Nickson v Regina [2009] SBCA 17; Criminal Appeal 11 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from a judgment of the High Court of Solomon Islands (Faukona J)

COURT FILE NUMBER: Criminal Appeal Case No. 11 of 2008 (On Appeal from High Court Criminal Case No. 328 of 2006)

DATE OF HEARING: 17 March 2009

DATE OF JUDGMENT: 26 March 2009

THE COURT: Goldsbrough P
Williams JA
Hansen JA

PARTIES:

Graeme Nickson
Appellant

V

Regina
Respondent

ADVOCATES:

Appellant: G. Brown
Respondent: R. Barry

KEY WORDS: Criminal Law – rape – sentence – young adult male – very young girl – serious injury – relevance of custom payment.

EXTEMPORE / RESERVED: Reserved

ALLOWED / DISMISSED: Dismissed

PAGES: 1 - 10

JUDGMENT OF THE COURT

The appellant was convicted after a trial of the offence of rape and was sentenced to 6½ years imprisonment. He appeals against sentence and a number of issues were raised for consideration by this Court.

Age of both the appellant and victim was relevant, and there was no clear evidence as to the age of either. The sentencing judge found the victim's age "was below 15 years" when raped, that she "had not had sexual intercourse in the past", and that she had not had her first menstrual period. He also said she was "a young girl of tender age".

There was no evidence of the date of birth of the appellant. Before the sentencing judge his counsel said in written submissions he was "very young – probably now aged about 19, but perhaps 17 at the time of offending." As at the date of the offence, December 2005, he was a married man living with his pregnant wife. His son was born early in 2006. The sentencing judge noted the appellant's counsel submitted he was still "juvenile". Relevantly in the course of sentencing the appellant the learned judge said:

"You are a young man by the look of you. Your counsel submitted that you were about 17 years at the time of offending; now you are about 19 years old. There is no evidence to prove that; it's just a guess. ...I will regard you as a young adult but married at the time of offending."

The circumstances of the rape were as follows:

"On one evening in December 2005 the victim was walking at night in the village when the appellant grabbed her by the hands and told her to go with him. She struggled to get away but the appellant held her tightly and she could not escape. The appellant used one hand to cover her mouth to prevent her screaming. He then pulled her to some bushes away from the village and placed her near a pig pen underneath a tree. He removed his trousers and ordered her to lie down. He ordered her to lift her skirt. She was frightened. The appellant then raped her causing her pain. He continued to penetrate her causing her more pain. The appellant then stood up and left. The victim started to bleed immediately which she was unable to stop. She felt weak and dizzy."

The sentencing judge noted that the appellant and victim lived in the same village and were "second cousins". He noted Solomon Island custom would condemn even consensual intercourse between persons in such a relationship. He then went on to make the following findings with respect to injuries suffered by the victim:

"...she sustained a ragged tear in her vagina. The tear is 5 cm in length, 4 cm wide, and about 1.5 cm deep. That completely penetrated the mucosa of the vagina down to the surrounding muscles extend from one cm from the entrance of the vagina to the furthest part of the vagina known as the fornix. The injury requires two deep stitches.

On arrival at the hospital the victim was suffering from severe haemorrhagic shock and heavy bleeding. Blood transfusion was immediately arranged and emergency examination under anaesthetic.

This clearly shows that what you did to your cousin is life threatening, and had it not for medical intervention she would have bled to death from her injury."

The judge went on to note that the victim would be affected emotionally, mentally, spiritually and physically for a long, long time.

As the sentencing judge said: "Children must be protected by the Courts, that those who commit this type of crime must expect to go to prison."

The appellant had no previous convictions and was unable to read or write. He worked mostly in the garden. The judge accepted the submission that the appellant had "strong family ties" and that his wife, son and parents visited him regularly in prison whilst on remand. It was also noted there was no pre-planning, no weapon was used, and the appellant only used such force as was necessary to overpower the victim.

One of the contentious issues on appeal was the manner in which the sentencing judge dealt with material indicating there had been some customary reconciliation between the families and that compensation had been paid. Counsel for the appellant tendered to the sentencing judge a handwritten, unsigned note stating that at a ceremony witnessed by villagers relatives of the appellant had paid custom compensation to the victim's family. Counsel for the prosecution in written submissions to the sentencing judge stated the "relatives of Nickson have reconciled with the relatives of the victim and made compensation during the period the accused has been in custody."

But as the prosecution pointed out, subsequent to that ceremony the accused had pleaded "not guilty" at trial and raised the positive defence that the young girl consented. The trial lasted some 11 days. That led the prosecution in written submissions to the sentencing judge to say: "Graeme Nickson has not demonstrated any contrition for his offending, and in this case the compensation paid does not evidence contrition on his part." In that regard he referred to what Ward C.J. said in R v Asuana (1990) SBHC52, a passage which will be referred to later.

The learned sentencing judge here stated that: "Custom practices as custom compensation has always been regarded as an important means of restoring peace and harmony in the communities. If it truly occurs, Courts should always give some credit for such payment in assessing sentence as a mitigating feature. It shows a genuine contrition on the part of the wrong doer ...".

But he then went on to reject the unsigned letter as "confirmation that custom compensations have been paid and I disregard it accordingly." He also said: "There is nothing in the submission expressing you being sorry or remorseful for the wrong you have done."

It is unfortunate the learned sentencing judge was not made fully aware that the prosecution accepted that relatives of the appellant had paid custom compensation. Counsel for the appellant in this Court submitted that if the sentencing judge had appreciated the true position he would, in view of his earlier observation, have given the appellant some credit as a mitigating feature.

But it is clear the sentencing judge was mindful of what Ward C.J. had said in Asuana. The following is the relevant passage:

"It should always be remembered that compensation is an important means of restoring peace and harmony in the communities. Thus the Courts should always give some credit for such payment and encourage it in an appropriate case.

Thus any custom compensation must be considered by the Court in assessing sentence as a mitigating factor but it is limited in its value. The Court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble.

The true value of such payments in terms of mitigation is that it may show genuine contrition and the scale of the payment may give some indication of the degree of contrition."

Given that this appellant was not present at the custom payment, and that he subsequently subjected the pre-pubescent victim who had suffered serious injury to a trial based on the defence of consent, the sentencing judge was clearly entitled to conclude the appellant had exhibited no remorse, no contrition. In those circumstances the custom payment did not evidence any significant mitigating factor. The rejection of the document tendered did not ultimately lead to any error in the exercise of the sentencing discretion.

On the hearing of the appeal counsel for the appellant conceded that, if the appellant was of an age at the time of the offence which called the Juvenile Offenders Act into play, section 16 of that Act could not be invoked given his age at the time of sentence.

The remaining question is whether the sentence imposed was manifestly excessive for a young offender.

In R v Ligiau and Dori (1985-6) SILR214 Ward C.J. laid down guidelines for sentencing in rape cases by citing the reasons of Lord Lane C. J. in R v Billam (1986) 1 WLR349. Those guidelines remain relevant. Significantly Ward C.J. endorsed the proposition that for rape committed by an adult without any aggravating or mitigating circumstances a sentence of five years should be the starting point in a contested case. This Court reiterated that in R v Niulifia (2005) SBCA 4. In the case before Ward C.J. the first accused pleaded guilty to the rape of a 12 year old girl and the second accused pleaded guilty to the attempted rape of a 10 year old. The pleas of guilty were regarded as showing remorse and contrition. Though threats to kill were made no more force was used than was necessary to commit the offences. The first accused was sentenced to 6 years for the rape and the second accused to 5 years for the attempted rape. In the latter case the Court of Appeal dismissed an appeal against a sentence of 6 years imposed after the accused was convicted of rape. Both the victim and the offender were adults and had been drinking before the offence. The man had a good work history, no previous convictions, no weapon was used and the victim sustained no physical injury.

After referring to those decisions the sentencing judge in this case adopted 5 years as the starting point.

The sentencing judge then referred to the aggravating and mitigating facts which have already been referred to herein. He stressed the life threatening serious injury which the victim suffered as a feature distinguishing this case from many others. He then went to say:

"However I have considered the fact that you are a first offender, a married man with wife and child to support. That the offence occurred in a spur of a moment, without pre-planning or motive. You are a lone offender without weapon or violence used. This has to be balance with age difference. You are a young adult and the victim was less than 15 years at the time of the offence, not a big margin, and that you caused life threatening injuries to the vagina of the victim through rough and forceful uncaring sexual intercourse with her without her consent. In any view this case is more serious than those cases submitted by Counsels."

The last sentence was a reference to a number of sentences imposed in the High Court for rape on which counsel for the appellant relied before the sentencing judge and again in this Court. Many of those sentences are difficult to reconcile with what was said by Ward C.J. in Ligiau and Dori and in the Court of Appeal in Niulifia and this Court regards those two cases as setting the appropriate guidelines.

The sentencing judge was correct in using 5 years as a starting point and as the aggravating factors here (particularly the age of the victim and the physical injuries she sustained) outweighed the mitigating factors a sentence of 6½ years was well within range.

The appeal should be dismissed.

Goldsbrough JA
Acting President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal