Regina v Gua [2013] SBCA 2; Criminal Appeal Case 37 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from Judgment of the High Court of Solomon Islands Criminal Case No. 195 of 2011 (Apaniai, J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 37 of 2012
DATE OF HEARING:	24 April 2013
DATE OF JUDGMENT:	26 April 2013
THE COURT:	Goldsbrough, President Sir Gordon Ward, JA. Mwanesalua, JA.
PARTIES:	Regina (Appellant)
	-V-
	Macberth GUA (Respondent)
ADVOCATES:
Appellant:	J. Naigulevu & R. Iomea Appellant
Respondent:	D. Hou Respondent
KEY WORDS:	Rape
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Allowed
PAGES:	1 – 6

JUDGMENT OF THE COURT

1. This is an appeal against sentence brought by the Director of Public Prosecutions under section 21 (1) (b) of the Court of Appeal Act [Cap 6]. That subsection provides for an appeal against sentence where in the opinion of the Director the sentence imposed is manifestly inadequate.
   
2. The Respondent was convicted after trial before the High Court on 12 November 2012 and sentenced on 5 December 2012 to a term of imprisonment of four years for the offence of rape.
   
3. The learned sentencing judge was also the judge who had presided over the contested trial and he therefore was well acquainted with the facts of the offence, which facts he set out in his decision as to verdict. The victim and the Respondent were married to each other. She had deserted him and commenced a relationship with another man, living with him as his wife. The Respondent arrived at the place where his victim was and demanded that she get into his taxi. The victim was forced into the taxi, which was then driven by the Respondent to Foxwood and an area of palm oil plantation. En route there was discussion about reconciliation which the victim was not interested in hearing or acting upon. It must have been clear to the respondent that his wife was not interested but he persisted. Having forced the victim into the rear seats of the taxi the respondent then by force had oral and vagina or sex with the victim. The victim suffered torn clothing and scratches.
   
4. At paragraph 3 of his sentencing decision the learned judge said:-
   

"Suffice to say that this is a sad case. It is the result of a marriage that has gone bad. The victim had unilaterally terminated her marriage to the accused in her own style and at her own timing. She eloped with a new lover."

5. The learned judge then set out the sentencing guidelines to be found in the case of R v Ligiau and Dori in which for rape committed by an adult without any aggravating or mitigating features a figure of five years was considered and approved as the correct starting point in a contested case. He then continued to consider the remarks of Pallaras J in R v Soni wherein it was suggested that the five year starting point should be changed to a seven year starting point. In the course of those remarkable the judge expressed his agreement with that new starting point.
   
6. Thereafter the judge discussed the offence and referred more than one of the circumstances as between a husband and wife, at one point referring to this as a case of marital rape.
   
7. At paragraph 18 of his sentencing decision, the judge set out those matters, which he regarded as mitigating factors. He pointed to the fact that no weapon was used, that no serious injuries were inflicted, and that this was a one off incident. He noted that the Respondent was the first offender, a young man with a good chance of rehabilitation and that no additional force other than that necessary to commit the offence of rape was applied. He then went on to consider the effect any sentence may have on her two children of the marriage then in the care of the respondent's aged mother.
   
8. At paragraph 22 of his sentencing decision he expresses the view that marital rape should be treated no less seriously than any other rape case.
   
9. Taken together, those findings indicate that the sentencing judge was dealing with a case of rape with few aggravating features. Given that he endorsed the view to be found in Soni of a seven year starting point, it is difficult to see how he then arrives at a sentence of four years imprisonment.
   
10. In the three consolidated appeals against sentence of Soni, Supa and Chachia we have already indicated that we do not agree with the sentiments expressed by Pallaras J in Soni and accordingly leave the guidelines in Ligiau in place. That would indicate a starting point of five years. We believe that there did exist circumstances of aggravation in this case. There was the further indignity of oral sex over and above the vaginal sex, there was the initial attempt at a trick in saying that the victim should get into the taxi because the Respondent wanted to take her to see the children. Finally, we note the sentencing judges' own remarks on premeditation found at paragraph 51 of his verdict and about aggravation at paragraph 20 of his sentencing decision. We respectfully agree with those comments.
    
11. Circumstances of aggravation should result in a substantially higher sentence that the starting point (for which see the guidelines in Ligiau) and matters of personal mitigation should be treated as less significant in the case of sexual offences than in most other serious crimes (for which see also Ligiau at second sentence of judgment).
    
12. Of perhaps greater concern are the remarks of the sentencing judge about an 'underlying cause' for the offence. At paragraph 14 he says:-
    

"This is the first ever case of its kind in Solomon Islands where a husband has been convicted of raping his own wife. It is also a case which has occurred as a result of domestic problems between a husband and his wife. It is not an offence that has been committed to gratify one's own sexual desires. There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused. Hence, the accused is not solely to be blamed for this incident. The complainant must also share the blame."

13. He continued indicating that he felt constrained to take those matters into account in sentencing. We respectfully disagree with the learned sentencing judge when he concludes that the complainant must also share the blame. Whilst we can appreciate that the victim took the steps she felt necessary when she deemed it necessary to bring to an end her living with her husband and how that behaviour could be said to have contributed to the Respondent's attitude towards her, in particular that steps expected in custom not having been observed but we are not prepared to accept that this amounts to an acceptable reason to inflict violence. We are also concerned that his words may be interpreted as the Respondent having some residual rights over his wife, which of course for many years now has not been the case.
    
14. We would go further and set out views expressed in New Zealand and in England and Wales on the same or a similar question. In New Zealand in R v S [1991] TASSC it was said:-
    

"The law has never accepted the use of violence in sexual relations between a man and a woman."

Then the court was considering whether, following a recent reform of the law of rape making rape within a marriage a criminal offence, allowance should be made to allow cultural acceptance of the change.

15. In England and Wales in R v Billam [1986] 82 Cr App R 347 it was said:-
    

"We also attach importance to the fact that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value."

16. Even as long ago as 1891 in England Lord Halsbury said:-
    

"The return seems to me to be based on the broad proposition that it is the right of the husband, where his wife has willfully absented herself from him, to seize the person of his wife by force and detain her in his house until she shall be willing to restore to him his conjugal rights. I am not prepared to assent to such a proposition."

17. In The Queen v AM [2010] NZCA 114 the New Zealand Court of Appeal said:-
    

"Sentencing judges will have a range of information before them and, after trial, will have more information than can be gleaned from the record. In assessing the gravity of offending judges must, of course, do this in a fact specific way focusing on the culpability of the offender and the effect on the victim and, as a corollary, they must not reason by stereotype or seek to turn responsibility for the offending back on the victim, in terms of "she asked for it" or other excuses based on rape myths."

18. We therefore disagree with the learned sentencing judge in his approach to mitigation in this case. Whilst we are prepared to agree that, the case may fall within the five year starting point in Ligiau it is not without aggravation as we have set out above. We regard that aggravation as indicating an additional two years imprisonment over and above the five-year starting point and do not find that the mitigation put forward should have the effect of reducing the sentence down from seven years.
    
19. In passing we note that this case perhaps serves to illustrate a greater problem than out of date sentencing guidelines which is the failure properly to apply such guidelines. Here the judge accepts that there is a need to increase the starting point from five to seven years, finds circumstances of aggravation and then concludes with a four year sentence. Applying the Ligiau guidelines as they are meant to be followed one arrives at a sentence of seven years, and were one to apply the proposed, albeit now rejected guidelines in Soni, one would arrive at a sentence of nine years.
    
20. In the event this appeal against sentence is allowed, the sentence of four years is quashed and a sentence of seven years imprisonment substituted, such sentence to reflect pre-trial period of custody, therefore deemed to have commenced on 28 October 2010 being the date that the Respondent was first taken into custody for this offence.
    

....................................................................
Justice Goldsbrough
President

...................................................................
Sir Gordon Ward, JA
Member

....................................................................
Justice Mwanesalua, JA
Member