Regina v Nickson [2008] SBHC 21; HCSI-CRC 328 of 2006 (18 April 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 328 of 2006

REGINA

V

GRAEME NICKSON

(Faukona, J.)

Date of Submissions as to Sentence: 11 April 2008
Date of Sentence: 18 April 2008

Louise Kleinig for the Prosecution
Gabriella Brown for the Defence

SENTENCE

Faukona, J:

1. This court has found you guilty and a conviction entered against you on 22nd February, 2008 on one court of Rape, after trial. What requires now is to consider an appropriate sentence to impose against you.

2. The offence of rape is a very serious one. The maximum penalty as provided by Section 137[1] is life imprisonment. It is an offence of violence emanated and driven by lust to satisfy a man’s evil ego. This selfish attitude show less respect and regard to rights and feelings of others, and is likely to cause serious trauma which will haunt the victim for a long time.

3. There are numerous rape cases determine by this court from recent and not very distant past. From the cases submitted the sentences range from three years to six years imprisonment. There is no rule of thumb in sentencing in particular the offence of same nature, as each depends so much on the particular circumstances.

4. In R v. Ligiau and Dori[2], Chief Justice Daly adopted the guidelines set out in R v. Billan[3] when considering an appropriate sentence to impose. On page 2, paragraph 5, it stated:

"For a 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".

5. In this case you contested the charge and entered a plea of not guilty. After trial the court found you guilty of rape.

6. Before I decided on an appropriate sentence most suited to the circumstances of this case, I am obliged to consider the aggravating and mitigating factors and any other relevant factors as well.

7. I agree with your counsel that no violence or any weapon was used against the victim but you used such force as necessary to overpower her before raping her. It was a single act by yourself and it occurred in a spur of a moment. No pre-planning or motive in the commission of the offence. You did not involve in breaking in victims house, abducting her or keeping her in captive. In the absence of those aggravating features it did not go to establish that this particular offence should be regarded as being at the lower end of the scale in terms of seriousness. However I noted all of the aggravating features submitted by your Counsel comes from the list in R v Ligiau and Dori’s[4] case. For reason unknown she left out the age of the girl and the effect of such an act upon the victim, whether physical or mental. That has been picked up by the Counsel for the prosecution and submitted in the three major aggravating features.

8. Also noted from Ligiau and Dori’s[5] case the Court stated;

"Where anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point".

9. The same notion is expressed by the Court of Appeal in R v. Niulifilia[6].

10. I only need to find one, the least, of the aggravating features present, and then the figure should be higher than the suggested starting point. Meanwhile I opted for five years as a starting point.

11. In this case the court has found the victim’s age was below 15 years when you raped her. She had not had sexual intercourse in the past and had not seen her menstruation period yet. She is a young girl of tender age. Children must be protected by the courts, that those who commit this type of crime must expect to go to prison.

12. Both of you live in the same village in one small community. Both of you are related as second cousins. In Solomon Islands second cousins has strong blood ties and marriage would not be possible, or even to have sex. Solomon Islands Custom condemns such a relationship in a strongest term. You have violated that with disrespect. You go beyond the borderline of your worthy custom by raping your own cousin sister.

13. As a result of you raping her she sustained and ragged tear in her vagina. The tear is 5cm in length, 4cm wide, and about 1.5cm 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.

14. 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.

15. 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.

16. Looking at the measure of the injury, it is unbelievable, especially to a girl under the age of 15 years, and to an organ internally of the body. Indeed the repercussions of such would continue to affect her emotionally, mentally and spiritually and the trauma that will haunt her for a long, long time. The court in Ligiau and Dory[7] case said such is of a special seriousness.

17. What can then be said on your behalf? You are a first offender you have good standing record without previous conviction. That shows your behaviour and character in your community is good, until this offence, and I give you credit for that.

18. I also taken into account that you are not educated, unable to read and write, and mostly work in the garden and plant cocoa to earn your family’s living.

19. You are a young man by the look of you. Your Counsel submitted that you were about 17 years old at the time of offending; now you are about 19 years old. There is no evidence to prove that; it’s just a guess. If you are 19 years now then when you subtract 2 years and 4 months in custody, you left with 16 years and 8 months. That was suppose to be the age when the offence was committed and if your son is 2 years now, then you might probably married at the age of 16 years, or little more than 16 years, or below 16 years. In Solomon Islands age of 16 years is a kid incapable of being married. I could not belief it. I will regard you as a young adult but married at the time of offending.

20. There is a note from someone written on 17/10/07 attached to your Counsels submissions that custom compensation has been paid. 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 mitigating feature. It shows a genuine contrition on the part of the wrong doer as yourself.

21. However, the note is not a letter as regarded by your counsel. It is a photocopy note and was not signed by anyone. It would appear proper that one of the parent of the victim or a chief present at that time of the transaction write a proper letter confirming that they had received the compensation payment or witness that the transaction did occur, and the letter of conformity be signed.

22. Upon reading the note, the tone seems to be in a passive manner. Anyone, even someone living in Honiara can write such a note. Therefore I cannot accept the note as a confirmation that custom compensation has been paid and I disregard it accordingly.

23. Also noted that you have strong family ties and support, and your parents, wife and son often visited you in custody. And that your concern is to be reunited with your family and son who had missed your love, affection and support in the first two years. These are social obligations and whilst I take that into account it must be balanced with the need to ensure an appropriate sentence is imposed so that the element of retribution deterrence, protection or prevention and rehabilitation are not over looked in the process.

24. There is nothing in the submission expressing you being sorry or remorseful for the wrong you have done. You may have expressed it through custom compensation which I rejected the note tendered to the court which is doubtful and easy to manipulate.

25. Having said that I have accepted the 2 years and 4 months you spent in custody. It is an opportunity to recall your behaviour and try to reform yourself.

26. As I have said earlier sentences for rape ranges from 3 years to 6 years. And Counsels have submitted a number of cases for my consideration.

27. Regina v. Ligiau and Dori[8]

In this case there were two accused and two victims. One accused was charged for rape and the other for attempted rape. Victims were very young 10 years and 12 years. The two accused were older men. They threat to kill. They pleaded guilty to the charges and had no previous convictions. They were sentenced to six years (rape) and 5 years (attempt rape).

28. Regina v. Alualu and Bakeloa[9]

Two accused convicted after trial for gang raping a 15 year old girl. Both appeared to be under 18 years of age. Good character with no previous conviction. The victim is a neighbour to both accused and living in the same village. Both were imprisoned for 3 years each.

29. Regina v. Raha[10]

Violence was used with punching and injuries. There was additional indecent act. The accused was a police officer, a position of authority towards the victim who was his house-girl. The offence happened in her own bed room at the house of the accused where she worked. Accused was convicted after trial and has no previous conviction. He was sentenced for 3½ years.

30. Regina v. Dausina[11]

The victim was the accused 16 years old daughter. Threats were made and the victim experience much discomfort, pain, emotional, mental and spiritual disturbance and trauma. The accused was in a position of trust in religion, custom and law. He was drunk at the time of offending and the incident occurred in a spur of a moment. He pleaded guilty and has no previous convictions. Sentenced 4 years in prison.

31. Regina v. Su’umania[12]

The accused pleaded guilty to the charge. The victim is a teenage school girl. The accused was a matured man who pretended to be a police officer and threatened her he would arrest her. He tricked her and lies to fool her. He was treated as a person of authority. He has previous convictions but not relevant. Sentenced to 5 years in prison.

32. All those cases refer to has indicated that each case has to be dealt with on its own fact. However none of them prescribed physical injuries sustained by each victim, like this one, a life threatening injury. Physical violence was used in Raha and Iroi’s cases but there is no mention of the level of injuries. Even in Ligiau and Dori where the victims were much younger than the victim in this case, there were no injuries mentioned.

33. 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.

34. Having considered those facts, in my view, a sentence of 6½ years is appropriate. Period spent in custody be taken into account with additional 3 days which the accused escaped from custody. In other words sentence should commence on 14th November 2006.

35. You are sentenced to 6½ years imprisonment!

THE COURT

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^[1] Penal Code
^[2] [1985-1986] SILR 214 Page 2
^[3] [1986] 1 WLR 349
^[4] [1985-1986] SILR 214, Page 2 & 3.
^[5] Ibid
^[6] [2005] SBHC 4; CA - CRAC 26 of 2004 (4 August 2005)
^[7] [1985-1986] SILR 214
^[8] [1986] SBHC 15
^[9] [2005] SBHC 106
^[10] [2005] SBHC 69
^[11] HCSI - CRC 7-107
^[12] [2004] SBHC 78