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R v Hebo [2022] SBHC 52; HCSI-CRC 489 of 2020 (25 August 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 489 of 2020

REGINA

V

DANNY KOETE HEBO

Date of Hearing: 24 August 2022
Date of decision: 25 August 2022

Ms B Oligari for the Crown
Mr R D Pulekera for the Defendant

Sentence

Introduction

1. Danny Koete Hebo you have pleaded guilty to one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by section 5 of the Penal Code Amendment (Sexual Offences) Act 2016. You were arrested on 16 July 2020. You have been remanded in custody since 17 July 2020. You initially pleaded not guilty but on 22 August 2022 you were re-arraigned and pleaded guilty. You now appear for sentence.

Facts

2. The Crown and the Defence have filed a detailed statement of agreed facts for the purpose of sentencing. You were aged 24 and the victim was aged 22 at the time of your offending.
3. On 11 July 2020 the victim paddled from Vatuluma village to Tabariki village to look for betelnut. You met her and asked where she was going. She told you she was looking for betelnut. When she returned you grabbed her hand and pulled her to a leaf house inside the bush. You were holding a knife. You took off her clothes. While holding on to her you took off your own clothes. You lay on her. You used your mouth on her breasts. You prevented her from shouting and you raped her pushing your penis into her vagina. You caused her pain. She cried and you prevented her from shouting. You then left her. She was in pain and had difficulty walking. She was later medically examined and the walls of her vagina were enflamed.

Aggravating factors

4. The Crown has submitted that there are a number of aggravating features. I am mindful that you are being sentenced for a serious charge as reflected in a maximum sentence of life imprisonment. I accept that you pulled the victim to a leaf hut where you raped her and prevented her from shouting out. The offence of rape is always serious and shows a total disregard for a victim’s dignity and self-respect. I also record that the victim continues to suffer from the abuse you inflicted on her. Your offending had aggravating features which I find are:
   1. You held a knife causing the victim to fear for her life.
   2. The offence occurred at night where the victim was vulnerable. You took advantage of that to sexually violate her.

Mitigating factors

5. So far as mitigating factors relating to the offence is concerned, you have eventually pleaded guilty. Your plea was entered on the day your trial was to commence so it could not be described as an early plea however it has saved the victim from having to give evidence and thereby re-live the event. Of importance it is an acknowledgement of your offending and is consistent with the remorse your counsel submits on your behalf. To a much lesser extent it has saved the time and expense of a trial. You will receive a reduction in sentence to reflect the plea and your remorse but that reduction cannot be as great as it would have been had it been entered at an early stage. The victim has had to live with the prospect of giving evidence of what you did to her for more than 2 years.
6. I record that you have no previous convictions.
7. Your counsel has submitted that you have co-operated with the Police. What he has put forward however is a lack of aggravating factors in that regard. When interviewed you exercised your right to silence as is your right but that is not a mitigating factor.
8. The personal circumstances put forward by your counsel include:
   1. You are married with 3 children.
   2. Your wife has now left your two older children in the care of your mother and returned to her parent’s home with your youngest child.
   100. Your mother is aged 70 and is supporting your children as a market vendor.
   4. Your children have not been attending school since you were remanded in custody as other family members are not providing strong support.
   5. Before your offending you were self-employed supporting your children.
9. The fact that your mother now has to support your children and that you can no longer do that is a consequence of your offending.
10. I record that this Court in R v Ligiau and Dori [1986] SBHC 15 the Court said: “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.” This statement has been approved in cases since that time.

Principles of Sentencing

11. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim and to the community. I need to promote in you a sense of responsibility for and an acknowledgement of that harm. I need to provide for the interests of your victim. I need to denounce your conduct and deter you and others from offending of this nature. I need to protect the community from you and others who may be minded to act as you have. I need to provide for your reintegration into the community and for your rehabilitation.
12. I must bear in mind the gravity of your offending and the seriousness of this type of offending. I also bear in mind the need for consistency in sentencing levels and the requirement that I impose the least restrictive outcome appropriate to the circumstances.
13. Your case is one where there needs to be both specific and general deterrence. You must be dissuaded from further offending in this fashion and members of the community must understand the consequences of such offending.

Starting Point

14. In Regina v Maneapia [2020] SBHC 36 the Chief Justice said: “The offence of rape has always been regarded as a serious crime by the law for it is an offence of violence against the weaker sex, and entails taking advantage of that imbalance by the stronger male accused over the weaker victim and violating her person...It 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.” I agree with those sentiments.
15. In Ligiau and Dori the Court adopted the following words: “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case.” The Court of Appeal has approved that starting point. In Soni v Reginam [2013] SBCA 6, the Court of Appeal identified the use of a weapon to frighten or wound a victim is a factor of aggravation which increases the starting point.
16. Counsel have referred to a number of decisions I have considered those. Your counsel has referred to the fact that you merely held the knife and sought to distinguish what you did from the use of the knife in cases such as R v Rongo [2021] SBHC 136 or Regina v Roy [2018] SBHC 23. I must look at what the effect of that must have been on the victim and also the fact that you prevented her from shouting out.
17. I take a starting point of 5 years’ imprisonment and increase that term to 6 years and 6 months to allow for aggravating factors.
18. In Pana v Regina [2013] SBCA 19, at paragraph [29], the Court of Appeal said: “In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty. In the present case, the plea of guilty was only entered after the trial commenced. It did, as we have said, spare the complainant from the ordeal of giving evidence and therefore deserves some recognition. However, it only came after the trial had started and the witnesses, including the complainant, had been required to attend.” Your plea was only changed on the morning of trial. You did however save the victim from giving evidence and you will receive credit for that and your expression of remorse. I allow a reduction of 14 months. For the remaining mitigating factors, I allow a further 4 months. The final sentence then is 5 years’ imprisonment.
19. I note that you have been remanded in custody since your arrest. I direct that the sentence commences from the date you were remanded into custody. That was on 17 July 2020.

Orders

1. On the charge of rape, the Accused is convicted and sentenced to a term of 5 years’ imprisonment and that term is to commence on 17 July 2020.
2. The name of the victim is suppressed and may not be published.

By the Court

Justice Howard Lawry

Puisne Judge