R v Tembere [2023] SBHC 157; HCSI-CRC 481 of 2017 (1 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tembere
Citation:
Date of decision:	1 December 2023
Parties:	Rex v Ambrose Tembere
Date of hearing:
Court file number(s):	481 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. On the Counts 1, 2, 3, and 4 to be served concurrently. 2. Accused to serve 12 years imprisonment. 3. Time spent in custody to be deducted from the sentence. 4. No further orders.
Representation:	Manu O & Mutukera M for the Crown Weago S for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136 F (1) (a) and (b)
Cases cited:	Bade v R [2023] SBCA 39, R v Ligiau and Dori [1986] SBHC 15, Regina v Maenisoa [2011] SBHC 25,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 481 of 2017

REX

V

AMBROSE TEMBERE

Date of Judgment: 1 December 2023

Manu O & Mutukera M for the Crown
Weago S for the Defendant

Lawry; PJ

JUDGMENT

Introduction

1. You, Accused Ambrose Tembere was convicted at the trail on four counts of rape contrary to section 136 F (1) (a) and (b) of the Penal Code (Amendment (Sexual offences) Act 2016. You are now before the court for sentence on the four counts of rape.

Brief Facts

2. The incidents occurred in 2016 when the accused Tembere told the victim with custom medicine for complainant to loss or leave her husband as the victim wanted run away from the husband. In the process of making custom medicine to her and defendant also told the victim that he would a find job for her at Kauvare night-club.
3. The defendant in those times at the Hill top above Savo Market area (White River), in a room at Kauvare nightclub, the roadside of Tangahai School Tembere in the process of performing the custom medicine to her used or had sexual intercourse with the complainant.
4. The fourth incident occurred when defendant pulled the complainant to a room threatened the complainant with a knife and he had sexual intercourse with her.

Maximum Penalty

5. The maximum penalty for the offence of rape is liable to imprisonment for life.

Crown’s Submission on the sentence

6. Crown Counsel Manu submits for the court to take into account the aggravating features of disparity age of accused of 46 years and victim 26 years, the used of custom to lure the victim on the four occasions of he had sex with her, repetition of offending and no respect for young girls.
7. Counsel Manu submits that with the prevalence of this type of offence in our communities there is the need of general deterrence thus to protect young girls from this activity by older men and themselves. She stated that there should also a specific deterrence to apply to in this matter and to send a message to offenders in the country. Our laws makes it an offence on men’s approach for sexual intercourse with girls without their consent.

Defence’s Submission on the sentence

8. Counsel Waego for the Defence raised the time spent in custody as mitigation and asked the court to take into account the 3 years, 1 month and 7 days until he was released on bail in 2019, a matter for consideration by the after sentence. His client Tembere was remorseful for his action.
9. Defence Counsel Waego stated and referred to the new starting point of 8 years for contested case set by the Court of Appeal in the case Bade v R ^[1] but he submitted whatever the sentences that will be imposed for his client should run concurrent. Defence counsel submits that counts 1, 2 and 3 offending occurred within the same month of the same year and Count 4 occurred on another month and the defendant was a reoffender. The offender and victim were the same persons. His client in the process of the custom conduct to the victim committed the offences.

The starting Point

10. For the charge of rape, the Court of Appeal had always emphasis or refer to R v Ligiau and Dori^[2] on the starting point of contested rape with 5 years however; the Court of Appeal in the case Bade v R^[3] had increased the starting point of contested case to 8 years when the court state at Para 35:
    • “35.Having considered all of these matters, we consider the starting point for a contested rape should now be eight years imprisonment. Where there is a guilty plea it should be six years. Even a peremptory reading of the authorities we have referred to above will show that the aggravating uplifts will frequently take starting points into the 12 year and above range. That is an appropriate starting point to condemn the worst of this type of offending”.
11. By the circumstances and notably the vulnerability, deal of luring with custom treatment and promise to find a job for her, the starting for this accused should be 10 years.
12. From the both counsel submissions, any sentence the court considers appropriate for the four counts of rape relate to the same accused and victim. The evidences and facts disclosed the accused lured the consent of the victim with the custom medicine to be perform on her for numerous of days which accused in 4 days actually performed and had sex with the victim on those times.
13. The sad thing is the victim was thinking that she would be treated by the accused’s medicine but ended up with the accused had sexual intercourse with her. The men’s so-called custom medicine dealing as with this victim and or cures that ended up with sex with their female patients seems to be regular these days in our communities.
14. Rape is a very serious offence and often referred to by every reasonable people as done or committed by selfish desire persons. The seriousness of the offence surely is reflected in the law that provide life imprisonment as the maximum sentence for rape.
15. In this sentence, I take into account the accused’s age and noted his remorse of his action.
16. For the aggravating features, there is a disparity age of 20 years, the used of custom medicine treatment to lure the victim the occasions and then had sex with her, repetition of offending and no respect for young girls or female for that matter. These features makes and in particular with the luring with the so-called custom treatment to my view will deserve or earn increase of the sentence for accused Tembere on the four counts of rape.
17. The so-called custom treatment to females with sexual offence is becoming common in our communities and in particular with the abusing of very minors or small girls. Any sentence to be imposed should deter the accused and any other men who intend to involve with this sort of activities.
18. Taking into account the facts, mitigation and aggravating features and I am satisfied and sentence you Mr Tembere on the charges of rape as follows:
    • Count 1 - 11 years
    • Count 2 - 11 years
    • Count 3 - 11 years
    • Count 4 - 12 years
19. The accused Tembere has been sentenced on the four counts for lot of years and the issue now is whether the sentence on the counts should run consecutive or concurrent.
20. By the totality, the 45 years seem excessive for this accused and consecutive sentence would not be a possible consideration for this case.
21. Defence Counsel Waego referred to the sentence in the case Regina v Maenisoa^[4] with four counts of rape. Although the offences were committed on different dates and the accused was given concurrent sentences. He said the presiding judge made reference the book by Andrew Ashworth on Sentencing and Criminal Justice^[5], and he stated in para 20, I quoted:
    • “20 The general principle is that offences committed concurrently ought to receive concurrent sentences. Generally, offences are concurrent when they form part of a single transaction. The difficulty lies, however, in determining what is a "single transaction". It has been said^[6] that offences may be treated as part of a single transaction when they are proximate in time or where they are proximate in the type of offences and where they involve the same victim. However, each case must depend on its own circumstances”.
22. Defence Counsel urged the court to adopt the Regina v Maenisoa case (noted above) as any sentence or consecutive sentence that would be imposed will have severe outcome.
23. Crown Counsel Manu submitted that although the offences involved the same accused and victim however the incident occurred all four separate times with Counts 1, 2 and 3 on the same month. She submits that the court should consider consecutive sentence. She recognize a severe outcome with the consecutive sentence but leaves that to the court.
24. As noted from the both counsel’s submissions on the counts of rape, it involved the same accused and victim. The offences were said to be a serious or continuation the so-called custom treatments performed by the accused to the victim.
25. With the above and the totality or severe out in the sentence, I am satisfied that these are good reasons to order the accused Tembere to serve concurrently his sentences on the four counts.

Order of the Court

1. On the Counts 1, 2, 3, and 4 to be served concurrently.
2. Accused to serve 12 years imprisonment.
3. Time spent in custody to be deducted from the sentence.
4. No further orders.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023)
^[2] [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)
^[3] Bade v R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023)
^[4] [2011] SBHC 25; HCSI-CRC 82 of 2010 (20 April 2011)
^[5] 4^th Ed, pp. 243 – 245
^[6] As above