Regina v Neke [2011] SBHC 97; HCSI-CRC 299 of 2010 (16 September 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

-v-

NELSON NEKE

Date of Hearing: 12th September 2011
Date of Judgment: 16th September 2011

Mr. D. Nimepo for the Crown.
Mr. W. Ghemu for the accused.

SENTENCE

Apaniai, PJ:

1. The accused, Nelson Neke, was charged with 1 count of rape. He pleaded guilty to the charge and was accordingly convicted.
   
2. The accused is from Kuata village, Guadalcanal Province, while the victim is from Kologhona village, also Guadalcanal Province. It is claimed that they are distant relatives.
   
3. The victim was about 14 years old at the time of the offence on 22nd December 2008 while the accused was 30 years old.
   
4. The agreed facts show that at about 6.30pm on that date, the victim went to church at her village for evening prayer. After prayers, she stayed on for singing practice. Before the singing practice started, she was requested by a Ms. Adelina to go and collect a prayer book from Adelina's house which was not far from the church. That was about 8pm.
   
5. The victim left and collected the prayer book as requested and, on her way back to the church, she met the accused on the road. The accused then asked her to accompany him to the victim's house as the accused wanted to see her father.
   
6. The victim went to the church and gave the prayer book to Adelina and then returned to where the accused was waiting for her. They then walked along the road towards the victim's house. The accused was drunk at that time.
   
7. On the way, the accused grabbed the victim's hands and told her to go with him to a cocoa plantation. The victim refused whereupon the accused pulled the victim and carried her into the cocoa plantation where he forcibly had sex with her. After the incident, the victim was unable to stand and had to be assisted by the accused to stand on her feet. The victim was a virgin at that time.
   
8. Mr. Ghemu of counsel for the accused submits that while a custodial sentence is inevitable, whatever term of imprisonment is imposed, a reduction of between 25 to 30% discount should be given to the accused for his guilty plea, his remorse and his payment of compensation to the victim and her parents. Mr. Ghemu further submits that the time spent in custody while on remand should also be counted towards the accused's term of imprisonment.
   
9. Mr. Nimepo of counsel for the prosecution, while accepting these mitigating factors, says however that such factors must not outweigh the seriousness of the offence. He says that any sentence imposed must have a deterrent effect.
   
10. I have taken into account the submissions of counsel and I am grateful to counsel for their submission and for the authorities which they have cited in support of their submissions.
    
11. I need not repeat what has always been said about the seriousness of the offence of rape and the reasons why the law has regarded such offence as serious. The seriousness of this type of offence is reflected by the fact that in all previous cases of rape, imprisonment was inevitable and the fact that the sentences imposed have ranged from 3 to 8 years. The circumstances of each case were deciding factors in determining the actual number of years to be spent in jail.
    
12. In my view, the case of R v Ligiau & Dori[1] ("Ligiau") has established the starting point in regards to the length of time to be spent in jail for rape cases. In that case, the following guidelines have been laid down:-
    

[1] For rape committed by adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case.

[2] Where rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years.

[3] The crime should be treated as aggravated where any of the following factors are present:

[a] violence is used over and above the force necessary to commit the rape;

[b] a weapon is used to frighten or wound the victim;

[c] the rape is repeated;

[d] the rape has been carefully planned;

[e] the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

[f] the victim is subjected to further sexual indignities or perversions;

[g] the victim is either very old or very young;

[h] the effect upon the victim, whether physical or mental, is of special seriousness;

[i] where any one or more of these aggravating features are present, the figure should be substantially higher than the figure suggested as the starting point.

13. In Ligiau, the accused was convicted of the rape of a 12 year old victim and sentenced to 6 years imprisonment. In that case, the accused had pleaded guilty to the charge and was a first offender.
    
14. In R v Gere[2], the accused was found guilty of raping his step-daughter, who was then 16 years old, and sentenced to 3 years imprisonment. In that case, the accused had threatened the victim with a bush knife. He was a first offender.
    
15. In R v Nickson[3], the accused was found guilty of one count of rape and sentenced to 6½ years imprisonment. The victim was

15 years old at the time of the offence and had suffered injury to her vagina as a result of the sexual act committed on her. The accused was a first offender.

16. In R v Alualu & Bakeloa[4], the accuseds were each found guilty of raping a 15 year old girl and were sentenced to 3 years imprisonment each.
    
17. In R v Dausina[5], the accused pleaded guilty to one count of raping his 16 year old daughter. He was sentenced to 3½ years imprisonment.
    
18. In the present case, the accused is charged with 1 count of rape. I am satisfied that this case has a number of aggravating features. These include the age of the victim (14 years) when the offence was committed, the age difference between the accused and the victim (16 years), the difference in physical strength between the accused and the victim and the shock received by the victim as a result of the manner in which the accused has handled her. Furthermore, the accused had violated her womanhood in that she was at that time a virgin.
    
19. Having regard to these aggravating features and the principles established in Ligiau, it is my view that a sentence of 5 years is an appropriate starting point in this case. From that starting point, discounts will then be given in the light of the mitigating factors which have been submitted on behalf of the accused.
    
20. These mitigating factors include the guilty plea, the past clean record of the accused, the compensation paid by the accused and the remorse expressed by the accused. I have taken these factors into account. However, it is also my view that there is a need for a general deterrence in respect of offence of this nature and the sentence must also reflect that fact.
    
21. Having regard to these matters, it is my view that the appropriate sentence in the present case is a prison term of 4 years.
    
22. Accordingly, the accused is sentenced to 4 years imprisonment commencing on the date when the accused was taken into custody.
    

THE COURT

____________________________
Justice James Apaniai
Puisne Judge

---

^[1] [1985-1986] SILR 214
^[2] [1981] SILR 145
^[3] CRC 328 of 2006
^[4] [2005] SBHC 106
^[5] CRC 7 of 2007