Regina v Kibo [2012] SBHC 158; HCSI-CRC 394 of 2011 (12 December 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 394 of 2011

REGINA

-V-

JABES KIBO

Hearing: 26 October 2012
Sentence: 12 December 2012

A. Driu (Ms.) and S. Ngava (Ms) for the Crown.
H. Fugui and E. Cade for the Defendant.

Palmer CJ.

You have been convicted of two counts of rape, a very serious offence in our Penal Code, which carries a maximum sentence of life imprisonment. These offences occurred over a period of a couple of days when the victim had been unlawfully taken captive into the bushes and raped.

The circumstances of the offence showed that you accosted the victim when she was alone, took her away without her consent and with threats to harm her into the bush where you had her completely under your control and then raped her without her consent. It was difficult for her to run away from you or to resist because of the unfamiliarity of the place where she had been taken to.

The range for this type of offences has now been recently revised by this court and the bar raised to reflect the concerns of the community and its prevalence in the community. The court has a duty to protect vulnerable members of our society including children from persons who are unable to control their sexual urges and think that they can get away with this type of crime. This type of activity is unacceptable in a civilised community.

Several groups in the community have been quite vocal about their concerns regarding the unacceptable increase of violence against women and children in the home and community. The courts are but one of the organisations in the community that have a direct responsibility to ensure that the concern is reflected in the type of sentences it imposes.

Taking into account the circumstances of this offence, the manner in which the victim was accosted and taken away against her will from the community and public into a remote place, kept in isolation and custody for a couple of days where the offences were committed and a conviction entered only after a trial, the sentence to be imposed would be 8 years.

I also take into account the following aggravating features.

(a) The age of the victim. She was only 13 years old and therefore considered a child in the eyes of the law. The court is duty bound to protect young children from being exploited by those older than themselves.

(b) Position of trust and responsibility. You were much older than her and therefore placed in a position trust. You also were not a stranger to her. She had seen you before for you were the younger brother of her step-father and therefore she would have expected you to be in a position to look after her rather than taking advantage of her age and position. To that extent there has been a breach of trust on your part towards a younger and vulnerable victim.

(c) You were drunk at the time you accosted the victim and continued to consume alcohol (kwaso), during that period. This added to her terror and fear of you.

(d) The offences were committed during a period of confinement in the bush which would have been terrifying for the victim. She could not escape even if she could because of her unfamiliarity of the place. You took her out on a Friday and eventually returned her to her home on early Tuesday morning. Throughout that period you also threatened to harm her if she screamed or resisted.

The aggravating features would increase the sentence to 9 years. On the other hand, I must also balance this with the mitigating factors in this case.

I note this is your first time to appear in court; you do not have previous convictions. A significant mitigating factor in your case is your age; that you were a young person when the offence was committed, you were 17 years old. For purposes of sentencing, I bear this in mind.

I note you have the support of your family and community and for purposes of rehabilitation that is something you can look forward to for the period that you will spend in prison and when you come out of prison. Their support will help make things easier for you re-settle back into society and ensure you do not re-offend or get distracted.

You have also indicated that you are very sorry for what you have done. That is the first step to rehabilitation.

Taking those mitigating factors into account, I am satisfied I can tailor sentence so that you will serve four years in prison. The remainder, you can serve in the community, provided that you keep the peace and be of good behaviour and do not re-offend. If however, you should misbehave or re-offend, then you will be liable to be re-arrested to serve the remainder in prison.

Orders of the Court:

1. Impose a sentence of 9 years.
   
2. Direct that you will be required to serve only four years; the remainder to be served in the community. If you misbehave or re-offend then you will be liable to be re-arrested to serve the remainder in prison.
   
3. The period spent in custody to be taken into account.
   

The Court.