Regina v Bonuga [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua, J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 12 of 2014 (On Appeal from High Court Criminal Case No. 310 of 2012)
DATE OF HEARING:	6 OCTOBER 2014
DATE OF JUDGMENT:	17 OCTOBER 2014
THE COURT:	Justice Goldsbrough, P, Justice Williams JA., Sir John Hansen, JA.
PARTIES:	Regina - V - Casper Kwane Bonuga
Advocates: Appellant: Respondent:	N. Dita, Director of .Public Prosecutions A. Kesaka, Public Solicitor
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED	Allowed
PAGES	1-9

JUDGMENT OF THE COURT

Appeal allowed.
The respondent is sentenced to 10 years imprisonment on all 3 counts to be served concurrently.
The sentences are to run from 10 October 2012.

[1] The appellant, following trial before Mwanesalua J, was convicted of three counts of rape. He was acquitted on counts 3, 4, 5, 6 and 7.

[2] On 27 February 2014 he was sentenced to an effective term of three years, six months' imprisonment, being three years on count 1; three years on count 2; and three years and six months on count 8. All sentences were to be served concurrently from 10 October 2012.

The appeal

[3] The Crown appeals on the following grounds:

1. That the learned trial Judge erred in law when he failed to apply the correct principles relating to the computation of starting points and adjustments upwards according to aggravating factors;
   
2. That the learned trial Judge erred in law when he imposed sentences that were manifestly inadequate having regard to all the circumstances of the case;
   
3. That the learned trial Judge erred in law when he failed to apply the correct principles relating to multiple offences committed under separate circumstances, treating the different sentences as concurrent with each other rather than consecutive.
   

The facts

[4] The victim was born on 4 October1996. The appellant was her adopted father. She was adopted at birth. The appellant raped the victim on an unknown date between 1 January 2008 and 13 December 2008. The appellant's wife was away, and he asked the victim to have sexual intercourse. On her refusal, he forced her by holding her tightly, pulled her clothes down and thrust his penis into her vagina. She felt pain in her vagina. The victim turned 12 in October of that year.

[5] On an unknown date in 2009 the appellant asked the victim to accompany him to the store to purchase biscuits and coffee. On the way back from the store, he pulled her to a damaged vehicle at the side of the road, laid her on the vehicle and told her to remove her clothes. On refusal, he pulled down her clothes and thrust his penis into her vagina. This was painful. In 2009, the victim turned 13 in October.

[6] Finally, in September 2012 the appellant asked her to have sexual intercourse but she refused. He forced her head down to suck his penis, and then had sexual intercourse with her after he had removed her clothes. She was 15. Following that, her uncle removed her from the defendant's care.

[7] In his verdict, the Judge accepted that the appellant threatened to kill the victim if she ever reported the offending to other people.

Sentence

[8] The Judge acknowledged the serious aggravating features in the case: the abuse of the relationship of trust as an adopted daughter; the disparity of age; her ages of 12, 13 and 15 when the offences occurred; the fact that two of the offences occurred in the family home, which the victim was entitled to regard as a sanctuary; and the debasing act of requiring her to suck his penis before the rape in September 2012.

[9] He accepted as mitigating factors the delay in taking the defendant to Court; that there was no evidence the victim had suffered severe or lasting psychological harm; and the defendant was a person of previous good character with no criminal record. He further stated:

[5] It is plain to the Court that the offences in counts 1, 2 and 8 of the information arose from the repetitious behaviour of the defendant, involving the same offences and the same victim.

[10] It is unclear whether the Judge viewed this as an aggravating or mitigating factor, but in light of the sentence imposed, we can only assume that somehow it was said to mitigate the offending.

Submissions

[11] The submissions from the Crown on grounds 1 and 2 are brief. In fairness, however, in relation to ground 2 they do refer to the submissions made to the sentencing judge.

[12] The submissions on ground 3, as to whether the sentence should be served concurrently or consecutively, are developed at greater length. However, the fundamental point is that there were three counts upon which the respondent was sentenced, and they could not be treated as part of one transaction to warrant the imposition of a concurrent sentence.

[13] The respondent referred to Berekame v DPP [1986] SBHC 10; [1985-1986] SILR 272 and Iroga v Regina [2014] SBCA 11; SICOA-CRAC 24 of 2013 (9 May 2014). In the light of those cases the respondent submitted that the judge imposed a sentence in line with other sentences imposed in similar circumstances and this court should not interfere with the exercise of his discretion. They referred us to a number of similar sentencing decisions in the High Court.

[14] The respondent said the starting point is established by R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986), as confirmed by this Court in Soni v Regina [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013).

Decision

[15] There have been a number of decisions handed down by this Court recently dealing with the sentencing of sexual offenders against young people. Soni is but one of them. In the corresponding session last year, two decisions dealing with defilement were handed down that approved a marked increase in the level of terms of imprisonment imposed for that offence. Defilement, of course, is unlawful sexual intercourse with a girl. Central to the two offences under ss 142 and 143 of the Penal Code Cap 26, is that there is no requirement on the Crown to prove consent. If the girl is under 13 at the time of the offending, the sentence is the same as for rape, i.e. liable to imprisonment for life. If the girl is between 13 and 15 years, it is a misdemeanour and the maximum term is one of five years' imprisonment.

[16] We consider cases of defilement are appropriate to consider when imposing sentence for the rape of young victims. In R V Pana Criminal Appeal Case No 1 of 2013, 8 November 2013 we said at [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 activities of some adults. Crimes against children must be treated more seriously because of those considerations."

Rape is equally a provision to protect not only girls and young persons, but all woman from sexual assault. It could be argued that rape is a more serious event given the crown has to negative consent. The Crown referred to Pana in their sentencing submissions below where this court upheld a sentence of 11 and a half years for defilement of a girl aged only three years and seven months.

[17] In Soni the Court disagreed with the sentencing Judge's approach in increasing the established starting point based on claims of prevalence of such offending in the absence of evidence to support such a view. However, in Pana at [10] this Court stated:

[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.

[18] In that case this Court accepted the learned Judge's reliance on the accuracy of the figures in the interim report. We confirm that approach.

[19] We accept that in Iroga this court stressed that it is useful for a sentencing judge to consider sentences imposed in similar cases. However, they will be of little assistance where those sentences stray from principles laid down by this court. In another defilement case, R v Bosamete [2013] SBCA 5; SICA CRAC 5 & 6 of 2013 (8 November 2013), it was stated at [48]:

This Court has also considered the earlier sentences cited from this jurisdiction and share the learned judge's view of their leniency and inappropriateness. In this session of the Court, we have heard an appeal against sentence in another defilement case and have stated our views of the levels of sentencing. The case is Pana v R, Criminal case no 13 of 2013 and our conclusions on the appropriate level of sentencing in such cases apply equally to this case.

[20] Those comments in the two defilement cases are equally apposite in cases of rape of young people and we reiterate them in that context. The authorities relied on by the respondent in this appeal also indicate to us that the principles of Ligiau, affirmed by Soni, are not being applied. It is therefore necessary to restate again what was said in Billam:

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. (our emphasis)

[21] Many of the cases referred to us were cases where there was a relationship of responsibility between the rapist and the victim in the sense they were related persons who owed a young person a duty of responsibility. The starting point on established authority in this jurisdiction should be 8 years based on the emphasised passage above. But that passage covers a multitude of possible relationships. In our view, it is time to say in this jurisdiction that if the rape is of a child or young person, an appropriate starting point is eight years' imprisonment. We also stress that the younger the child or young person or child the greater the aggravation as is recognised in Billam and adopted by Ward CJ in Ligiau and Dori.

[22] The respondent in this case submits that, given there are one or two aggravating features present, a starting point of six or seven years would have been appropriate. Both the sentencing Judge and the respondent's counsel appear to have overlooked the passage we have cited and emphasised above that sets the starting point in a contested case at 8 years. In any event, there were a number of extremely serious aggravating features in this case. First, the victim was a child aged 12, 13 or 15 at the time of the offending. Secondly, the respondent was in a position of trust as the victim's adopted father. There was a significant age disparity; threats of harm if she told on him; and the fact that two of the offences occurred in the sanctity of her own home. It appears necessary for us to say that serious aggravation is something that requires an uplift in terms of years, not weeks or months. In this case there are multiple serious aggravating features present.

[23] There is little that can be said in mitigation. The matter went to trial, demonstrating that the respondent showed no remorse. The delay in reporting the matter to the police and it proceeding to trial is not a mitigating factor. It is a feature far too common in offending of this sort. There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.

[24] Finally, this was not a case of repetitious behaviour of the respondent involving the same offences and the same victim. It was three distinct and discrete episodes of rape. The Judge appears to have used this concept of repetitious behaviour as a mitigating factor. If so he was in error. However, having said that, consecutive sentences are not appropriate in this case. Rather, the totality principle needs to be applied.

[25] We have said above that an appropriate starting point, in accordance with Ligiau and subsequent appellate cases, is eight years' imprisonment. For the aggravating features mentioned above there should be an appropriate uplift of four years' imprisonment, giving a sentence of 12 years' imprisonment. For the minor matter of mitigation, his previous good behaviour, which is contradicted by this offending in any event, there should be a one-year deduction. Given that this is a Crown appeal, we would allow another year.

[26] We would add that we are not advocating a mathematical formula in sentencing. Rather taking a starting point, adding for aggravating features and reducing for mitigating ones is a good check for a sentencing judge to ensure that the final sentence imposed is an appropriate one.

[27] Accordingly, the appellant is sentenced on each of the three counts to ten years' imprisonment, concurrent. The sentences are to run from 10 October 2012.

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Justice Edwin P. Goldsbrough (P)
President

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Justice Glen Norman Williams (JA)
Member

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Justice Sir John Hansen (JA)
Member