Regina v Liva [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua DCJ)
COURT FILE NUMBER:	Criminal Appeal Case No.17 of 2017 (On Appeal from High Court Criminal Case No. 377 of 2016)
DATE OF HEARING:	5 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	REGINA –V- DAVIDSON LIVA
ADVOCATES: APPELLANT: RESPONDENT:	Mr. Kelesi Mr. B. Ifuto’o
KEY WORDS:
EXTEMPORE/RESERVED:
ALLOWED/DISMISSED
PAGES	1-6

JUDGMENT OF THE COURT

1. The respondent, Liva, pleaded guilty to one charge of common assault and two counts of rape. On 18 May 2017, Mwanesalua DCJ sentenced him to six months’ imprisonment for the common assault and to three years’ imprisonment on each of the rapes. He ordered the sentences to be served consecutively, making an effective total sentence of six years and six months.
   

The facts

2. The victim is the daughter of the accused. On the morning of 25 December 2015 he became extremely angry with her and beat her with a PVC pipe, which was about a metre long. This caused bruises on her left buttock, left forearm and the back of her left knee. It is clear he was very aggressive, and he pulled her shorts and tore the strap of her bra. After assaulting her, he called her into their house, locked the door and told her to remove her clothes. She was told to lie down, and the respondent then raped her. At that time, the victim was aged 15.
   
3. The second charge of rape related to an incident that occurred much earlier between 31 December 2013 and 1 February 2014. The rape occurred on the night before she was to leave for school at the Jones Adventist College. Around midnight, when she was asleep, the respondent went to her bed, took her clothes off and raped her. She awoke from the pain and realised that it was her father, the respondent.
   

The sentence

4. The first page of the sentencing notes simply records the agreed facts, as we have done above. The Judge then concluded, on the second page:
   

The rape in this case is very serious. They were committed by the father of the victim at the family home. The accused pleaded guilty to offences, which saved the victim from the trauma of giving evidence.

The accused entered guilty pleas to his offences in 2016 when he appeared before the Magistrates’ Court. He is a first offender. He has other children in his family. His sentences are to be served consecutively a total of six years and six months imprisonment.

The appeal

5. This appeal was brought by the DPP pursuant to s 21(1)(b) Court of Appeal Act. The following three grounds appear in the notice of appeal:
   
   1. That the learned sentencing judge erred when he did not thoroughly consider the aggravating features in his sentencing remarks,
      
   2. That the learned sentencing Judge erred when he did not specify the starting point of sentences to be applied in this case, and
      
   3. That the learned Judge erred when he did not apply the relevant laws to the facts.
      

The Crown’s submissions

6. Mr Kelesi first referred to R v Tebaia at [11] to stress the importance of both a prisoner and an appellate Court understanding the sentencing decision and the reasons by which the Judge has reached it.^[1]
   
7. Mr Kelesi next referred to the well-known case of R v Ligiau and Dori.^[2] That case is so well known it does not need to be rehearsed further here. Mr Kelesi said based on that decision, the starting point in this matter should be eight years for each offence of rape.
   
8. He further referred to Maelanga v R,^[3] to the effect that where the application of an arithmetic total of consecutive sentence results in an unduly harsh effective sentence, it must be tempered by reducing one or more of the accumulated sentences so the total term is not excessive. i.e. the totality principle.
   
9. Essentially the DPP’s submission amounted to the sentence being manifestly inadequate.
   

Respondent’s submission

10. Mr Ifuto’o submitted that the combined starting point for these two rapes is eight years. He said when one made an allowance for the time spent in custody from an eight-year sentence, it could not be said that the sentence imposed was manifestly inadequate or out of range. He also submitted that Mr Kelesi, in his oral submissions to us, conceded that the sentence of six years and six months was within range.
    
11. Before turning to our decision, we record that none of the Judges on the Panel heard the remarks alleged to have been made by Mr Kelesi, and he was adamant in response that he made no such concession. We are satisfied no such concession was made, and we set that matter aside.
    

Decision

12. In relation to the sentencing process, this Court can only reiterate what it has said on a number of occasions in sentencing appeals. We have repeated^[4] it in this session. It is regrettable that not all Judges apply what this Court has laid down.
    
13. The first step is to assess the appropriate starting point for the offending. It is then necessary to take into account aggravating and mitigating features. It is then necessary to consider the overall sentence on a totality basis to ensure the final outcome is not unduly harsh.
    
14. We agree with Mr Kelesi’s submission that in this case the appropriate starting point for each of the rapes would be eight years. As Ward CJ put it at in Ligiau and Dori:^[5]

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 a person and holds her captive, the starting point should be eight years. [our emphasis]

15. We note that the DPP did not refer the learned sentencing Judge to more recent decisions of this Court in Pana and Bonuga.^[6]
    
16. The first of these decisions relates to sentencing for the offence of defilement and the second relates to sentences if offences of rape. In Pana at 27] we noted:
    

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.

17. In Bonuga we added, at [16]:
    

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.

18. In cases involving the rape of a child we consider it to be appropriate in considering the appropriate starting point to also consider sentencing tariff cases for defilement such as Pana.
    
19. Further, both of those decisions refer to the Solomon Islands Law Reform Commission Report. In Soni v R,^[7] this Court disagreed with the sentencing Judge’s approach in increasing the established starting point. One reason was that we did not accept it appropriate to support such increase on the basis of prevalence of such offending where there was an absence of evidence to support such a view. However, in Pana, at [10], this Court stated:
    

The learned judge was referred to a number of previous sentences for defilement and rape. In one of those cases, [Soni], 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.

20. In Bonuga, this Court stated at [18] when referring to Pana :

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.

21. That report confirms the prevalence of sexual violence against women and children within the Solomon Islands. We repeat it is appropriate for a sentencing regime to note and take into account that prevalence.

22. We also note that in Ligiau and Dori at page 3, Ward CJ cited eight factors taken from Billam^[8] that could be treated as aggravation. We do not take that as an exhaustive list, because matters of aggravation must always be open.

23. We turn to the individual rapes. We are satisfied separate starting points need to be set as they were discrete offences some considerable time apart. The aggravating features for the rape that occurred in early 2014 were firstly, the young age of the victim, she then being only 13. Secondly, there was a very significant breach of trust, as there can be no greater trust than that between a child and parent. Thirdly, there was the significant age disparity between the respondent and his daughter. Finally, there was the fact that the matter occurred within the sanctity of the child’s own home.
    
24. In relation to the second rape, it was preceded by extreme violence where the respondent beat his daughter with a metre-long piece of PVC pipe. He inflicted wounds upon her and also aggressively tore her clothes. The breach of trust and the sanctity of her own home remain aggravating features, and she was still a child aged only 15.
    

25. At [23] of Bonuga this Court said:

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.

We confirm that statement and take that factor into account.

26. We are conscious that this man pleaded guilty to a charge of assault in relation to the beating, but we do not consider it appropriate to isolate that violent transaction from the rape that immediately followed.
    
27. In relation to the assault itself, it was a violent offence, well beyond what would be acceptable as parental chastisement.
    
28. As to mitigation, this man is a first offender and we accept he is entitled to a very substantial discount for pleading guilty at the earliest possible stage. This spared the victim from having to give evidence and confronting her father in the most awful of circumstances.
    

29. The sentencing Judge in this matter did not establish starting points for the offences upon which he had to pronounce sentence. Nor was there any proper analysis of aggravating and mitigating factors, or a consideration of the totality principle. Finally, as this Court noted in Tii v R,^[9] the Judge must approach the pre-sentence custody period on a principled basis, and, as we stated there, we consider if no allowance is to be made, or only a partial allowance, the reasons need to be spelled out.

30. For the first offence of rape, taking into account the aggravating factors set out above, we consider an appropriate starting point to be one of 11 years. We reach that by starting at 8 years and factoring in the various serious aggravating features set out above. We reach the same starting point for the second offence of rape, for, while the girl was older, there was serious violence involved as well and we do not consider taking it as one transaction is double counting. Again we start with 8 years and factor in the aggravating matters.

31. On the assault charge, we consider an appropriate starting point for a beating of this sort, of a child, to be one year. That gives an overall starting point after considering aggravating factors to be 23 years.
    

32. Turning to mitigation and allowing a generous discount for his early guilty plea and a factor for his previous good behaviour, we would allow a discount of a little over one third and an effective sentence of 14 years. Standing back and considering that on a totality basis, we consider it appropriate for this very serious sexual violence against the respondent’s own daughter. However, we do note that this is a Crown appeal, and as such we would make an allowance of a further two years, giving an effective sentence of 12 years.

33. Accordingly, we quash the sentences in the lower Court and impose sentences of 12 years on each of the rape charges, and one year for the assault. They are to be served concurrently. In reaching the effective sentence of twelve years we treated the rapes as discrete offences and set separate starting points for each. We then applied the totality principle to reach the overall effective sentence. For that reason we have ordered the sentences to be served concurrently.

34. Applying Tii we are satisfied the sentence should run from 27 December 2015 when the appellant was first taken into custody.

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Goldsbrough P

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Ward JA

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Hansen JA

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^[1] R v Tebaia [2017] SBCA 7; SICOA-CRAC 18 of 2016 (5 May 2017).
^[2] R v Ligiau and Dori [1985/1986] SILR 214; (1986) SBHC 15.
^[3] Maelanga v R [2007] SBCA 8; CA-CRAC 2 of 2007 (16 October 2007).
^[4] Selo v R SIOCA CRAC 37 of 2016. Para 44. (13 October 2017).
^[5] Above, n 2, p 3, referring to R v Billam (1986) 1 WLR 349.

^[6] R v Bonuga [2014] SBCA 22 SICOA – CRAC 12 of 2014, 17 October 2014; Pana v R [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[7] Soni v R (2013) SBCA 6.
^[8] R v Billam (1986) 1 WLR 349 per Lane LJ.
^[9] Tii v R [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017) Para 28.