Alu v Reginam [2016] SBCA 8; SICOA-CRAC 27 of 2014 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras J)
COURT FILE NUMBER:	Criminal Appeal Case No. 27 of 2014 (On Appeal from High Court Criminal Case No. 145 of 2012)
DATE OF HEARING:	12 April 2016
DATE OF JUDGMENT:	22 April 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	Dick Alu - v - Reginam
ADVOCATES: Appellant: Respondent:	Mr H. Lawry & Mr T. Benetetti, Public Solicitor Mr. Adrian Kelesi, Director of Public Prosecution
KEY WORDS:	Concurrentor consecutive sentences
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED	Appeal against conviction dismissed Appeal against sentence allowed
PAGES	1-7

JUDGMENT OF THE COURT

1. The appellant was convicted following trial on two counts of rape. He was sentenced to a total of thirteen years imprisonment. He now seeks extension of time and leave to appeal against both conviction and sentence. The Court indicated that it would hear counsel on the application and the substantive appeal together.
   
2. Briefly, the prosecution case was that, on the 1 July 2010, the accused, the

Complainant and some other people were travelling to Vella La Vella together in a boat driven by the appellant. The complainant was a 19 year old high school student and the accused was a 36 or 37 year old married man. The other passengers alighted from the vessel at various points until only the appellant and the girl remained on board. It was alleged that the first rape then occurred inside the boat while out at sea near Buruburu Island. The witness told the court how she struggled to prevent him from raping her. At one stage she jumped into the sea to avoid him but had to get back in following the appellant’s threat to drive off and leave her if she did not do so.

3. The boat was then driven to Gizo where the appellant left the girl in the boat while he went to look, he said, for a room. He was unsuccessful. Having returned to the boat, he took the girl to Malakerawa where he had a shower and then again raped her in a market stall.
   
4. It was about 5.00 am on 2 July 2010. The appellant went to sleep and the girl walked to a relative’s house and told her aunt what had happened. The matter was reported to the police on 3 July 2010.
   
5. The issue in the case was whether the sexual intercourse was consensual. There was, in common with many such cases, no direct evidence of the sexual intercourse from any witness other than the victim and the accused. The appellant elected not to give evidence and the learned judge, in a detailed judgment, rejected the defence

allegations and accepted the evidence of the complainant whom he found to be a

credible and careful witness.

Appeal against Conviction

6. The amended notice of appeal advanced the single ground in respect of conviction that the verdict was unreasonable and could not be supported having regard to the evidence. Mr Lawry for the appellant bases his submissions principally on the evidence of the girl’s lack of resistance to the second rape. When the boat arrived in Gizo, it contained a girl who, on her account, had already been subjected to a violent rape and yet, when the appellant left her alone in the boat and went looking for a room in which they could have further sexual intercourse, she stayed and did not take the opportunity to escape. When the appellant returned, he took her to a market stall and had sexual intercourse for the second time to which she offered no physical resistance.
   
7. Her account of the first rape had also acknowledged that, by the time that rape actually occurred, she had given up any physical resistance and the manner in which she failed also to attempt any escape from her erstwhile attacker when the clear opportunity presented itself all pointed, the defence suggests, to consensual intercourse.
   
8. It is well established law that an appellate court will rarely interfere with findings of fact made by the trial judge if there is evidence upon which the judge’s decision could be and was based. A trial judge has the inestimable benefit of seeing and hearing the witnesses - an advantage denied the appellate court - and so the lower court decision will only be altered if it is clearly wrong in terms of the evidence generally.
   
9. The record shows that there was clear evidence which, if accepted by the judge, provided a proper and reliable basis for his decision. In his written reasons, the trial judge gave a detailed account and careful analysis of the evidence. Having reminded himself of the burden and standard of proof, he continued:
   

“The complainant gave her evidence in a manner that showed her to be articulate and intelligent if not a little verbose and intense. She explained in considerable detail the events of those hours at night on the sea which she spent with the accused.

If her evidence is to be believed, she tried many strategies in an attempt to avoid what happened to her. She tried silence, sitting quietly so as not to antagonise the accused or worsen his temper; she tried talking to him in an attempt to persuade him to change his mind, reminding him that he was married and had children and also reminding him of his marriage vows made in church; she tried to escape by jumping from the boat into the sea at night in an attempt to get away; and she also tried physical resistance in holding onto her clothing as the accused forcefully removed them. Unfortunately, for the complainant, due to her total isolation she was totally vulnerable, defenceless and physically overmatched with all of these various attempts proving to be futile. ...

I found her to be a verbose, but credible and truthful witness. I find her evidence as to the occurrence of the rapes to be clear and convincing. The complainant’s description of her physical and mental state, convinces me that her arduous ordeal on the boat so traumatised her that by the time she had been returned to Gizo, her will and determination to resist had been completely overborne by the accused and by the trauma of the experiences she endured.

I accept her evidence that on neither occasion before she was raped, was she physically or mentally any longer able to resist the accused. While the evidence indicates far less resistance against the rape in Gizo compared to her rape on the boat, I am satisfied that she had by then been reduced to a state of submission, not consent.

A lack of resistance brought about by

• hours of being held against her will,
• trying to escape the accused by jumping into the sea at night,
• a threat to be left to drown in the sea
• verbal and physical aggression directed towards her when there was no one else present to help and
• being raped on the deck of the boat all combined to deprive her of her ability to resist and to reduce her to a state of submission.”
  

10. We see no reason to interfere with the judge’s finding of guilt and the appeal against conviction is dismissed.

Appeal against Sentence

11. The trial judge ordered that the appellant should serve a sentence of nine years imprisonment on the first count and eight years on the second to be served consecutively but that the first four years of the sentence on count two are to be served concurrently with the sentence on count one thus giving a total term of thirteen years imprisonment. Mr Lawry challenges the total on the ground that both sentences should have been ordered to be served concurrently with each other making a total sentence of nine years.

12. The manner in which the judge calculated the individual sentences for each rape is not challenged. He followed the guidelines set out in R v Ligiau and Dori [1986] SBHC 15, and considered the matters of aggravation and mitigation before deciding the appropriate term of imprisonment.
    

13. In his reasons for sentence, he explained:

“In this case I find that the first rape was committed with circumstances of aggravation, namely that there was a significant age difference between the complainant and the prisoner and that the circumstances of her being held by the prisoner were such as to cause her additional terror and helplessness than the rape might otherwise have caused. Her terror was demonstrated by her attempt to escape by jumping into the ocean at night far from land. The prisoner’s threat to drive off and leave her to drown placing her in a terrifying and an impossible situation.

In relation to the second rape which, other than the age differential, does not have the features referred to in the preceding paragraph, was nevertheless a second rape by the prisoner. It is in my judgment aggravated by the fact that despite having sufficient time to reflect upon what he had already done to the complainant and to desist, he did not do so but rather chose to repeat the crime against her.

The complainant’s physical and mental condition had been reduced to a state of submission by the arduous ordeal to which she had been subjected, an ordeal which so traumatised her as to completely overcome her will and ability to resist the prisoner.

It is clear from the facts that the prisoner bullied her, threatened her, terrorised her and raped her. Such cowardly and criminal acts against a young woman are serious offences indeed. They represent an attitude of superiority, arrogance and servitude towards women which, when one considers the offenders who are prepared to and do commit these crimes, would if it were not so tragic, be derisory.”

14. On that basis he ordered nine years imprisonment for the first offence and eight for the second. As we have stated, the issue in the appeal against sentence is whether the two sentences should have been concurrent or consecutive. The defence submission had been that they should be concurrent because both rapes were committed on the same victim and formed part of a single transaction.
    
15. Counsel relied on the test as outlined by the High Court in Laui v DPP [1987] SBHC 4:

“The test of a single transaction is not just a matter of time but where the

offences really form part of a single attack on some other person’s right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent. ...

Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly

represented by the sentence for the principal offence.”

16. The learned judge explained the approach he had adopted in respect of that issue:

“It is extraordinary how often it is said that if the victim in each count is the same; then sentences should be concurrent. The logical extension of that

submission would be that an offender could commit as many offences as he liked and effectively only serve one sentence provided he kept offending against the same victim.

Next, it is submitted that the two rapes ‘arose from a single transaction’. This submission totally misapprehends the facts. After the first rape, the

complainant was taken on a long boat ride back to Gizo. Upon arriving, she spent a considerable time in the boat while the prisoner went looking for a room. The complainant was then taken to another location where she was raped for the second time. These occurred hours after the first rape and in no sense could it properly be described as ‘a single transaction’.

In my judgment the sentences must be consecutive.”

17. With respect to the learned judge, we cannot accept the logic or, indeed, the accuracy of his first objection. The rule as cited in Laui’s case suggests the sentences should be concurrent but it does not suggest, and could not reasonably be taken as suggesting, that they must all be the same - as appears to be inferred by the learned judge’s reference to ‘one sentence’.
    

18. In many cases, as in the present case, the fact an offence is repeated on the same

victim is a matter of considerable aggravation which can properly and understandably increase the sentence for the subsequent offence.

19. We also disagree with the judge’s factual conclusion on the single transaction test in the passage quoted above. During the trial, emphasis had been placed on the time and manner in which the girl remained in the boat in Gizo rather than attempting to take the opportunity to escape from her attacker. The defence, as in this Court, had

suggested she was willing to stay because she knew and expected another opportunity for sexual intercourse. In rejecting that submission and convicting the appellant, the judge found the victim had stayed because she had been so traumatised that, by the time she was left alone in Gizo, her will and determination to resist had been

completely overborne. The evidence satisfied him to the criminal standard that she was no longer physically or mentally able to resist and had, by the time she was left alone, been reduced to a state of submission.

20. We appreciate that the opportunity to escape was available for some hours but the

second rape was directly facilitated by the whole chain of events which had stretched from the moment the last of the other passengers had left and she and the appellant were alone in the boat. The effect of the events throughout that period was, as found by the judge, to leave her incapable of resistance. It is difficult to understand how the learned judge could not feel they sufficiently linked the two rapes into one transaction.

21. We have a similar difficulty in understanding the judge’s suggestion in his sentencing judgment that, apart from the age differential, the second rape did not share the same aggravating features he had attributed to the first. It seems all too clear that the

matters which he found made the first rape more serious were, as he had earlier found, still affecting the victim when the second rape took place and similarly aggravated it. Far from reducing the seriousness of the second rape, as the sentences ordered for each suggested had been the view of the judge, the second rape should have been regarded as substantially more serious than the first.

22. Having ordered sentences totalling seventeen years in aggregate, the judge properly moved on to consider whether the totality of the sentence was appropriate in this case. He concluded:

“Having regard to the principle of totality, such a sentence should be reduced properly to reflect the criminality involved and to avoid a crushing sentence. In relation to the sentence for count 2, the first four years of that sentence are ordered to be served concurrently with the sentence being served for count 1. The remaining 4 years of the sentence for count 2 are to be served

cumulatively upon the sentence for Count 1”

23. Counsel for the appellant does not challenge the sentence of nine years ordered for count one and we agree it is appropriate. On the other hand, we consider the second offence was serious enough to merit a higher sentence of eleven years. As part of a single transaction, that should be concurrent with the sentence for count one giving a total sentence of eleven years. Finally, we consider that would be an appropriate total sentence for the conduct in the case as a whole.
    
24. An appellate court will generally only alter a sentence if it is manifestly excessive or inadequate or if it is wrong in law. It is not appropriate for the appellate court to change it simply because, if it had been the sentencing tribunal, it may have ordered a lesser penalty. The reduction of this sentence is the result of our conclusion that the earlier sentence was based on an incorrect view of the facts of this case which resulted in an error of principle.
    

25. We therefore give leave to appeal and order:
1. Appeal against conviction is dismissed.

2. Appeal against sentence is allowed. The sentence on count 2 is quashed and replaced with an order for 11 years imprisonment concurrent with the sentence ordered for count 1 giving a total sentence of 11 years imprisonment.
   

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GoldsbroughP

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Ward JA

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Hansen JA