R v Niulifia [2005] SBCA 4; CA-CRAC 026 of 2004 (4 August 2005)

SOLOMON ISLANDS COURT OF APPEAL

CITATION:	R v Niulifia
PARTIES:	R v NIULIFIA, CHARLES MAX (appellant)
FILE NO/S:	Criminal Appeal No 26 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:	A P Cook for the appellant R Barry for the respondent

JUDGMENT OF THE COURT

1. This is an application for leave to appeal and an appeal against a sentence of six years imprisonment imposed by the High court on 18 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 offence occurred in April 2003 when the appellant came across his victim with a number of her friends in the Town Ground Field. Both the appellant and the victim had been drinking. The appellant chased away the victim’s friends. After chasing away her friends, the appellant dragged his victim to another place and thereafter forcibly removed her clothing and had sexual intercourse with her without her consent. These facts were found by the sentencing judge following a trial before him.
   

The circumstance of the appellant

3. The appellant is a man of about 24 years of age. He is not married. Prior to coming to Honiara to earn money for fees he was living with his elderly parents and one brother. He is the fourth child in a family of five. His sisters are all married. Prior to the offence he was working as a security officer. He expressed his sorrow for what he had done. He is of previous good character with no previous convictions.
   

Findings of the sentencing judge

4. The sentencing judge found that as a result of offering assistance to the victim prior to chasing away her friends and committing this offence, the victim had been lulled into a false sense of security as between herself and her attacker. He found that the chasing away of the victim’s friends was part of the plan to isolate and thereafter rape his victim. He found that no weapon was used and that there was no physical injury to the victim. He found that the appellant may have formed the view that the victim was ‘a kind of loose girl’ because of the circumstances in which he first came across her, although the judge went on to say that this was not in fact the case, and that there had been no conversation between the two that might suggest an invitation to have sexual intercourse.
   

Appellants grounds of appeal

5. Two grounds of appeal were relied upon. Those grounds were:-
   
   1. the learned sentencing judge erred in comparing the offence with a ‘reasonable rape’ in determining to withhold leniency and
      
   2. the learned sentencing judge erred in regarding the victim’s fear as an aggravating feature of the offence.
      

As a result of the above it was said that the sentence was manifestly excessive.

6. In support of the above grounds counsel submitted that:-
   
   1. The offence was not the subject of any significant planning or deliberation
   2. The offence was not attended by any actual physical violence
   100. No weapon was used or threatened to be used
   4. No threats were made
   5. The act was short and not repeated
   6. The appellant was a young man
   7. The victim sustained no lasting physical or psychological injury.
      
7. When considering the supporting grounds submitted by counsel, this court notes that the sentencing judge deals with all of those matters in the course of his sentence. It would not therefore be correct to suggest that the sentencing judge did not take any or all of those matters into account when determining the appropriate sentence. We would add that he did not agree that no violence was used in the course of the commission of the offence. We agree that there is inherent violence within the offence itself, but note that the sentencing judge made particular reference to the chasing away of the victim’s friends during which violence or threats of violence occurred. We further note that the sentencing judge found that the appellant ‘forcibly’ removed the victims’ clothes.
   
8. In the course of his remarks on sentencing the judge made reference to the absence of two otherwise aggravating features to the offence. He said “it is true, you used no weapons. It is true that she sustained no physical injuries.” and he went on to say “The absence of those two factors does not make the rape a reasonable rape.” Counsel for the appellant submitted that this remark demonstrates an error on the part of the sentencing judge. This complaint appears as the first ground supporting this appeal. This court agrees that the phrase ‘reasonable rape’ is not the most appropriate phrase in the circumstances but it is clear that the judge intended to suggest by his words that the absence of those two aggravating features did not go to establish that this particular offence should be regarded as being at the lower end of the scale in terms of seriousness.
   
9. This court and the court below were referred to R v Billam [1986] 1 WLR 349 applied in this jurisdiction by R v Ligiau & Dori Criminal Case No. 35 of 1986 where Ward CJ adopted the views expressed by Lord Lane. Setting a starting point of five years for an offence of rape without aggravating or mitigating features, that authority suggests that violence and the use of a weapon may well be regarded as aggravating features indicating a higher sentence. That this sentencing judge made reference to the absence of those two aggravating features merely suggests that he did not intend to reduce the sentence from the notional starting point because those features of aggravation were not present. This, in our view, is the correct approach to take when sentencing. Where the presence of an aggravating feature or features is found, a sentencing judge may well depart from a notional starting point in an upward direction, just as where mitigating features found will direct him in the opposite direction. That ground of appeal therefore we find without merit
   
10. The second ground of appeal relates to the remarks made by the sentencing judge about the victims’ fear. It was submitted by counsel that this factor should not have been regarded by the sentencing judge as an aggravating feature. Fear, it was submitted, is inherent in the offence of rape and to aggravate the sentence for that reason effectively sentences the offender to double punishment. We do not agree with this assertion in this instance. The fear referred to the sentencing judge in this case relates to the victim being taken away by force from the company of her friends. This cannot be described as being inherent in the offence of rape. It is a finding that the judge was entitled to make in the circumstances of this particular offence and we do not see reason to disagree with that finding. It was and should properly be regarded as a factor aggravating this offence.
    

Conclusion

11. In the circumstances leave to appeal against sentence is granted and the appeal against sentence is dismissed.
    

President SI Court of Appeal
Judge of Appeal
Judge of Appeal