Regina v Zama [2013] SBHC 121; HCSI-CRC 160 of 2013 (26 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 160 of 2013

REGINA

–v-

PETER JACK ZAMA

Hearing : 6 August 2013
Judgement : 26 August 2013

S. Ngava for the Crown
C. Rarumae for the Accused

JUDGMENT

1. The Accused is charged with two counts of rape and three counts of indecent assault, contrary to sections 136 and 141 (I) of the Penal Code respectively. The Accused entered guilty pleas to all the offences when he was arraigned on the 6 August 2013.
   
2. The Victims in these charges are very young girls. In that situation, Court will only refer to them in their Christian names and not their surnames to protect their identities. The names of the victims are therefore Edna, Everlyn, Janet and Monica.
   
3. The First victim is Edna who is 12 years old. On the 6 March 2013, Edna and Everlyn were at their village. The Accused first called Edna and took her about 50 meters away from Everlyn. He told her to remove her clothes and lay down on the ground. He took green leaves in both of his hands and put them in front of his penis and forced her to take the leaves. He then had sex with Edna. She was struggling but lay crying as he was angry. After having sex with Edna he took out his sperm and put it on leaves and told her that he would throw it into the sea. He then rubbed her body and blew into both her ears. He told her not to tell anyone about what he had done to her.
   
4. The second victim is Everlyn. Edna left the Accused and return to Everlyn. She told Everlyn that the Accused wanted to see her. When Everlyn went to the accused he took off her shirt. He then took something like ginger and rope from his basket and rubbed them together. He later rubbed them from her face to her breasts. He stopped and told her he was finished with her. Everlyn was 13 years old when he did these to her.
   
5. The Third victim is Monica. On 8 March 2013, the Accused told Monica, Edna, Iva and Everlyn that they were cursed with black magic so that no boy would like them. Then he called Monica to go with him to the road. When they got to the road he pulled her. He was carrying a small basket and a knife at that time. When they got to a coconut plantation, he told her to remove her clothes. He took a rope and tied it to his penis. He told Monica to put the rope on her forehead. At the same time he was touching her body, from her head, down to her breast and then to her legs. He forced her to lay down and he removed his trousers and had unlawful sexual intercourse with her. It was painful to her so she cried, but he told her not to cry, otherwise the black magic would not be removed from her. After having sex with her, he took a leaf and put his sperm in it and told her to throw it away in the sea. Monica was 14 years old at the time.
   
6. The fourth Victim is Ellen. On 9 March 2013, the Accused told Edna to go and tell Ellen and Janet to come to the house so that he can cure them, because they were tied with magic so that they would not be successful at school. So the two girls went to the house where the Accused was waiting for them. When they arrived, he told them to go into the house, one at a time, so that he will use custom to cure them. Ellen who is only 11 years old went in first. The Accused and Ellen went into the room where he told her to remove her shirt and she did. He then took a rope and ginger and rubs them together. He then rubbed them from her head to her breast then to her vagina. He then said Mill an old woman from the village had tied her with black magic. He told her not to tell her parents about what he did because it was for her own good.
   
7. The Fifth Victim was Janet. The Accused called Janet into the room. He told her to remove her shirt and he started rubbing the ginger and the rope from her head to her breast. After that, he pulled her into the next room and said the "thing" (custom) was in her vagina. He told her to lay down. After he separated her legs and sat between them. He then took the ginger and placed it in his trousers while he held his penis. When he turned to get something, Janet got up and ran out of the house crying.
   
8. The prosecution case shows that the following factors worsened the accused's offending: There were multiple victims; there was manipulation of the victims with false representations; there were lies to the victims that were they cursed and taken advantage of them for his own selfish desires; abuse of trust as he was related to Edna his first victim; abuse of the trust of all the victims which they placed on him believing that he was a custom doctor healing them of black magic. The offending was premeditated in that he prepared the ginger and the rope he used to rub on the victims; and finally there were huge disparities between the ages of the victims who are 11years to 14 years old and the Accused who is now about 48 years old.
   
9. In mitigation, he says that he is married with five children. His last child is still a baby. He is the breadwinner in his family by making and selling canoes. He pleaded to the charges laid against him at the magistrate court before he was committed for trial in this court. He is a first offender with clean criminal record. He maintained the guilty pleas and is accordingly convicted of the said charges by this court.
   
10. The Accused was about 48 years when he raped Edna and Monica on 6 and 8 of March 2013 respectively. On those dates, Edna and Monica were 12 years and 14 years old. A person who commits rape under section 136 of the Penal is liable to imprisonment for life. The evidence of these rape charges are in paragraphs 3 and 5 herein. He forced these two victims to have sexual intercourse with him. Both victims are minors who have not been medically examined to gather evidence of injuries in their sexual organs. It is noted though that Monica has experienced pain when the Accused had sexual intercourse with her. The ages of the victims in this case are important factors for sentencing the Accused. This is because sentencing will be at the upper range when the victim is very young (see Dole [1975] v. R 754. And so a marked discrepancy between the age of an Accused and a younger victim will also be regarded as an aggravating factor if the courts see it as indicating that the offender used his greater experience to overbear the will of the victim (see Butler [1971] v R . 892 and web [1971] v R 147)
    
11. The Accused was charged with the indecent assault on Everlyn, Ellen and Janet. They are all minors. The facts are provided in paragraphs 4, 6 and 7 herein. The victim's clothes were removed. The youngest of three victims is Ellen who is 11 years old. He rubbed a rope and ginger on her body including her vagina.
    
12. The Accused is now sentenced as follows: For the rape charge on Edna the sentences is 6 years imprisonment. For the rape charge on Monica 6 years imprisonment. For indecent assault on Everlyn and Ellen 2 years imprisonment. For indecent assault on Janet 1 year imprisonment.
    
13. Sentences are to be served as follows:
    
    1. The two sentences for rape are to be served concurrently. This means that the Accused will only serve a period of 6 years for them. The sentence is to start from the date the Accused was taken into custody at Rove Prison.
       
    2. All sentence for indecent assault charges are to be serves concurrently with the sentence of 6 years for rape.
       

THE COURT