HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Nigramana 	
		
Citation:		
		
Date of decision: 	29 January 2025	
		
Parties: 	Rex v Bernard Nigramana 	
		
Date of hearing: 	13 November 2024	
		
Court file number(s): 	363 of 2023	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 		
		
Judge(s): 	Faukona; DCJ	
		
On appeal from:		
		
Order:	1.	The defendant Bernard Nigramana is guilty on own admission of the charge.
2.	The defendant is sentenced to 11 years in prison.
3.	Number of months spent in custody be deducted from 11 years imprisonment.
4.	Sentence start to run as of today, the date this sentence is delivered.	
		
Representation: 	Ms Martha Mutukera and Ms Latiara Pellie for the Crown 
Mr D Kwalai for the Accused 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136F(1) (a) (b)	
		
Cases cited:	Tii v Regina [2017] SBCA 14, R v Ramo [2023] SBCA 9, R v Sinatau [2023] SBCA 38, Pana v Regina [2013] SBCA 19, Sobana v R [2024] SBCA 16, R v Liva [2017] SBCA 20	

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 363 of 2023 

REX

V

BERNARD NIGRAMANA 

Date of Hearing: 13 November 2024
Date of Sentence: 29 January 2025

Ms Martha Mutukera and Ms Latiara Pellie for the Crown 
Mr D Kwalai for the Accused 
SENTENCING AFTER PLEA OF GUILTY 
R. Faukona, DCJ.
Introduction.
1. 	The defendant Bernard Nigramana was charged for one (1) Count of Rape contrary to section 136 F (1) (a) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty for Rape is life imprisonment. The defendant’s age is 49 years and the victim is 16 years and 3 months, a difference of 32 years and 9 months.
2. 	On 4th October 2023 the defendant entered a plea of not guilty and the case was set for one-week trial commencing 23rd January 2024. The trial was never conducted until 6th November 2024 when the defendant changed his plea and entered a plea of guilty.
3. 	The reasons for delay of trial is that Counsel Holara who took courage of the file was not attending Courts. On 26th February 2024 he said he was sick. On other trial dates the Counsels were not ready and witnesses were not ready, in fact were not summoned.
The brief facts of the case.
4. 	The defendant is Bernard Nigramana. He comes from Hovikoilo village, Isabel Province. The defendant’s wife and the complainant’s mother are sisters. The defendant can call the complainant as his niece.
5. 	The complainant was born on 24th December 2006. At the time of offending she was about 16 years and 3 months old.
6. 	On 27th March 2023, the complainant went to the defendant’s house to spent a night with the accused’s daughter, namely Clair Joylyn. At that time the defendant’s wife was in the gardening during the day, eventually spent the night there. Only the accused and his daughter and the complainant were at home that night.
7. 	At nigh the complainant and Clair went into the room and were lying down. After few moments later the accused gave his mobile to his daughter so that both girls would watch movie. Both were watching movies until both slept.
8. 	On the morning part of the night on 28th March 2023, the complainant woke up and felt someone was laying down on top of her. The complainant then realized she was without her clothes. And felt someone was pushing his penis inside her vagina causing her pain. Then she heard the man saying “me nomoa ya, u no shout.” She was shocked when she realized that it was the defendant her uncle.
9. 	The complainant was so frightened and tried to push the accused away. She struggled but the defendant was very strong. The complainant then bit the defendant’s hand and told him if he did not stand up, she would report him. The defendant then stood up and went to his room and told her not to report the problem. During that time Clair was asleep.
10. 	The complainant then put on her clothes and went outside of the house and met Miss Nika whom she reported the matter to.
11. 	Two days later she went to Buala Hospital for medical check and reported the mater to Police. On 31st March 2023 the defendant was arrested and placed in custody.
Sentencing Principle.
12. 	The case of Tii v Regina, set out one very significant aspect of sentencing principle, advocating that a sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.
13. 	Deterrence comprise of general and personal deference. General deterrence is required to reflect the Community has condemned the defendant’s conduct and such sentence will deter members of the community not to commit similar offences.
14. 	Personal deference is to discourage the defendant from reoffending and to ensure the defendant abstain from committing similar offence in the future.  If he acts the same, he will be dealt with seriously.
Punishment.
15. 	In the case of R v Ramo, the Court of Appeal further signify other important aspect of sentencing by advocating that the sole criteria relevant to determine the upper limit of appropriate sentence is that punishment fit the crime. Apart from mitigating factors, the circumstances of the offence alone must be the determinant of an appropriate sentence.
16. 	The circumstances would include the nature and the circumstances surrounding the commission of the offence.
The Starting Point.
17. 	In this case the offence of rape was committed on a victim who was 16 years and three months at that time. The general definition of a child pursuant to S. 4 of the principle Act as amended by the Penal Code (Amendment) (Sexual Offence) Act 2016, is below 18 years of age.
18. 	Apparently without further perusal for an answer, the consenting age of a child is below 18 years.
19. 	The prosecution submits relying on R v Sinatau that the starting point for raping a victim of 16 years and 3 months old is 8 years. The Court of Appeal actually stated in paragraph 13 that …’when a victim is below the age of consent that should always bring the starting point to 8 years.
20. 	In fact, the Court of Appeal in Sinatau case was reaffirming the guideline set out in Pana V R when it was decided on 8th November 2013. In paragraph 15 it stated, “we consider that, when the victim is a child below the age of consent, that should always bring the starting point up to eight years”.
21. 	With the two above cases providing guidelines which have been applied by this Court. The case of R v Victoria Sobana has emerged with the notion that a starting point can be increased from 8 years where the aggravated facts are; offending in the family home, breach of trust, psychological harm and disparity of age. In doing so it is required by an incumbent judge to give reasons.
22. 	In the Sobana case the Court of Appeal was dealing with a case where the judge was fixing a starting point of 18 years, before making the necessary increase for aggravating factors. What the Court noted is that the way the sentencing judge approached the fixing of the starting point is that it appears the aggravating factors have been taken into account twice.
23. 	At first consideration the sentencing judge concluded at 18 years, and then further uplift by 5 years. To increase a starting point from 8 years to 18 years must be explained with reasons, the Court of Appeal has noted some explanations.
24. 	The argument before this Court is that the guidelines are not to be seen as rigid in the sense of taking away the role of the judge in assessing criminality involved. However, if the judge is to depart, he must set out reasons for departing from what the Court considers appropriate starting point.
25. 	The prosecution submits a similar approach can be taken in the current case. Whilst the appropriate starting point is 8 years aggravating factors present should uplift at least 4 years or more.
26. 	The starting point of 8 years is not disputed. It is the uplift after consideration of aggravating factors which present the Counsels with different view. Meantime I set 8 years as starting point in this case.
Aggravating factors.
27. 	The aggravating factors present in this case are; age disparity between the accused who was 49 years at that time and the victim who was 16 years and 3 months – a difference of 32 years and 9 months.
28. 	As an adult uncle of the victim, he is expected to respect his niece and the aftermath shame that will haunt their families and the humiliation effect upon the knowledge of the community.
Location of incident.
29. 	The incident occurred in the house of the defendant at night. The defendant had benefited from the absence of his wife that night. His house is so often visited by the victim and sometimes slept over with her cousin sister Miss Clair the daughter of the defendant. That place now converted into a crime scene an unpopular sport and not attractive anymore.
Breach of trust.
30. 	The accused was married to the sister of the victim’s mother. They live in the same village and close to each other. The defendant is the victim’s uncle. As an uncle the defendant is customarily charged with responsibilities to ensure the safety and security of the victim from any abuse, harm or any other criminal activities. In this case the defendant had breached that position of trust vested on him by having sexual intercourse with his niece, the complainant. That is a breach of his traditional duty and likewise a duty placed on him by law as well.
Young age of the victim.
31. 	The victim is a young woman vulnerable in age when she was sexually assaulted by the accused. In Sinatau case, re-emphasizing Pana case, that actual age of the victim should be taken into account as a possible aggravating factor over and above that. And I consider that consideration as being applicable in the current case.
Psychological trauma. 
32. 	I take head the case of R v Liva, where the Court of Appeal stated, there may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that judicial notice needs to be taken of the devastation effect of the victims sexual offending, especially young victim as in this case. The psychological trauma cannot be ignored.
33. 	In this case I take judicial notice though there is no evidence of any psychological harm. I noted there is a report on the victim impact statement filed.
34. 	From the report I noted that after the incident the victim felt frightened at night. She was not feeling comfortable to go to her uncle, the defendant’s house. She felt ashamed. She did not go out with friends. Her aunty, the accused’s wife did not want to speak to her or her family since the incident. She was no longer attending school. She was ashamed of what happened.
Offence happened at night.
35. 	The defendant took advantage of the victim whilst she was sleeping at night inside the room with his own daughter in his house. The house should be treated as safe sanctity where the children were sleeping. The defendant should be an uncle to protect her yet he was not conscious of that responsibility.
36. 	The aggravated factors reflect the scenario that the defendant’s satanic motivated evil is at work. One night absent from the home by the wife, immediately cast privilege on the victim to implement his evil activities which he did. The accused must have been fantasizing about young girls in his village. A short stint absents by the wife gave him a real chance to do what was evil and horrifying.
37. 	The aggravating facts sum up the kind of a person the accused is. What he did is serious to a young girl who is his own niece. The circumstances speak for themselves and deny his actions. I therefore uplift the starting point by 5 years making it 13 years.
Mitigating factors.
38. 	In mitigation I accept the defence Counsel’s submissions. That the case of Sobana is more serious than the current case. In the Sobana case, the defendant was charged for one count of persistent sexual abuse of the child. That charge and rape carry the same maximum penalty of life imprisonment.
39. 	The charge of persistent sexual abuse in Sobana case has 3 separate sexual offences on separate occasions. The victim was 14 years of age at the time of offending. Eventually the complainant became pregnant.
40. 	In this case the accused was charged for one count of rape of a girl 16 years and 3 months old. She was not pregnant. He pleaded guilty to the charge and express remorse through his Counsel. He is a first-time offender. I give him credit and take account of his plea. In fact, the accused plea of guilty was a plan one stated by the defense on 7th August 2024. I must give discount for guilty plea. Noted discount can be as much as 1/3 reduction as stated in Tií’s case.
41. 	By pleading guilty its saves DPP money from spending on witnesses transporting them to the Court. It also saves time and avoid trial. It avoids the victim being traumatized from recalling evidence of an episode she now wishes to leave behind and move forward in her life into the future.
42. 	With those mitigating facts I decided to reduce the sentence by 2 years. The total sentence to serve is 11 years.
Orders:
1.	The defendant Bernard Nigramana is guilty on own admission of the charge.
2.	The defendant is sentenced to 11 years in prison.
3.	Number of months spent in custody be deducted from 11 years imprisonment.
4.	Sentence start to run as of today, the date this sentence is delivered.
The Court.
Hon. Mr. Rex Faukona.
Deputy Chief Justice.