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R v Teha [2024] SBHC 178; HCSI-CRC 633 of 2021 (1 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 633 of 2021

REX

V

DAVID JUNIOR TEHA

Date of Hearing: 11 October 2024
Date of Decision: 1 November 2024

Counsel: Auga for the Crown
Counsel; Brooke for the Defendant

SENTENCE

1. Mr. Teha, by verdict delivered on 7/8/2024, I convicted you for rape, on a victim girl who called you father in custom. You are married to her aunt Mavis, the younger sister of her mother. The victim is Annette Keo, whom I referred to in here and in the verdict as AK.
2. The outstanding issue is to determine the appropriate punishment for the conviction of rape.
3. I remind myself at the outset that rape is a serious crime for which Parliament prescribed life imprisonment as the maximum punishment. However, I have power to impose a lesser sentence term.

Start point sentence

4. At the time of offending, on 23/6/2021, AK was 14 years old. According to Sinatau, Court of Appeal 2023, the starting point sentence for unlawful sexual intercourse with a female child under 15 years (rape included) is 8 years. Hence, I will set the start point sentence at 8 years.

Aggravating factors

5. I determine the following aggravating factors: -
   • (i) Position of trust breached – By marriage, AK is Teha’s uncle. At the time of the offence, Mr. Teha had care and custody of AK. Teha is the husband of AK’s aunt, Mavis. AK was spending her school break with Teha and his wife. AK’s parents entrusted Teha to look after their daughter. Teha breached this trust and his duty of care as AK’s uncle when he turned on AK to satisfy his sexual gratification. This is a serious breach, because not only did the victim suffer emotional and psychological harm, but the family and the social cohesion of the whole extended family from Teha’s marriage on his wife’s side will undoubtedly be shattered.
   • (ii) Young age of victim - The victim in the Pana case was 3 years old. The victim here is 14 years old. One can therefore conclude that AK is not as tender aged as the victim in Pana. That distinction ignores the fact that whether a girl is 3 years old or 14 years old, both are tender aged in terms of their sexual purity, virginity, and dignity. These are the cultural and moral values that ought to be preserved for girls under the age of 15/18, propelling the reforms made in the 2016 Act. Hence, AK is a tender aged girl. And her actual tender age must be considered as an aggravating factor over and above her age as a child. It would not amount to double accounting because, as a fact, the victim was a child (under 15 or 18 years), which brings the case into the 8 years start point sentence.
   • (iii) Age disparity – AK was 14 years old, whereas Teha was 24 years old. There is an age gap of 10 years. That is rightly so because you are the victim’s uncle. As an older person and uncle of the victim, you are expected to be responsible and accountable to protect AK from this type of offence (R v Ramaia).
   • (iv) Isolated location – Teha’s wife Mavis sent Teha and AK to their bush garden. At the bush garden, an isolated place, Teha’s sex urges ran wild and he raped AK. Isolation means AK cannot call out for help. And for Teha, it means he had all the time to achieve his sexual dreams without interruption.
   • (v) Physical harm – AK suffered physical harm because Teha struggled to have sex with her, evidenced by fallen bushes, blood seen on AK’s vagina after sex (hymen impliedly broken), and the discomfort feelings AK experienced seeing the nurse in the afternoon of the incident. When sex is obtained by force, what else should we expect? The body and its sex hormones are not prepared for sex. Hence, these physical harm are expected. The very act of rape is a physical violation of a victim and physical harm is inherent in it (Liufirara, Court of Appeal 2023).
   • (vi) Psychological harm and trauma – The Court should always take judicial notice of the long-term impacts and trauma on the victim despite the lack of medical and professional evidence (Bonuga, 2014 Court of Appeal). Despite lack of observable physical harm, in all rape or sexual offence cases, the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per Bonuga (Liufirara, Court of Appeal 2022).
6. For all of the above 6 serious aggravating factors combined, I will uplift the start point sentence by 10 more years (about 1.5 years for each aggravating factor). Increases for serious aggravating factors should be made in years and not merely in weeks and months (Bade, Court of Appeal 2023). That brings me to 18 years head sentence before mitigation.

Mitigating factors

7. Then I will reduce that due to the presence of mitigating factors. The first is first time offender with no previous conviction. I allow 2 years deduction.
8. Next is personal circumstances and cooperation with the police. I will deduct 1 year.
9. The next is rehabilitation in the correctional facility. Mr. Teha is a young man and has the potential to receive restoration and come out to be a useful member of the community. I deduct 3 years.
10. For delay, whatever the reason is, good or bad, reasonable or unreasonable, a delay is a delay and affects the accused’s constitutional right to a fair hearing within a reasonable time. I deduct 2 years.

Conclusion and Orders

11. The final head sentence I will give is 10 years. As I stand back and look at the sentence term of 10 years, it is an appropriate custodial sentence term for an offence that has a maximum punishment of life imprisonment. The one mitigating factor that influenced me to impose a 10 years sentence is rehabilitation. Teha is in his late 20s. He will get rehabilitation in the correctional centre and come out to be a useful and better person in the community after his release. He still has a long way to go in terms of the life span that we have for men in Solomon Islands (63 – 66 years). This sentence will start to run from 21^st August 2024. Any pre-trial custody entitlement will be accounted for.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE