Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras J)
COURT FILE NUMBER:	Criminal Appeal Case No. 13 of 2013 (On Appeal from High Court Criminal Case No 408 of 2013)
DATE OF HEARING:	29 OCTOBER 2013
DATE OF JUDGMENT:	8 NOVEMBER 2013
THE COURT:	Justice Glen Williams JA, Acting President, Sir Gordon Ward JA, Sir John Hansen JA
PARTIES:	Warren Rina Pana -V - Regina
Advocates: Appellants: Respondent:	I Benham with R Olutimayan for appellant R Iomea and A Driu for Respondent
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-6

[1]The appellant pleaded guilty to one count of indecent assault, contrary to section 141 (1) and one count of defilement, contrary to section 142 (1) of the Penal Code. He was sentenced to two years imprisonment for the indecent assault and eleven and a half years for the defilement, both sentences to be served concurrently. By an amended Notice of Appeal, he seeks leave to appeal against the sentence for defilement on five grounds:

[2] Both offences were committed on the same day against the same victim, a girl of three years and seven months old. The appellant is 35 years old and the brother of the victim's father.

[3] The offences took place on an unknown date between 1 December 2007 and 4 January 2008. The girl was in a room with the accused at the home where the accused was residing. The accused undressed the little girl and touched her vagina with his fingers. He also undressed himself, pushed his penis into the victim's vagina and ejaculated. The victim felt pain as it took place.

[4] Some days later the victim complained of soreness and pain in her vagina. Her mother asked why it was sore and the little girl replied, "Rina". She was taken to the local hospital and then transferred to a larger one where she was examined on 21 January 2008. The doctor confirmed there was evidence of vaginal penetration and that the child had a gonococcal infection. An examination of the accused the following day revealed that he had an active infection of gonorrhoea.

[5] The trial was held five and a half years later. We are advised that the appellant was originally arrested in 2008 and bailed. He breached his bail and was not then apprehended for some five years.

[6] At the trial, he initially pleaded not guilty and the complainant was brought into court to testify. The learned judge, in his sentencing judgment, described that moment:

"When the complainant was brought into court it was obvious to all that she was neither able nor ready and was in no condition to testify. She could be heard in great distress outside the court and when she was brought into court she was sobbing and trembling and clung tightly to the policewoman accompanying her. It eventuated that not only was she unable to give evidence she was unable even to speak, barely acknowledging what was said to her by simply nodding or shaking her head. I was not satisfied that she was capable of giving evidence without suffering further trauma and there was a real question as to whether or not she understood the importance of telling the truth in court.

As a result the complainant was excused from further attendance that day and invited to return the following day in the hope that she would be in a better emotional and psychological state.

On the second day of the trial, [counsel] asked that the accused be re-arraigned. When the charges were put to him again, the accused pleaded guilty to both counts. No further evidence was called.”

[7] Later, when dealing with the effect of this offence on the child, the judge returned to that moment in the trial. Having referred to the appellant's total disregard for the safety, health and well being of such a small child, he continued:

"I have no doubt that the sight of her distress played no small part in the accused changing his plea to guilty on the second day of the trial. Whilst it was an extremely late plea, it was at least a merciful one."

[8] The trial in the High Court started on 10 June 2013 so the child had, by that time, just passed her ninth birthday.

[9] The prosecution asked the court to regard the transmission of gonorrhoea as a substantial aggravating feature but it was denied by the defence. The judge directed the trial of that issue before he passed sentence. Following the trial, the judge accepted that it had been proved beyond reasonable doubt that it was the appellant who gave the child gonorrhoea but that the Crown failed to prove to the same standard that, when the appellant had sexual intercourse with the little girl, he did it knowing that he was infected.

[10] The learned judge was referred to a number of previous sentences for defilement and rape. In one of those cases, Soni v R [2013] SBCA 6, this Court had referred to the lack of information as to the prevalence of these offences. However, the judge referred the Court to the second interim report of the Solomon Islands Law Reform Commission published, after the Soni case, in June 2013. Following a countrywide study, the Commission made reference to an “alarming level of sexual violence” and recommended the creation of new sexual offences and increases in penalties for others. It noted that, in comparison to our nearest neighbours in the Pacific Islands, sentences for sexual offences in Solomon Islands are low.

[11] The Court has not been provided with a copy of that report but we accept the learned judge’s reliance on the accuracy of the figures in the interim report.

[12] It was suggested by counsel that this Court might suggest a tariff to assist courts to maintain some consistency in sentences for defilement. It is certainly clear, from the number of cases of rape in which the tariff set out in R v Ligiau and Dori [1986] SBHC 15 is proposed as a basis of sentence, that the courts are assisted by such guidance.

[13] There can be no doubt that offences of defilement frequently present a close parallel to offences of rape and the maximum penalty under section 142 (1) of life imprisonment is the same as that for rape. However, the circumstances in cases of defilement can be so different from one offence to another in respect, for example, of the ages of the victims, the likelihood that the accused is in a position of trust and the nature of that trust and the long-term detrimental effects on the victims that the courts must continue to assess the appropriate sentence on the nature and individual circumstances of the case before it.

[14] However, in the light of the similarity to rape cases, we consider that it may be helpful to give a very limited degree of guidance in terms of a starting point. It cannot be more than very imprecise but may ensure that courts avoid the unfortunate tendency of ordering sentences which are far too lenient for such a serious offence.

[15] The Billam guidelines set three starting points; five, eight and fifteen years. Although the age of the rape victim is always a factor, we consider that, when the victim is a child below the age of consent, that should always bring the starting point up to eight years.

[16] Defilement does not need evidence of lack of consent. It has long been the law that a child under sixteen years cannot consent and so the fact of the sexual intercourse and the child’s age is sufficient to found a conviction. As the offence of defilement always and necessarily involves lack of consent, it is difficult to understand why the courts in this jurisdiction continue to pass sentences for defilement below, and often substantially below, the sentence they would pass if the charge had been rape.

[17] The English Court of Appeal in Millberry v R [2002] EWCA Crim 2891 warned of the dangers of double accounting when considering the aggravating aspects of a case. We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.

[18] The aim of guidelines is to give the sentencing judge general guidance on the appropriate level of sentence. They can do no more. They can never take away from the judge the determination of what is the proper and appropriate sentence for the particular case the court is considering. In all such cases the judge should bear in mind the warning given in Millberry;

“[G]uidelines ... can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines. It is essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances. Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately. Guideline judgments are intended to assist the judge arrived at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge."

[19] In the present case, the extreme youth of the victim prompted the trial judge to state:

“A crime of this dimension is difficult to comprehend. To assail a completely helpless infant in such an offensive way is a complete affront to the dignity and humanity of the child. The community is rightly repelled by such sickening, self indulgent conduct particularly where there is a total disregard of the safety, the health and the well being of such a small child. This is an invasion of such dimension that, after seeing the child in court, one can only hope that someday she will recover sufficiently to lead a life without fear and trepidation. It will, however, be a very long road for her and her family.”

[20] The facts of this case certainly merit such comments. The learned judge listed the aggravating factors as the very young age of the child, the disparity, of about thirty years, between the ages of the child and the appellant, the position of trust because of his relationship as uncle of the child, the physical harm the offence had on the victim including the infection with a serious disease and the visible emotional and psychological impact on the child.

[21] He also noted the fact the appellant had no previous convictions, that he was married with two small children and his wife has died since these offences took place, that he is unemployed and had a limited education. Finally he bore in mind the plea of guilty which, albeit very late, saved the girl from giving evidence.

[22] The most important mitigating effect of a plea of guilty in a sexual offence and in any case involving a young child is that it saves the complainant from the distress of having to relive the trauma from the witness box. It is also frequently accepted as a sign of remorse and realisation of the wrong the accused has done. Finally and too a much lesser extent (see Millberry) is the pragmatic fact that it saves the court time and expense.

[23] The judge considered that an offence against a child is more serious than the same offence against an adult and attracts a higher starting point. He then decided that the appropriate starting point was ten years. He explained:

“Following the principle enunciated in Millberry, in my judgment the starting point for sentencing those who are being convicted of the crime of defilement with a feature of aggravation should be imprisonment for ten years. The feature of aggravation which I take into account in this regard is the significant age difference between the accused who was in his thirties and the complainant who was three years old.

In my judgement this is precisely the sort of case as mentioned in Billam, where the circumstances of the case warrant a departure from the starting point. The circumstances I refer to here are the extremely young age of the complainant (as opposed to the age difference between the complainant and the accused), the betrayal of trust by the accused in his position as uncle to the complainant, the physical harm done to the complainant by the accused and the emotional impact that this experience has had on the victim. These additional and very serious factors add substantially to the appropriate sentence for these offences and I consider that an additional four years imprisonment would be appropriate."

[24] He then reduced the sentence by two and half years to reflect the plea of guilty leaving a total of eleven and a half years. The sentence for the indecent assault, about which the appellant makes no complaint, was ordered to be two years imprisonment to be served concurrently.

[25] Whilst we do not interfere with the final sentence, we feel the proper reason for a higher starting point is the fact the offence was committed against a child. The other aggravating features to which the judge refers, including the significant difference in the ages of the appellant and his victim, clearly collectively warrant a substantial departure from that starting point.

[26] There is no doubt that the very young age of the complainant is a serious aggravating feature in this case, which, in itself, should increase the sentence substantially over the starting point. That factor also makes the remaining aggravating features more serious than they would have been had the child been much older and we would accept the judge’s assessment that they collectively merit four additional years.

[27] The offence of defilement is one of a number of offences designed to be part of a child protection regime. Any civilised society must protect its children from the predatory activity of some adults. Crimes against children must be regarded more seriously because of those considerations.

[28] We note from the previous sentences referred to by counsel that the courts in Solomon Islands have almost invariably passed lower sentences for defilement than for rape. There is no logical reason why this should be the case. The fact that the victim is a child below the age of consent and sometimes, as in this case, so young she could not do anything to prevent the attack makes many such cases deserving of a more severe penalty than a rape case with similar circumstances save for the young age of the complainant.

[29] The judge was correct to make some reduction for the plea of guilty. 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. We have set out above the judge’s description of the child’s distress at being brought to court and, whilst it maybe correct that it was the sight of her distress which engendered the change of heart in the appellant, it was only at that stage that he showed any indication of wishing to spare the young girl. A deduction of two and a half years for that was over generous and our view is that it justified no more than six months. Although we have followed a different route, we have reached the same sentence.

[31] The last ground suggests the learned judge failed to allow for the time the appellant spent in custody before he was sentenced. Whilst it is common for the sentencing judge to give credit for such time, it is not inevitable. In the present case, the Court was advised that the appellant had been granted bail after his initial arrest but failed to comply with the terms of his bail. As has been pointed out he then evaded the police for five years. Unsurprisingly, once he was apprehended, he was detained in custody until the trial. We see no reason why he should be given credit for that period. Having been granted bail, the decision not to comply was his and his alone. Had he not chosen to try and avoid the trial, he would have remained on bail.

[32] The appeal against sentence is dismissed and the sentence of eleven and a half years confirmed.

Court of Appeal of Solomon Islands

Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)