R v Peke [2021] SBHC 104; HCSI-CRC 176 of 2019 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Peke
Citation:
Date of decision:	10 September 2021
Parties:	Regina v Edwin Peke and Henry Talo
Date of hearing:	6 September 2021
Court file number(s):	176 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Edwin Peke is convicted of one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The said Mr. Edwin Peke is hereby sentenced to 4 years imprisonment. 3. The defendant Henry Talo is convicted of one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 4. The said Mr. Henry Talo is hereby sentenced to 4 years imprisonment. 5. I direct that the time spent in pre-trial custody is to be deducted from the sentences in orders 2 and 4 above. 6. Taking into account the time spent in pre-trial custody, both defendants are deemed to have served their respective terms of imprisonment. 7. I further direct that Mr. Edwin Peke and Mr. James Talo are to be released at the rising of the court. 8. Right of appeal
Representation:	Mrs Elma V Rizzu Hilly for the Crown Mr. Stanley Aupai for the Defendant, Mr Edwin Peke Mr. Allan Tinoni for the Defendant, Mr. Henry Talo
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offense) Act 2016 [cap 26] S 136 F (1) (a) and (b), Penal Code S 42 (2) [cap 26]
Cases cited:	Mulele v DPP and Poini v DPP [1985] SBHC 15, Regina v Phoboro [2013] SBHC 8, R v Asuana [1990] SILR 201

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 176 of 2019

REGINA

V

EDWIN PEKE AND HENRY TALO

Date of Hearing: 6 September 2021
Date of Decision: 10 September 2021

Mrs Elma V Rizzu Hilly for the Crown
Mr. Stanley Aupai for the Defendant, Mr. Edwin Peke
Mr. Allan Tinoni for the Defendant, Mr. Henry

SENTENCE

Bird PJ:

1. By information filed on the 24^th April 2021, these two defendants were jointly charged with two others for the offence of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the information, these two defendants had respectively entered guilty pleas. They were thereby convicted accordingly.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. It is that serious because it intrudes into the privacy of the complainant and without her consent and that you were reckless as to the lack of consent.
3. The facts of your case are that:

You are both from Ngamumblou Village, Temotu Province. Mr. Peke was 21 years old at the time of offending and Mr. Talo was 19 years old. The complainant is also from the same village and she was 16 years old then.
On the night of the 19^th October 2018, the complainant was at the burial ground at Ngamumblou Village. You were both drinking Saratoga in the same area. Mr Peke then approached the complainant and grabbed her hands and led her into the bush. The complainant was afraid and followed you. You led asked her for sex. The complainant laid down and you undressed her. You then laid on top of her and had sexual intercourse with her. You ejaculated on top of her.
After that sexual encounter, Mr Peke called Mr. Talo to also have sexual intercourse with the complainant. Mr Talo was already naked and threw the complainant to the ground. You then went on top of the complainant and had sexual intercourse with her. You also ejaculated on top of her. After that, the complainant got up and wore her clothes. You both left the area after each of you had sexual intercourse with the complainant.
The complainant had succumbed to your demand for sexual intercourse because she was afraid you might assault her.

4. Apart from the maximum penalty that is codified under our laws, the courts in the exercise of its discretion can impose a shorter term of imprisonment. Section 24 (2) of the Penal Code (cap 26) gives the courts discretion to impose a shorter term instead of the maximum penalty. In order for the courts to exercise that discretion, they must take into account the peculiar circumstances of each offending so that the sentences imposed are warrantied in each case. I am also minded to take note of the comments of Pallaras J in the case of Regina v Phoboro [2013] SBHC 8 in which he stated that in cases of sexual assaults, matters personal to the defendant are likely to have less effect on sentence.
5. I would also refer to the case of Mulele v DPP and Poini v DPP [1985] SBHC 15, [1985-1986] SILR 214 in which the Court of Appeal had set out guidelines in dealing with sexual assault cases. Apart from other considerations, the Court of Appeal had set out four factors that should be considered. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
6. Having noted those principles, I will discuss the aggravating features in your case. I am told by Mrs. Hilly for the crown, that the age disparity between you and the complainant is not substantial. For Mr. Peke, the age disparity between you and the complainant was 5 years, and for Mr. Talo, the age disparity between you and the complainant was 3 years.
7. I am told that you were both intoxicated at the time of offending. You must both understand that intoxication is not a defence to this case. In effect it is an aggravating factor that the court is entitled to take into account against you. Being drunk is not an excuse to commit offences.
8. I am further told that the offence being committed at night time on an isolated place is an aggravating feature against you. The court will not tolerate and do not condone what you did to the complainant. The complainant is 16 years old and the laws are also designed to safeguard and protect such people from abuse. They are susceptible and vulnerable to abuse due to their age.
9. On your behalf, it was submitted by Mr. Aupai of counsel and Mr. Tinoni of counsel that you have both pleaded guilty to the offending at first opportunity. I give you credit for your early guilty pleas. Your early guilty pleas not only show remorse on your part but that you have owned up to the offendings and you are willing to face the consequences of your actions. Your guilty plea also saves the court’s time and resources into conducting a trial into your case. It also save the complainant further stress in having to come to court and reciting what had happened to her.
10. I have also noted that you have both co-operated with the police during investigation which had then led to your early guilty pleas. I commend you both for adhering to the justice system of this country.
11. From the agreed facts, I have noted that Mr. Peke was 21 years old and Mr. Talo was 19 years old at the time of offending and you were both single. I have noted your youthfulness as a mitigating factor in your favour. Your youthfulness makes you good candidates for reconciliation.
12. It is noted that you have no previous convictions. This is the first time you are in trouble with the law. I sincerely hope that you have learnt from this offending and will not reoffend in future.
13. I have heard that you paid compensation to the complainant’s family. You paid $200.00 each as compensation and the matter is now settled according to custom. In the case of R v Asuana [1990] SILR 201, Ward CJ stated “It should always be remembered that compensation is an important means of restoring peace and harmony in the community. Thus the court should always give some credit for such payment and encourage it in an appropriate case”. I give you credit for payment of compensation and restoring peace and harmony in your community.
14. I have also noted that Mr. Peke was a student at Afutara Vocational School. You hope to continue and complete school in 2022. I urge you to continue pursuing your education for your own betterment and for your future.
15. I have noted that there was no weapon used in the commission of the offences. The victim also did not sustain any injuries.
16. I have also heard that you have been remanded in custody since the 21^st November 2018. To this date, you have spent a total of 2 years, 9 months and 20 days in pre-trial custody. That time spent in custody will be considered in your favour.
17. I have further heard that there has been a substantial delay in the prosecution of your case. The offence for which you are charged was committed on the 19^th October 2018. You were committed to this court on the 4^th January 2019. The information against you was not filed until the 29^th April 2021, more than 2 years after committal. I can say that a delay of more than 2 years just for the filing of the information is a substantial delay and flies into the face of the Constitution. The delay is a clear breach of section 10 of our Constitution and the court will not tolerate such a lengthy delay. See the comments of Kabui J in the case of R v Chris Mae Criminal Case No. 289 of 2005.
18. After having discussed all the circumstances surrounding the commission of the offence against you and the relevant laws applicable together with the case authorities cited, I hereby sentence you both to 4 years imprisonment. Time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the court

1. The defendant Edwin Peke is convicted of one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The said Mr. Edwin Peke is hereby sentenced to 4 years imprisonment.
3. The defendant Henry Talo is convicted of one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
4. The said Mr. Henry Talo is hereby sentenced to 4 years imprisonment.
5. I direct that the time spent in pre-trial custody is to be deducted from the sentences in orders 2 and 4 above.
6. Taking into account the time spent in pre-trial custody, both defendants are deemed to have served their respective terms of imprisonment.
7. I further direct that Mr. Edwin Peke and Mr. James Talo are to be released at the rising of the court.
8. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge