R v Su'umania [2005] SBCA 3; CA-CRAC 029 of 2004 (4 August 2005)

SOLOMON ISLANDS COURT OF APPEAL

CITATION:	R v Su’umania
PARTIES:	R V SU’UMANIA, Henry (appellant)
FILE NO/S:	Criminal Appeal No 29 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	High Court at Honiara
DELIVERED ON:	4 August 2005
DELIVERED AT:	Honiara
HEARING DATE:	25 July 2005
JUDGES:	Lord Slynn of Hadley President and Goldsbrough and Adams JJA
ORDERS:	1. Leave to appeal granted 2. Appeal dismissed
COUNSEL:	H Barclay for the appellant M McColm for the respondent

JUDGMENT OF THE COURT

1. This is an application for leave to appeal and an appeal against a sentence of five years imprisonment imposed by the High court on 1 November 2004 following a conviction for the offence of rape. The maximum sentence for such an offence prescribed in section 137 of the Penal Code is life imprisonment.
   

The offence

2. The circumstances of the offence are that the appellant had sexual intercourse with the victim in the Botanical Gardens in Honiara without her consent. The sentencing judge so found following a trial of the issue in the High Court. He found that the appellant tricked his victim into submitting to that sexual intercourse by masquerading as a security officer who had the power and intent to have the victim arrested for trespass in the Botanical Gardens. He pretended, to further this trick on his victim, to speak into a mobile phone as if to summon the police to arrest his victim. There were other parts to the trick that the judge sets out clearly in his finding. Ultimately the appellant suggested that to avoid arrest the victim should agree to have sexual intercourse with him. It was in these circumstances that the victim’s will was overcome and the intercourse took place. The situation was no doubt further complicated in the mind of the victim since, the evidence suggests, she had only very recently and in the same place had sexual intercourse with her boyfriend.
   

The circumstance of the appellant

3. The appellant is a man of more than thirty years of age, married with two young children. His wife is supportive of him, even whilst he has been in custody. Prior to his arrest he and his family were living in Honiara and he was gainfully employed. His parents are deceased. He has one sister and has supported a small extended family
   

Findings of the sentencing judge

4. The judge found that the appellant had posed as a police officer and that there were a number of factors at play that made his pretence capable of belief. He further found that the appellant was a mature man (around thirty years of age) compared with his victim who was eighteen years of age at the time of the offence and still a student. He found that the victim had believed the pretence of the appellant and regarded him as a police officer with the ability to have her arrested for trespass. He found that the appellant through this pretence could be regarded at least be his victim as a person in whom there should be a degree of trust shown. He found that no violence was used and that the victim sustained no physical injuries. He disregarded any previous convictions that the appellant had as none of them was of a previous sexual offence. He also found that the facts of this particular offence were not similar to any other offence within his experience.
   

Appellants grounds of appeal

5. The grounds of appeal as set out are that: -
   
   1. the learned sentencing judge erred in failing to take into account what level of risk the offender posed to society
   2. the learned judge erred in failing to consider what prospects of rehabilitation the appellant may have
   3. the learned sentencing judge erred in failing to take any or any proper account of the mitigating factors in relation to the circumstances of the offence and
   4. in all the circumstances that the sentence was manifestly excessive.
      
6. In support of the first ground of appeal, counsel for the appellant drew the attention of this court to the principles set out in Millberry v R [2002] EWCA Crim 2891 (9 December 2002). He contended, based on that authority, that one of the three dimensions to be considered in assessing the gravity of an individual offence of rape includes the level of risk proposed by the offender. He contended that the sentencing judge in focusing on the circumstances of the offence failed to take this aspect of sentencing into account. We find this proposition difficult to accept. It is perfectly proper that the primary focus of the judge should be on the circumstances of the offence. No material was placed before the judge to suggest that this appellant was more or less likely than any other man to re-offend. Indeed the point was not raised before the judge. It is not therefore surprising that the judge made no specific reference to the point in his remarks on sentencing. Indeed it could be argued that in acknowledging he intended to disregard any previous convictions of the appellant, he was dealing with a first offender with no particular propensity to commit such crimes and as such would not be regarded with any particular view as regards re-offending.
   
7. Counsel for the appellant conceded that ground two overlapped with the first ground of appeal. Rehabilitation, in our view, is merely the same argument reversed. In the same way that the prospects of re-offending were not a major factor in sentencing the appellant, similarly the prospects of his rehabilitation were not a significant factor. Again nothing was placed before the judge in this regard, and it would therefore be wrong to conclude that in not specifically making reference to this issue, the judge did not consider the matter in determining the appropriate sentence.
   
8. Turning to the next ground of appeal, counsel for the appellant suggested that the sentencing judge failed to give proper weight to mitigating factors present in this case. The judge referred to the mitigating factors in his sentencing remarks and concluded that the mitigation present was ‘unfortunately not compelling’. That remarks suggests to this court that the very opposite to that which is currently contended in fact occurred in the court below. In considering the mitigating factors, the judge came to a conclusion that they were not compelling. That remark alone serves to confirm that the judge considered that mitigation. In further referring to the same factors, for example the lack of violence and the lack of physical injuries, together with the lack of previous convictions, the judge amply demonstrates that his mind had been turned to these matters. That the judge came to the conclusion that those factors were not compelling is a decision that he was entitled to arrive at in his discretion and it cannot therefore be said in this instance that the matters were not considered.
   
9. This court must then turn to the final question as to whether the sentence was manifestly excessive in all the circumstances. Both this court and the court below were referred to R v Billam [1986] 1 WLR 349 and R v Ligiau and Dori [1985-1986] SILR 214 in which it was suggested that the framework adopted in Billam be adopted in this jurisdiction. Whilst such cases are undoubtedly a useful tool in providing guidance to sentencing courts, they can at best only give guidance to the sentencing court. Courts must still be alert to determining each case that comes before them with a bias towards the facts that present themselves in each instance. This court considers that the principles set out in Billam remain applicable but must always be applied with sufficient flexibility to reflect both the present facts and the changing nature of society. The relevant principles set out in Billam and applied to this jurisdiction in Ligiau begin with the cautionary note that-
   

“the variable factors in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years.”

10. In that case it was accepted that save in wholly exceptional circumstances rape should attract an immediate custodial sentence. In bringing together the sentences previously imposed for the offence of rape, the court was able to suggest what current practice should then be and the general effect of the sentence summarised. It was no doubt with reference to this case that counsel for the appellant before this court suggests that the sentencing judge simply applied the starting point of five years without considering either mitigating or aggravating factors. It is our view that the judge carefully and correctly considered all relevant matters and that this is demonstrated in his reasons for sentence.
    

Conclusion

11. This court was also assisted by a compilation of sentences imposed in this jurisdiction in cases involving rape. It may well be more helpful to note in such a compilation the date that any particular sentence was imposed, for over time it may well be that a sentence can be shown to be moving in a particular direction. This will be necessary from time to time to reflect the prevalence of the particular offence and the changing views that emerge in the society served. Taking into account the range of sentence imposed for this offence as demonstrated by the compilation, it appears to this court that the sentence imposed on this appellant was well within the range to be expected.
    
12. It is well settled that this court will not interfere with the sentence imposed by the trial judge in the exercise of his discretion unless it is shown to be manifestly excessive or manifestly inadequate either because the judge has acted on wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. See Kaimanisi v R Crim App Case No 3/95.
    
13. In the circumstances leave to appeal is granted and the appeal against sentence is dismissed.
    

President SI Court of Appeal
Judge of Appeal
Judge of Appeal