Regina v Zebettie [2014] SBHC 141; HCSI-CRC 46 of 2012 (8 May 2014)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)
Criminal Case Number 46 of 2012

REGINA

V

KELVIN ZEBETTIE

Hearing: 1st May 2014
Judgment: 8th May 2014

N. Kesaka (Mrs.) for the Crown;
B. Ifuto'o and R. Olutimayin (Ms.) for the Defendant.

Palmer CJ.

1. The defendant has been convicted of one count of indecent assault and one count of rape following a trial. The offence of indecent assault carries a maximum sentence of five years while rape a maximum sentence of life imprisonment.
   
2. The starting point for rape by an adult as set out in R. v. Ligiau and Dori[1] and which has been recently endorsed by the Court of Appeal of Solomon Islands in Soni v. Reginam[2] where there is no aggravating or mitigating features in a contested case is five years.
   
3. I am satisfied that the starting point of five years for the offence of rape applies in this case. I am satisfied too that present in the circumstances of this case are a number of aggravating features.
   
4. First, the victim a child of 14 years at the time of commission of offence was also a student while the defendant was a married man, who at the time of commission of offence was 23 years old. The relatively young age of the victim is an aggravating feature for obvious reasons. The sentence to be imposed must reflect the seriousness and revulsion with which the public holds against this type of offence and the need to protect young children. Young children often look up with respect on persons older than themselves, tend to be more compliant and follow or obey instructions without questioning. The capacity of their mental faculties and level of maturity are still in their developmental stages. Their level of resistance is low, are easily intimidated or frightened at any slight indication of threat, harm or violence to their person. The defendant took advantage of this age difference and exerted manipulative control on the victim to cause her to do his bidding.
   
5. The age of a person normally indicates his growth, level of maturity, knowledge, experience and understanding and places an older person not only in a position of authority but trust, to be able to lead and direct someone younger. An older person is usually regarded or expected to be more responsible and accountable. The defendant took advantage of this age difference and the power and authority it conferred on him to commit the offences in this case.
   
6. As well, the wife of the defendant is related to the victim and therefore places him in a position of trust and responsibility. He took advantage of that to force the victim to obey his bidding as well.
   
7. Secondly, the defendant was under the influence of alcohol at the said time when he committed the offence, using it as a cover or pretext to effect domineering control on the victim and force or compel her to follow his demands. The victim told the court she was frightened of the defendant, the fact he was also drunk at that time would have increased her fear of him.
   
8. Thirdly, the defendant used force and threats of violence on the victim to assert his will over her and control her. He threatened to hit her mouth and to report her to the school authorities so that she could be expelled. Initially he accused her of trespassing or "going over the boundary" when he saw her sitting at the ladder of her cousin's house and then pulling her to see one of the teachers under the pretext of reporting her. He also threatened to report her to the school authorities for having a boyfriend, all under the pretext of coercing her to do his bidding. Again he took advantage of his domineering position to instill fear and compliance. It was clear the victim became frightened and intimidated and followed his demands out of fear. The defendant was aggressive in his approach, the tone of his voice and his behavior. The victim told the court how he held her hand and pulled her along so that she could not go or run away. This would all have been a terrifying experience for such a young victim, not to mention the indignities committed thereafter including the rape.
   
9. I am satisfied these would raise the length of sentence to one of eight years for the rape charge.
   
10. For the indecent assault charge, this should attract a sentence of 2 years.
    
11. I do bear in mind however, the mitigating factors in this case, that the defendant is a first offender, the element of delay of some two years and his personal circumstances. I also bear in mind the totality principle and to ensure that an appropriate sentence is imposed for both offences. I note too that both offences occurred out of the same transaction, that is, the time gap was so close they should be regarded as arising out of the one transaction. Accordingly I am satisfied the sentence of 8 years for the rape is to be reduced to one of six years and the sentence of indecent assault of two years to be made concurrent to the sentence of rape.
    

Orders of the Court:

1. Impose sentence of 2 years for the indecent assault charge, to be served concurrent to the sentence imposed for the rape charge.
   
2. Impose sentence of 6 years for the rape charge to be served with immediate effect.
   
3. Any period spent in custody to be taken into account.
   

The Court.

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^[1] [1986] SBHC 15 SILR (3 September 1986) Ward CJ
^[2] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).