previous convictions.
21. I accept your statement to the court that you have realised that you are truly remorseful and have plead guilty as soon as you had the benefit of legal advice and when this matter was at the stage of plea.
22. I also note that your guilty plea saves courts time and resources and saves the complainant from the trauma of giving evidence in court.
23. In the circumstances I consider that the full one-third allowance is appropriate in this case for an early guilty plea.
24. I do not accept the mitigating personal circumstances as submitted by the defence. This is because the accused being the step father of the complainant, a position of trust pursuant to section 136C (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016 abused this trust.
25. I also do not accept the mitigation factors with regards to the personal circumstances because these factors should not be considered to reduce the seriousness of the conduct of the offending where the offending took place in a domestic situation, as in this case against a child (his daughter) where the vulnerability of the victim must be a significant factor of consideration.
26. I also do not accept the mitigation factor of young and youthfulness to grant the accused allowance in the charge of rape and circumstances I find of his case.
27. On the mitigation factor of co-operation with the police I consider that it is part of the consideration I have considered under early guilty plea above therefore make no further allowance to it.
28. Having regard to the mitigation factors I considered that one third allowance of the total starting point sentence of 17 years I considered above is 5.6 years and three months. That is 5 years 7 months.
29. Looking at this matter overall, I am satisfied that 12 years 7 months imprisonment is appropriate for the offending of rape against the accused.
30. Accordingly, I will sentence Wilson Sumara to 12 years 7 months imprisonment, which will commence on 4/9/24.
31. The Accused will be entitled to a further reduction in respect of any pre-trial custody time that the Correctional Authority may determine.

Orders

1. The accused is sentenced to 12 years and 7 months imprisonment.
2. The Accused will be entitled to a further reduction in respect of any pre-trial custody time that the Correctional Authority may determine.

By the Court
Hon. Justice Michael Pitakaka PJ

^[1] [2023] SBCA 38, Hansen JA, President, Gavara Nanau JA, Lawry JA at para 13 and 14
^[2] Ibid at para 12
^[3] Ibid at para 13 and 14
^[4] SICOA-CRAC, 17 of 2023, 13/10/23
^[5] Bade v. R [2023] SBCA 39 SICOA -CRAC 9017 of 2023 (13/10/23) Hansen JA, President, Palmer JA, Gavara Nanu JA
^[6] Rv. Bunaga