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R v Ngere [2019] SBHC 105; HCSI-CRC 181 of 2019 (25 July 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 181 of 2019

REGINA

V

BENJAMIN NGERE
Defendant

Date of Hearing: 24 July 2019
Date of Sentence: 5 July 2019

Mrs. Margaret Suifa’asia for the Crown
Mr. Sholto Manebosa for the Defendant

Palmer CJ.

1. You have been charged with the offence of rape, which is a very serious offence as reflected in our law; it carries a maximum penalty of life imprisonment. Each case however, should be considered on its own merits and circumstances, and sentences of varying terms of imprisonment are imposed depending on the presence of any aggravating or mitigating factors.
2. The offence of rape has always been regarded as a serious crime for it entails the violation of the will, mind, personality and dignity of the victim affected and “... is an offence of violence based on a selfish disregard for the rights and feelings of another and is likely to cause, more than almost any other offence, serious and long-lasting harm to the victim”^[1].
3. Other than in wholly exceptional circumstances, it will attract an immediate and more often than not, a lengthy custodial sentence. This is necessary for a variety of reasons, as stated in the case of R. v. Roberts and Roberts^[2], per Lord Lane in his sentencing remarks:
   • “First of all to mark the gravity of the offence. Secondly, to emphasize the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but by no means least, to protect women. The length of the sentence will depend on all the circumstances.”
4. The starting point for rape by an adult without any aggravating or mitigating features in a contested case, is five years, but where there is already an aggravating feature present, such as in this case, “by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive....”, the starting point should be eight years, (see R. v. Ligiau and Dori^[3], which has been endorsed by the Court of Appeal of Solomon Islands in Soni v. Reginam^[4]).
5. The victim in this case is none other than your niece, (she is the daughter of your sister) and therefore by virtue of that close blood relationship and customary obligations, places you in a position of trust and responsibility towards her. She is like your daughter. This however, was blatantly flouted in your bid to satisfy your selfish sexual lust on her, both shameful and disrespectful. In R v Patare^[5], Pallaras J. made some pertinent comments in a similar situation to this, which I quote:
   • “It is always incomprehensible to me how any man could think so little of a member of his own family as to treat them with so little humanity. This is particularly so when even although that family member is a female child, that he could treat her with such disrespect, contempt and cruelty. The complainant was the prisoner's sister's young daughter. It is hard to imagine how this could have occurred without there being such dysfunction and indifference in the prisoner as to cause him to totally lose his moral and human compass.”
6. By virtue of that relationship and tie, you were obliged to take care of her. By virtue of that relationship, you were placed in a position of power and authority but which you took advantage of, forced her to accompany you to an isolated spot at the sea side, and then forced her against her will to have sex with you. She would not have accompanied you to the beach so that you could have sex with her, if she did, it was either because she trusted you as her uncle or, because you forced her against her will. She resisted but you overpowered her and raped her. On her return that night she immediately made a fresh complaint to two women, who also immediately reported the matter to the police.
7. It is difficult to comprehend the full extent or impact of damage or harm caused to the victim, but rape being an offence of violence on its own, your momentary loss of self-control and giving in to temptation that night, no doubt would have left much serious and long lasting harm to the victim and left scars not easily erased.
8. You have not only broken taboos in human relationships, custom and religion, but also broken the law and tarnished your reputation in the community.
9. I take into account, the age difference between you, she was only 17, a juvenile at the time of commission of offence and yourself an adult of 30 years. Age should equate with maturity and your family and community expected much more from you as an adult, but you failed them and the victim in this case.
10. In contrast, I note mitigating factors raised on your behalf by your lawyer; you are a first offender, and entered a guilty plea at the earliest opportunity. I give credit for both, in particular your guilty plea, which not only shows remorse and contrition, but has saved court time and resources, and saved the victim from having to go into the witness box and relive such terrible ordeal.
11. I accept submissions from your counsel, that your prospects of rehabilitation and reintegration back into your community as a young adult, are good.
12. The starting point in this case of 8 years, where there is already an aggravating feature present, “by a person who is in a position of responsibility towards the victim”, can expect to increase in the presence of other aggravating features present, that of the age of the victim, a juvenile (17 years) and the defendant at 30 years, and the fact of being a close relative (uncle) to the victim. I also take into account and note the increase in the offence of rape coming through the courts, and the need to bear in mind, the principles of deterrence and retribution and to send out a clear message to the community, that those involved in this type of offence can expect an immediate and lengthy custodial sentence to be imposed.
13. On the other hand, balancing these with the mitigating factors in this case, I am satisfied a sentence of 6 years is appropriate in the circumstances and is imposed herewith. You have a right of appeal against this sentence if aggrieved by it.

Orders of the Court:

1. Enter conviction for the offence of rape.
2. Impose sentence of 6 years for rape.
3. The period spent in custody is to be deducted from the sentence.

The Court.

^[1] R. v. Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986), page 2.
^[2] [1982] 4 Cr. App. R. (S.) 8: Lord Lane CJ, Skinner and Leonard JJ.
^[3] [1986] SBHC 15 SILR (3 September 1986) Ward CJ
^[4] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).
^[5] [2014] SBHC 79; HCSI CRC 49 Of 2013 (31 July 2014)