R v Murray [2023] SBHC 135; HCSI-CRC 258 of 2023 (17 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Junior Niki Murray
Citation:
Date of decision:	17 November 2023
Parties:	R v Junior Niki Murray
Date of hearing:	16 November 2023
Court file number(s):	258 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. An imprisonment sentence of 12 years was imposed on the Defendant. Sentence to serve commencing from today, the date the sentence is delivered. 2. There is no evidence regarding time spent in custody hence no order as to that. 3. The issue of delay is not an issue in this case, hence no order of any deduction as to that.
Representation:	Mr A Kelesi and N Tonawane for the Crown Mr C Rarumae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016 S 136 F (1) and (b),
Cases cited:	R v Ramo [2013] SBCA 9, R v Tasia, R v Bonuga [2014] SBCA 22, R v Liufirara [2023] SBCA 10, R v Pige [2023] SBCA 36, Nickson v R [2009] SBCA 17

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 258 of 2023

REX

V

JUNIOR NIKKI MURRAY

Date of Hearing: 16 November 2023
Date of Sentence: 17 November 2023

Mr A Kelesi and N Tonawane for the Crown
Mr C Rarumae for the Defendant

Sentencing after conviction

Introduction.

1. The Defendant Mr. Junior Niki Murray is convicted on 16^th November 2023 after trial of one Count of rape contrary to section 136 F (1) and (b) of the Penal Code, as amended by Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The offence of rape pursuant to S. 136 F carries the maximum penalty of life imprisonment.
3. The Defendant is from Opela village, Roviana Lagoon, Western Province. He was 29 years at that time of offending. He had a defector relationship with Vamali and they have one child. His education reached tertiary level at USP Centre in Honiara but was unable to complete his studies. He was employed by Eagon Company in the Forestry Department based at Arara Camp, New Georgia.

Relevant facts.

4. The Defendant and the victim were both employed by Eagon Company. The Defendant was based at Arara Camp and the victim was based at Putagita veneer milling camp.
5. Both knew each other well. The reason being both were employed by one Company, besides that both were friends at FB and often chat to each other.
6. On 29^th May 2022, at about same minutes after one am, the Defendant met the victim at a point mark X1 in the draft sketch plan, Exh “P2”at Putagita camp.
7. Both took the route marked in the sketch plan from point X1 to sport X4. At X4 the Defendant subsequently had sexual intercourse with the victim without her consent, or without her free-will, or without any agreement.
8. During the course of sexual intercourse the victim felt bad and felt that her vagina was bleeding. Later she felt that her lower abdomen was severely pain.
9. Early morning of that day she went to the Clinic and she was referred to Goldie Hospital. She was examined by Dr. Raymond Karay who eventually endorsed a report of his findings on the same date of incident.
10. The Dr. found out that there was a post comital vaginal tear at 9 o’clock position in the wall of her vagina. The tear was treated with a stitch and was given antibiotic of close cloxcillin and two tabs of fethol orally. She was treated at the theatre. According to the Doctor, the injury can be led to potential mobility or mortality if delay treatment. That simply cannote the injury is serious.

Principles in sentencing:

11. Despite increase in knowledge and technology in the modern world, traditional principles purposely formulated to assist the Court in their discretion to uphold the rule of law and justice in each case. That has not been varied over the times.
12. In this case there are two important aspect of sentencing policy. One is punishment and the other is deterrence.
13. Punishment is relevant considering the maximum sentence for this type of offence is life imprisonment.
14. The core purpose of punishment is to ensure the Defendant learnt and realize his wrong doing and because of prevalent occurrence of such offences within the communities of this Country.
15. Whilst punishment is permitted in law, the Court still has to strike an appropriate sentence that equated to the facts surrounding the committal of the offence, see R V Ramo^[1] and the upper limit of sentence, see R V Andrew Tasia^[2],
16. The searched aspect of sentencing is deterrence. The Court is obliged to consider general and personal deterrence.
17. General deterrence become effected when the Court sends a message to public at large or the community from which the Defendants comes, that if any one wish to put his legs in the shoes of the Defendant, the Court will deal with him seriously. The Courts have been well aware of the trend and will offer no leniency to any liked minded person.
18. This sentence will reflect hat law created by Parliament is aimed at protecting young girls and women form evil minded man who have desire just to fulfill their demoniac ego with no respect to others.
19. To curb the unacceptable situation, Parliament has responded by increasing the maximum penalties for rape and other sexual violence offences. The maximum penalty demonstrates the gravity of the offence. The motive behind the new amended legislation is to deter and condemn those who front the Court for the offence of rape.
20. The communities in this country have condemned their criminal behavior for so long, and the Court must respond positively to their cries, by dealing seriously with and sentencing offenders who degrade the decency, dignity and good moral standing of girls and woman.

Aggravating features:
Psychological and emotional effect:

21. There is no doubt the offending has caused psychological and emotional effect on the victim which brought shame to her and her family – see R V Bonuga^[3].
22. In the case of R v Ramson Liufirara^[4], the Court of Appeal stated “we are satisfied in all case of sexual offending, while there may not be observable harm creates ongoing issue for complainant is well documented and can be taken judicial notice of:

Physical harm:

23. The medical report clearly shows the victim has a profuse Vaginal bleeding associated with severe low abdominal pain which on speculum noted a laceration at the 9 o’ clock position which was stitched.
24. The injury may be temporal but the suffering and pain endured is massive which was not expected, but cause by the Defendant who had no respect to the dignity and existence of the victim.

Offence Committed at night:

25. There is no dispute the offence was committed about to 4 o’clock in the early hours on 29^th May 2022, under the cover of darkness. There is no dispute as to that, it is on aggravating factor itself.

Intoxication:

26. The question as to whether the Defendant was under the influence of alcohol cannot be verified. In the main evidence the Defendant stated he was not drunk. During submission he claim he was drunk. The change of evidence had contradicted himself.
27. However the importance of it all is that he had raped the victim without her consent.

Pre-meditation:

28. The Defendant who had completed his job at Putagita camp, returned to Arara Camp and then returned to Putagita at Midnight. Inference can be drawn that he returned not to seek some funds from his sister, but to find a time to meet the victim.
29. Before the rape action the Defendant told the victim that it was good they met. Simply they have been chartting and time had come to privately meet each other.
30. After sexual intercourse the Defendant left to his sister’s house and slept. He was careless of the victim. All he desired had been fulfilled, whatever prompted later was not of his worry.
31. In fact he planned to meet the victim that night or was anticipating to meet the victim so he returned from Arara Camp.

Mitigating Features:

32. What else can be said on behalf of the Defendant? He has no previous conviction, no record of criminal involvement against his name is the past.

Reconciliation and payment of compensation.

33. There was a reconciliation and payment of $500.00 compensation to the victim’s mother on 7^th July 2022, held at Munda Police Station.
34. The truth of that occasion is not denied. However, the Court of Appeal in R v Pige^[5], stated that, “we accept the law of S. Islands has always recognized custom, and payment of compensation has always been part of the custom.
35. In the case of Nickson V R^[6] the Court stated that compensation is an important means of restoring peace and harmony in the communities. Therefore Court should always give some credit for such payment and encourage it in an appropriate case.
36. The Court further stated compensation must be considered in assessing sentence as mitigation factor but it is limited to value. The Court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble.

Defendant’s personal circumstances.

37. Matters personal to the Defendant as he is married man with wife and children, that he is the only bread winner etc.
38. In the recent case of R V W. Ba’ai^[7] the Court of Appeal stated, “...as this Court said previously, the personal circumstances of an offender play little part in mitigation in offending of this sort.
39. In addition, personal circumstances and issues the Defendant is obliged to consider before deciding to commit a crime. They are priority considerations for a husband as the heard of the family.
40. When a perpetrator ignores his commitment and commits crime, it is absurd to return to the basic necessary which have been forgotten at the first place, You cannot come later and show to the Court your personal commitments which you had ignored.

Starting point.

41. In respect of starting point both Counsels submit by making reference to the recent judgment in the case of Bade V R, which the Court of Appeal set out a starting point. In paragraph 35, the Court stated, “Having consider all of the matters, we consider the starting point for a contested rape should be 8 years imprisonment.
42. That paragraph is so simple in its constructiveness without any ambiguity. Therefore the courts are bound to follow.
43. Previous starting points drawn by other case authorities is now abandoned. For instance the Bade case also over-rule the cases of Ligiau and Dori and Soni and set a new starting points.

The Penalty.

44. I have listed from paragraph 23 to paragraph 31, above, all the aggravating features which I consider in the current case.
45. The gravity of the act of rape performed by the Defendant was serious. The sexual intercourse has done without the consent of the victim. As a result the victim sustained injury which threatened her life should she delay in seeking medical attention?
46. After considering those aggravating factors I accelerate the figure from 8 years starting point to 13 years.
47. To arrive at an assessable and justifiable sentencing figure, I do consider the mitigating features listed from paragraph 32 to paragraph 39 as above.
48. The major mitigating feature among all is that the Defendant has no previous conviction. I give credit to him and other mitigating factors as well.
49. Having done so I deduct 1 year from 13 years, which comes down to 12 years. I therefore impose an imprisonment sentence of 12 years on the Defendant.

Orders.

1. An imprisonment sentence of 12 years was imposed on the Defendant. Sentence to serve commencing from today, the date the sentence is delivered.
2. There is no evidence regarding time spent in custody hence no order as to that.
3. The issue of delay is not an issue in this case, hence no order of any deduction as to that.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013)
^[2] HCSI-CRC 68 of 2022.
^[3] [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014).
^[4] Criminal Appeal Case NO. 20 of 2022 (On appeal from High Court Criminal Case NO. 94 of 2021.
^[5] SICOA CRAC 901 of 2023.
^[6] [2009] SBCA 17, Criminal Appeal 11 of 2008 (26 March 2009)
^[7] NO. citation supplied.