Soni v Reginam [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 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. 76 of 2011, 128 of 2011, 95 of 2012 (Pallaras J)
COURT FILE NUMBER:	Criminal Appeal Cases No. 27, 28, 35 of 2012
DATE OF HEARING:	17 and 23 April 2013
DATE OF JUDGMENT:	26 April 2013
THE COURT:	Goldsbrough, President Sir Gordon Ward, JA Mwanesalua, JA
PARTIES:	Elijah SONI 1st Appellant Peter SUPA 2nd Appellant Leslie CHACHIA 3rd Appellant
	-V-
	Reginam (Respondent)
ADVOCATES:
Appellant:	Kesaka for 1st and 3rd appellant
	2nd appellant in person
Respondent:	Iomea for respondent
KEY WORDS:	Rape sentencing guidelines
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Allowed
PAGES:	1-13

JUDGMENT OF THE COURT

1. In each of these three cases the Appellant has been convicted of rape and has made application for leave to appeal against sentence. In each case we grant leave to appeal and treat this hearing as the hearing of the substantive appeal. In one case where it was necessary leave to appeal out of time was also granted.

CAC 27 of 2012

2. Elijah SONI (1st Appellant) was convicted following trial of the rape of a thirteen year old female. He was sentenced to nine years imprisonment with no allowance given for pre-trial detention. The offence was committed on 19 January 2012, arrest and detention as from 22 January 2012, conviction on 31 August 2012 and sentence imposed on 7 September 2012. The sentencing judge found that the victim was dragged a short distance into an area of bush where the act of rape was committed, that the victim was threatened with an axe into keeping quiet, and that the offence was premeditated. There was an age difference of 12 years between the victim and her attacker.

CAC 28 of 2012

3. Peter SUPA (2nd Appellant) was convicted following trial of the rape of a 24 year old woman in Green Valley, Honiara. Having been sheltering from rain with others, when those other left, the Appellant locked himself and his victim inside his premises and raped her, threatening violence with a knife. The attack was described by the judge as prolonged and sustained although opportunistic rather than premeditated. The offence took place on 26 May 2010, conviction 23 August 2012 and sentence 31 August 2012. The Appellant was sentenced to eight years imprisonment, with time spent in pre-trial custody being taken into account.

CAC 35 of 2012

4. Leslie CHACHIA pleaded guilty on 5 October 2012 to offences of assault criminal trespass and rape (all arising from the same behaviour on 28 August 2009) and was sentenced to a total of ten years imprisonment on 12 October 2012. The sentence was deemed to have commenced on 26 February 2012. The rape was committed by this 21 yr. old Appellant on a woman of 65 years, in her own home which the offender broke into by kicking open the door. He was intoxicated. He punched his victim in the mouth, on her shoulder, breast, back and ribs. At the time of the rape the victim was unconscious. She spent eight days in hospital as a result of this attack.

Common factors

5. The grounds of appeal against sentence in each case include the notion that the sentence is manifestly excessive. Each Appellant has been convicted, either after trial or on a plea, of the offence of rape. In each case the sentencing judge discussed the relevant sentencing guidelines for that offence. It is for these reasons that this Court has decided to deal with all the three appeals together.
   
6. Ward CJ, as he then was, in R v Ligiau and Dori [1986] SBHC 15 SILR (3 September 1986) sets out and adopts the views of Lord Lane CJ in R v Billam [1986] 1 WLR 349 as far as sentencing practice in England and Wales at that time for the offence of rape. In Billam it was said:-
   

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate. Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event be treated as aggravated by any of the following factors:

(1) violence is used over and above the force necessary to commit the rape;

(2) A weapon is used to frighten or wound the victim;

(3) the rape is repeated;

(4) the rape has been carefully planned;

(5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

(6) the victim is subjected to further sexual indignities of perversions;

(7) the victim is either very old or very young;

(8) the effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point. The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence."

7. Over time, this Court itself has had occasion to consider those sentencing guidelines adopted in Ligiau and Dori. They were considered in R v Foa [2010] SBCA 1. In Foa can be found reference to previous occasions when the principles were endorsed. This Court in Nickson SICOA CRAC 11 of 2008 endorsed what was said in Ligiau and Dori, as did this court in Niulifia [2005] SBCA 4.
   
8. In England and Wales, the opportunity to review the guidelines set out in Billam arose in R v Millberry [2003] 1 WLR. The Court of Appeal in Millberry had the benefit of advice from the Sentencing Advisory Panel for England and Wales and noted that the advice of the panel "retains the basic structure established in R v Billam, but with some significant modification to take account of both new legislation and changes in the nature of the offence since the existing guidelines were issued." Many of the legislative changes referred to do not, of course, apply in this jurisdiction whereas some of the changes in the nature of the offence are applicable here.
   
9. The Court of Appeal for England and Wales in Millberry accepted the advice and comments of the sentencing advisory panel as to starting points and indicated that this meant no substantial departure from the general approach laid down in R v Billam.
   
10. The effect of that decision is to leave the five, eight and fifteen year starting points set out in Billam intact.
    
11. Just as the Court of Appeal for England and Wales has determined, it is the view of this Court that the guidelines adopted in Ligiau and followed subsequently both in the High Court and this Court of Appeal are not in need of substantial change. The offence of rape, its seriousness, its potential effect on the victim, and the need for the imposition of a custodial sentence, in our view, over time has not changed. Guidelines with regard to sentencing should be regarded as sufficiently flexible to take into account any societal changes that may have taken place over time. As noted in Millberry:-
    

"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 arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge."

12. Aggravating features found to exist within any particular offence may, and should, be taken into account by the sentencing judge provided that the effect on the sentence is not duplicated. Having adopted, for example, the eight-year starting point because the particular offence involves breaking into the victim's house, a further departure from the starting point because of the same or similar factor will lead the sentencer into error. The presence, however, of more than one of those features of aggravation may suggest that a departure from the starting point is appropriate. As indicated in Billam, where any one or more of these aggravating features are present, "the sentence should be substantially higher than the figure suggested as the starting point".
    
13. Where the sentencing judge feels constrained to depart from established guidelines he or she is entitled to do so if the circumstances of the case warrant such a departure. In that instance, it is simply necessary for the sentencing judge to give reasons for the departure from those guidelines. That, in the High Court, may well be considered preferable to purporting to change guidelines that have been approved by the Court of Appeal.
    
14. An acceptable reason for departure from a starting point may be the prevalence of the offence at the time of sentencing or indeed at the time the offence occurs. Prevalence itself may well be of temporary nature and thus not warrant a permanent change to guidelines. In particular if it is the case that several deterrent sentences have the effect of reducing the incidence of that particular crime, that being their stated aim, then the alteration to sentencing guidelines will have been unnecessary. Guideline changes through nothing but prevalence carry with them their own obsolescence.
    
15. We would suggest that departure from guidelines based on prevalence be supported by some evidence or at least a submission to that effect from the party seeking to persuade the Court of its existence.

Effect of a guilty plea

16. All the cases referred to above make particular mention that the effect a guilty plea should have on the sentencing decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting points set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also demonstrates that the offender appreciates how wrong his conduct was and regrets it.
    
17. It is principally for these two reasons that the sentencing judge should consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005), Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea, whereas the English authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilty plea to the victim. A maximum discount of one third may well be considered appropriate in some circumstances.
    
18. We now turn to consider the particular circumstances of each individual appeal.

CRAC 27 of 2012

19. Elijah SONI appeals against his sentence on four grounds. His first ground is that the sentence is manifestly excessive his second and third grounds relate to the fixing of starting points and the fourth ground relates to the manner in which factors of aggravation are identified and dealt with by the sentencing judge.
    
20. We have earlier indicated that we do not consider the mere passage of time since Ligiau requires any change in the starting points for the offence of rape, and to the extent that the sentencing judge in this case has determined that such a change is required we respectfully disagree. In particular, we note that the reason given for this proposed change, over and above effluxion of time, is a 'never ending stream of rape cases coming before these courts', for which it appears there is no evidence in support. We are also told that it was not part of the Crown case that prevalence in particular exists or existed in January 2012.
    
21. The facts as found by the trial judge and referred to in sentencing remarks indicate that the offence was not accompanied by any of the features identified in Ligiau as warranting a starting point other than five years. In particular, the judge found that the victim was not subjected to detention or violence beyond that necessarily involved in the offence of rape.
    
22. What was present in this instance was an offence committed on a young person thirteen years of age at the time of the offence and an age difference of twelve years. That is a factor of aggravation identified and, in our view, properly so in Ligiau which merits an increase in the sentence beyond the starting point of five years. In addition to that a weapon was referred to in repeated threats to ensure the silence of the victim.
    
23. Of perhaps less significance is the suggestion of premeditation. Whilst there is evidence that the defendant had some interest in settling a score with an uncle of the victim through past disagreement, there was no evidence that this offence was other than opportunistic which carried with it the side effect of interfering with the older man's family at the same time. This does not represent, in our view, planning of the offence itself. There is no evidence of how the encounter came about. There is no evidence of a plan, merely of a reason for doing as was done to the victim which could equally be described as a reason for the offence rather than premeditation.
    
24. The Appellant did not enter a guilty plea to the offence of rape. He did offer a plea of guilty to the lesser offence of defilement, admitting at least that the act of sexual intercourse took place. That this should not attract any discount on the sentence for the offence of rape is quite clearly correct.
    
25. Given the aggravating features of this offence as found by the sentencing judge, we consider that the five year starting point is the correct starting point and that from that starting point an increase of two years imprisonment adequately and properly represents those features of aggravation. The appellant, as referred to in the judgment, is a first offender. We consider that an immediate custodial sentence of seven years to be the correct sentence for this offence and order accordingly. We further order that account should be taken of any period of pretrial detention. There is no reference in the sentencing remarks as to how that pretrial detention should be considered but in the absence of special circumstances we feel that it should be taken into account when determining how long the offender must remain in custody after sentence.
    
26. We also consider that there is no need, after the trial has ended, to refer to the thirteen year old victim by name, lest that name be forever quoted when judgments are referred to in future cases.
    
27. This appeal against sentence is allowed. A sentence of seven years imprisonment is substituted with the sentence deemed to take effect from the date the appellant was first taken into custody for this offence.

CRAC 28 of 2012

28. Peter SUPA sets out on his own behalf the grounds of appeal against sentence in this matter which are twofold; being manifestly excessive and an error in holding that the starting point for rape ought to be eight years. For the reasons set out above we agree that the starting point for an offence of rape absent aggravation should be five years.
    
29. This was an offence from 2010 and the conviction followed a contested trial. The victim was a woman of 24 or so years. It took place in Green Valley, Honiara inside the appellant's market stall. The aggravating factors set out as found by the sentencing judge appear at paragraphs 10 to 12 inclusive of his judgment. The offence itself falls clearly within the five year starting point.
    
30. Those factors identified in the judgment fall within the category of aggravation, which may be used in an appropriate case to increase the actual sentence imposed, including threats to the victim with a weapon to ensure her silence and locking the premises so that the victim has less opportunity to escape from her assailant. There is also some suggestion that the offence was committed in the presence of a young child. That factor itself has been held capable of amounting to circumstances of aggravation.
    
31. We consider that a period of two years in addition to the five years' imprisonment properly reflects the seriousness of this particular offence. That would indicate a total sentence of seven years imprisonment, with time spent in pretrial detention to be taken into account as the sentencing judge himself did order.
    
32. The appeal against sentence is allowed and we order accordingly the substitution of a sentence of seven years imprisonment.
    

CR 35 of 2012

33. Leslie CHACHIA appeals against a sentence of ten years for rape. He pleaded guilty to three offences all arising from the same course of conduct including the rape. The four grounds of his appeal against sentence include; manifestly excessive, error in fixing a starting point of seven years for a non-aggravated rape and nine to ten years for an aggravated rape and an error in dealing with factors of aggravation.
    
34. The facts of these offences were summarized in a concise statement of facts presented to the Court. They are as follows:-
    

In the early hours between 2 and 3 AM 28 August 2009, the accused, Lesley Chachia, without lawful excuse kicked open the door of the dwelling house of the victim Mrs. Nestor Mudu. Once inside the house the accused unlawfully assaulted the victim occasioning her actual bodily harm by punching her in the mouth, breast, shoulder, ribs and back. The accused extinguished the victim's lamp and the room became dark. The accused tried to lay the victim down, but she struggled, and so the accused pulled her down. The victim was by then unconscious, and then the accused proceeded to commit rape on the victim. When the victim gained consciousness she felt something like water drop on her leg, and she felt the accused jump over her and run away. The accused was 21 years old. The victim was 65 years old and a widow. The accused was intoxicated at the time of the offending. The medical report of the victim dated 31 August 2009 indicates that on the jungle examination there was a tear to the upper part of the urethra being 1 cm in length and .5 cm in depth. The report also points out that the injury was recent and it was suggestive of possible rape. Furthermore, the report indicates scratches and tenderness on the back; scratches and the haematoma on the left arm of the victim; a haematoma on her upper lip; a swollen nasal bridge and bruising on the left and right breasts. The victim received antibiotics and NSAIDs for pain and was discharged on day eight of admission.

35. The starting point for an offence of rape involving breaking into the victim's premises we have earlier set out as eight years imprisonment. Above and beyond that aggravating feature in this instance there is also to be taken into account the age of the victim and violence used upon her more than necessary to commit the offence of rape. Those additional factors, in our view, will add substantially to the appropriate sentence for these offences. We consider an additional four years in prison would not be inappropriate. This would indicate a sentence of 12 years imprisonment before taking into account any applicable credit to be given for the guilty plea.
    
36. In his remarks the sentencing judge indicated that he was prepared to give full credit for the guilty plea. There seems to be no reason why this should not be the case. We have set out above the reasons why the guilty plea should result in some reduction of the applicable sentence and this case seems to be no different.
    
37. In arriving at his sentence of 10 years imprisonment the sentencing judge appears to have applied a starting point of between nine and 10 years imprisonment thereafter increased that sentence by a further four years because of aggravating features. It is not clear from his judgment whether the same aggravating features which indicate a nine to ten year starting point feature again in the increase to 14 years. We refer again to Billam and the warning against double counting.
    
38. In addition, given as reason for re-affirming his own sentencing guidelines set out in earlier cases are what the sentencing judge regarded as a serious increase in number of rape offence. He had, as pointed out earlier, no evidence before him of such an increase and no statistical basis for that conclusion. Local knowledge is often used by judges concerning matters for determination but in this instance it is difficult to see, other than these three cases coming before him in rapid succession, where the knowledge can be found.
    
39. Applying the appropriate credit for a guilty plea the correct sentence in this case for the offence of rape is an effective nine years imprisonment deemed to have commenced from 26 February 2012 the date on which we are advised the appellant first went into custody for these offences. For the offences of assault and criminal trespass for which the appellant received sentences of 18 months imprisonment to be served concurrently we make no order as there is no complaint in relation to those sentences. The appeal against sentence is accordingly allowed and a sentence of nine years imprisonment is substituted.
    

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Justice Edwin Goldsbrough
President

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Sir Gordon Ward, JA
Member

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Justice Mwanesalua, JA
Member