R v Kabu [2018] SBHC 82; HCSI-CC 574 of 2017 (6 September 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kabu
Citation:
Date of decision:	6 September 2018
Parties:	Regina v Luke Kabu
Date of hearing:	27 August 2018
Court file number(s):	574 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	The accused sentence to four years imprisonment. Order accordingly Any dates spent in custody to be deducted from this sentence
Representation:	Ms. Suifa’asia for Prosecution Mr. Kausimae for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code,(Section 136)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 574 of 2017

REGINA

v

LUKE KABU

Date of Hearing; 27 of August 2018
Date of Judgment; 6 September 2018

Ms Suifa’asia for Prosecution
Mr. Kausimae for Defendant

SENTENCE

Introduction

The accused Luke Kabu was charged with one count of Rape contrary to section 136 of the Penal Code. He pleaded guilty and accordingly convicted on the charge.

Briefly the agreed facts stated that the complainant Nose Leki arrived in Tulagi on 19^th August 2005 and stayed with her cousin, Thomas Sale and his wife Clera Sale. On that day at about 9 pm the complainant went to Vanita Bar. At about 1.00 am she was very drunk and assisted by John Pae and Clera Sale (who went to check the complainant) at the Bar. Complainant was led back to the house and was made to rest on the hammock. Clera went to attend her child in the house and she also felt asleep. John Pae and complainant went behind the toilet at the house and they had sexual intercourse.

At about 4.am Clera Sale saw the accused Luke Kabu at the house and he asked for smoke. Titus Rina was sleeping under the hammock and John Pae was assisting the complainant to lay on the hammock. Clera went back inside the house and slept and Pae then also left.

Between 4.am and 5.am the accused and Titus Rina took the complainant to the Forest area behind NPD labour line area.

Complainant was very drunk or intoxicated with liquor and slept. When she woke up she realise there were no clothes on her body or full naked and the accused was laying on top of her and had sexual intercourse with her. She turned around and saw Titus Rina sitting naked or no clothing on him at her right side. She asked of who brought her to the rubbish place. Accused replied that they brought her there and he said sorry to her.

Complainant was led back to the house and slept on a mat. When she woke up she felt pain in her vagina, nipples and backside. She checked the vagina with the hand and blood on her hand. Complainant had a bath and as she checked her vagina she pulled out a small black stick about one (1) inch long and a size of a finger ring and blood came out from the vagina.

On 23rd August 2005, the complainant reported the incident to Tulagi Police. Accused was interviewed by the Police on that date and he admitted that he had sexual intercourse with the complainant.

The following is noted and are the aggravating factors in this case. Victim was in an intoxicated state and helpless state, offence occurred at the time that can’t be noticeable by people as it was at the early hours in the morning. Without her knowledge as she was drunk and slept, she was carried or removed to the place of the incident or accused had sexual intercourse with her and without her knowledge.

Rape carries a maximum sentence of life imprisonment, hence it is a very serious offence. The victim was very drunk and as noted from the facts, the accused took advantage of her insobriety to commit his offence. Victim sustained physical injuries by felt pain in her vagina, nipples, backside and stick in vagina and they arose from the offence.

I give credit and take into account in this sentence the accused’s guilty plea to the charge laid against him and that he has no previous conviction. I also noted in this sentence the delay in bringing this case to court as the offence was committed in year 2005 or about 13 years ago.

Taking in account the factors, guilty plea and no previous conviction, it is my view that accused deserves a custodial sentence. The accused is therefore sentence to four years imprisonment. Order accordingly.

Any days spent in custody to be deducted from this sentence.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge