Berekame v Director of Public Prosecutions [1986] SBCA 5; CA-CRAC 2 of 1986 (19 December 1986)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Appeal No. 2 of 1986

BEREKAME

V

DPP

Solomon Islands Court of Appeal
(Sir John White P, Kapi and Connolly)
Criminal Appeal No. 2 of 1986

16 December 1986 at Honiara
Judgment 19 December 1986

Defilement - Appeal against sentence - approach to - whether manifestly excessive - consideration of custom in sentencing

Facts:

The appellant was found guilty by the High Court of defilement and was sentenced to eighteen months imprisonment. He appealed against the sentence on the ground that it was manifestly excessive considering the delay between the commission of the offence and the hearing, the guilty pleas, the appellant’s previous good character, work record and sexual inexperience and that the appellant and the victim were friends prior to the offence. The appellant was 21 years of age at the time of the offence and the girl 11. They had been friends for several months and neither had had sexual intercourse before the offence. She did not become pregnant as a result.

Held:

1. A court of appeal will not interfere with the trial judge’s discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. (Skinner v. The King (1936) 16 CLR 336 as applied in Saukoroa v. R. [1983] SILR 275 followed).

2. In deciding whether the sentence was manifestly excessive, two cases, R.v Sukadoli (Criminal Case No. 3 of 1984) and R. v. Laothenga (Criminal Case No. 13 of 1985), in which the offenders were sentenced to nine months and six months imprisonment respectively, provide guidance, but only for the facts that the victims were under twelve years of age and the offenders in their twenties.

3. Notwithstanding that the Chief Justice took all the relevant factors into account and adopted the correct approach as to the purpose of the section, that is, the protection of young girls, under the circumstances of this case the sentence was manifestly excessive.

Accordingly the sentence of eighteen months was quashed and a sentence of nine months was substituted therefor.

Obiter - Customary attitudes toward the offence should be considered in passing sentence in future cases. Although Parliament has not passed an Act regulating the purposes for which customary law may be recognised it may be possible to consider its relevance under s.281 of the Criminal Procedure Code which provides that the Court may receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

Cases considered:

Skinner v. The King (1936) 16 CLR 336
Saukoroa v. R. [1983] SILR 275
R. v. Sukadoli Criminal Case No.3 of 1984
R. v. Laothenga Criminal Case No. 13 of 1985

Kenneth Brown for the Appellant
The Respondent in person

Sir John White P, Kapi and Connolly JJA: The appellant was found guilty by the High Court on a charge of defilement of a girl under thirteen years of age, contrary to s.134(1) of the Penal Code and sentenced to 18 months imprisonment. He was sentenced on the 17th February 1986.

He appealed against the severity of sentence pursuant to s.20(c) of the Court of Appeal Act 1978. Leave to appeal against sentence was granted by Connolly J. A. on the 22nd April, 1986, pursuant to s.34 of the Court of Appeal Act 1978.

The principles governing the exercise of appellate jurisdiction in reviewing a sentence are well settled. The question is not whether this Court would have imposed a different sentence to the one given but whether there was an error in the exercise of the sentencing discretion in the court below. The proper approach is stated in the Australian case of Skinner v. The King (1963) 16 CLR 336 -

".............. of course the sentence is arrived at by the judge at the trial ....... a Court of Appeal is not prone to interfere with the judge’s exercise of his discretion in apportioning sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the judge has acted on a wrong principle, or has clearly overlooked for understated, or overstated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence, but short of such reason I think it will not."

These principles were applied by this Court in Saukoroa v. R. [1983] SILR 275.

The appellant has appealed against the sentence on the ground that it was manifestly excessive having regard to the following circumstances:

(a) the delay between the commission of the offence and hearing of the matter

(b) plea of guilty to the charge

(c) the appellant’s previous good character

(d) the appellant’s good work record

(e) the appellant’s sexual inexperience

(f) that they were friends prior to the offence.

It is clear from the judgment of the Chief Justice that he had taken all these matters into account. He had also pointed out that the object of this section was to protect young girls. We do not question this.

Applying the principles stated above, we do not find any identifiable error by the Chief Justice in so far as the consideration of the circumstances are concerned. It cannot be said that he did not take these matters into account.

The only question that remains to be considered is whether, given the circumstances of this case, 18 months imprisonment term is so manifestly excessive that this Court ought to interfere.

The appellant was 21 years of age at the time of the offence and the girl aged 11. They had been friends for several months. Neither had had intercourse before this offence. The appellant had persuaded the girl to have sexual intercourse by promising to marry her. There is no evidence that she had become pregnant as a result.

The difficulty faced by this Court in determining whether or not the sentence of 18 months is manifestly excessive is that not many cases have been decided by the High Court to give any indication of the range of sentence for this type of offence. Counsel have indicated that the few cases that have been dealt with by the High Court, the range is said to be anywhere between $40.00 fine and 5 years imprisonment. Two cases were referred to in particular, R. v. Sukadoli (Criminal Case No.3 of 1984) and R. v. Laothenga (Criminal Case No.13 of 1985) and both were given 9 months and 6 months imprisonment terms respectively. We do not cite the facts of these cases as we do not consider that they provide any general guidance for this type of offence, save that, as here, the complainants were under 12 and the offenders in their twenties.

The Court in this case would come to its own decision on the appropriate sentence for this particular case. Whilst we agree that the Chief Justice has taken into account all the relevant factors and agree with him on the approach taken by him on the purpose of this section as intended by the Legislature, that is, for protection of young girls we consider that 18 months was excessive within the circumstances of this case. We would quash the sentence and substitute a sentence of 9 months to run from the 17th February 1986.

During the course of argument, the court raised the relevance of customary attitude by the people of the same community from which the accused and the victim came from. It is apparent that no real attempts were made by counsel, either during the trial before the High Court or during the hearing before us to lead this type of evidence for purposes of sentence. As there is no evidence before us, we did not consider the relevance of these considerations on sentence.

We do not criticise counsel in this particular case but we think that customary considerations in sentence may well be very important in the development of the law here in view of the fact that custom is recognised as a distinct source of law under Schedule 3(3)(1) of the Constitution. We note that under Sch. 3(3)(3) of the Constitution an Act of Parliament may "regulate ...... the purposes for which customary law may be recognised;" We understand the Parliament has not passed such an Act. However, we consider that relevance of custom for purposes of sentence should be given due attention in future cases. It may be possible to consider its relevance under section 281 of the Criminal Procedure Code which provides:-

"The Court may, before passing sentence, receive such evidence as it thinks fit, in order to inform itself as to the sentence proper to be passed."

We say no more than that.