Regina v Tebaia [2017] SBCA 7; SICOA-CRAC 18 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (EMMANUEL KOUHOTA PJ)
COURT FILE NUMBER	CRIMINAL APPEAL CASE NO. 18 OF 2016 (ON APPEAL FROM HIGH COURT CRIMINAL CASE NO. 169 OF 2014)
DATE OF HEARING	25th APRIL 2017
DATE OF JUDGEMENT	5th MAY 2017
THE COURT	GOLDSBROUGH P WARD JA WILSON JA
PARTIES:	REGINA -V- MOSES MOTE TEBAIA
ADVOCATES: APPELLANT: RESPONDENT:	MR R TALASASA (WITH MS O RATU) MR H LAWRY
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-8

JUDGMENT OF THE COURT

1. The respondent was convicted of rape, indecent assault and assault causing actual bodily harm following a trial. He was sentenced for the rape to imprisonment for 5 years. The Director of Public Prosecutions appeals against that sentence on two grounds:
   
1. That the learned Judge erred in his sentencing in that he failed to apply the principles stated in Ligiau and Dori regarding starting points; and
2. That the sentence was manifestly inadequate taking into account the aggravating features and that the aggravating features outweigh any mitigating features.
   

Facts

2. The victim was the niece of the respondent. In the small hours of the morning of 25 December, 2013 the respondent saw her in the street. She had been drinking at White River since 6.00 pm the previous evening and she and her friend had gone to the White River 02 bus stop to look for more alcohol. She was drunk and it was there and in that condition that the respondent saw her. He told her he was ashamed of her being drunk in public and hit her once on the face.
   
3. The respondent left, only to return shortly afterwards with a knife. He took hold of her and took her to his house where he led her to his bedroom. Once there, the victim told the court, they had sexual intercourse. She acted as if she was willing to have sexual intercourse because she was frightened by the knife which he had placed by the door and which was sufficient, at that stage, to intimidate her and prevent her from attempting to escape. Once in the bedroom, there was no actual physical violence apart from the rape itself.
   
4. The respondent told the court that the sexual intercourse was consensual and, indeed, that the girl had initiated it. The learned trial judge did not accept his evidence and found that the girl’s lack of resistance was because of the intimidation and her fear he might use the knife.
   

Sentence

5. When passing sentence, the judge gave a brief account of the facts of the case and continued:
   

“Rape is a serious offence. This is reflected in the penalty prescribed for this offence by Parliament which is life imprisonment.

You must have known that is wrong in law and in custom to do what you did. The scar of your action will remain with complainant for a long time, if not for the rest of her life. I take into account the circumstances of your case and the sentences imposed by this Court for similar cases in the past as pointed out by your counsel. There is no record of any previous conviction hence I treat you as a first offender. Having considered all the factors, I sentence you as follows:

1. Rape - 5 years imprisonment.

2. Assault causing actual bodily harm - 6 months imprisonment.

3. Indecent assault - 1 year imprisonment.

4. Total of 6 years and 6 months.

Order that sentences be served concurrently and time spent in custody be calculated as part of the sentence.”

6. Counsel agreed with the Court that the purpose of the fourth numbered paragraph in the sentencing judgment set out in paragraph 5 (above) was unclear. The reference to a ‘total’ of six years and six months appears to suggest that the sentences in the preceding three paragraphs were to be consecutive - a suggestion negatived by the subsequent order that sentences be served concurrently.
   
7. The possible inconsistency resulted in different interpretations by counsel; Mr Talasasa reading it as meaning that the sentences were concurrent with each other thus leaving a total and, he submitted, manifestly inadequate sentence of five years and Mr Lawry advising us that the prison authorities were treating it as a total sentence of six and a half years - far too high, he submitted, for the facts of this case. When the Court obtained the warrant of commitment in the trial court file, it was apparent that the conclusion reached by the prison authorities resulted from the concluding passage in the warrant of commitment:
   

“ORDERS OF THE COURT”

1. Rape - 5 years imprisonment.

2. Assault Causing Bodily Harm - 6 months imprisonment.

3. Indecent Assault - 1 year imprisonment.

4. That the accused be imprisoned for a total of 6 years and 6 months.(our emphasis)

5. Order that the sentences be served concurrently and time spent in custody be calculated as part of the sentence.

THESE ARE THEREFORE TO COMMAND YOU the said Police Officers to take the said MOSES MOTE TEBAIA and deliver him to the Officer in charge at the Correctional Services at Rove, who is hereby directed to imprison him for the total period of 6 years and 6 months.”

8. The ambiguity still remains in the document as a whole but the words which have been added to point 4 together with the final direction to the Officer in Charge at Rove clearly places the emphasis on the longer sentence and explains why the prison authorities saw their duty was to imprison him for six and a half years. It is a matter which had to be resolved and our enquiry of the trial judge confirmed his order was that the sentences should be served concurrently with each other giving a total sentence of five years imprisonment. We return to the error on the warrant of commitment below.
   

Grounds of Appeal

9. The principles to which the first ground of appeal refers were those first explained in the English case of R v Billam (1986) 1 WLR 349 and adopted in Solomon Islands by the High Court in the case of R v Ligiau and Dori (1986) SBHC 15. They have since been confirmed by this Court in a number of cases including, recently, Soni v R (2013) SBCA 6.
   
10. The starting points in cases of rape were taken as being 5 years for a case of an adult with no further mitigating or aggravating features; 8 years where the offence was aggravated by the involvement of more than one person, or where it involves illegal entry into the victim’s dwelling house, where the perpetrator is in a position of responsibility to the victim or who holds her captive or abducts her. (The further starting points of 15 years or life imprisonment do not arise in this appeal.)
    
11. In the present case, the learned judge was directed to both aggravating and mitigating matters by counsel and, no doubt, took them into consideration as he stated. However the court’s attitude to them and their effect on his final decision are, as with all matters requiring exercise of the judge’s discretion, matters which should be clearly stated. In a criminal case, the person upon whom the sentence is imposed must understand the court’s decision and the reasons the judge has reached it. Should there be an appeal, the appellate court must also know whether those issues were properly applied or disregarded.
    
12. The judge also failed to identify the starting point he considered appropriate. All this Court can conclude is that the judge must have decided on five years and that, in the final analysis, any mitigating or aggravating factors must have had an equal and opposite effect so the final result was to treat it as a case at the bottom of the scale with no need, in the final count, to move from the basic five year starting point. We cannot accept that the facts of this case justified such a conclusion.
    
13. The aggravating features of the case the judge had before him were that the victim was younger than the appellant, he was her uncle and was aware of the power such a relationship had on her and his right to admonish and strike her in public for her behaviour. Having done so, he left but soon returned with a knife and forced her to accompany him home. The placing of the knife by the door of the room was sufficient, as the judge found, to intimidate her and prevent her from trying to escape enabling him to rape her without needing to resort to further direct physical violence.
    
14. In mitigation, the appellant did not, in fact, use any further force. He had no previous convictions, was unmarried and worked as a security guard. By that employment he was able to help feed and support his family. He pleaded not guilty and thus could not benefit from the, sometimes considerable, assistance of a guilty plea.
    
15. The first ground of appeal suggests the learned judge failed to apply the principles in Ligiau and Dori and we note that, surprisingly perhaps, there was no reference to it in the prosecution’s written submission on sentence to the trial court. However, counsel for the appellant did make reference to the starting points but the sentencing judgment gives no indication whether the court had considered, applied or rejected them. We have no doubt the judge would have had them well in mind but, in our opinion, failed properly to evaluate the relative worth of the mitigating and aggravating features.
    
16. This was clearly a case involving elements which justified a starting point of eight years. The actions of the appellant were a clear breach of trust, a knife was involved and the victim was effectively abducted and held a prisoner - all circumstances which contribute to a higher starting point.
    
17. Having determined the appropriate starting point for the offence itself, the sentencing court must be careful not to use the same elements of the offence by which the starting point was fixed again when identifying aggravating features. In general terms the starting point is assessed on the seriousness of such additional features of the offence itself in the particular case. The aggravating features will be based on the manner in which the accused actually applied them in the case being sentenced. Taking a knife with you when committing a robbery, for example, will make the robbery more serious and deserving of a higher starting point but the fact the accused actually uses it and how he uses it will be features which may aggravate the sentence beyond that starting point.
    
18. In the present case, the features which aggravated the offence beyond the starting point were that he used his position of trust as her uncle apparently to justify chastising her for her behaviour in public and to explain his forcing her to accompany him to the house. The assessment of the starting point took cognizance of the fact he had a knife with him but the fact that he used the knife in the house by placing it in a position where it intimidated his victim sufficiently to allow him effectively to imprison her in order to facilitate the rape was a feature aggravating the offence above the starting point.
    
19. Against those, as matters of mitigation, were the facts that he did not use the knife in any direct manner and that, having obtained her acquiescence, he used no additional direct violence. Added to those matters of mitigation in the offence itself were his lack of convictions and his personal good conduct and family responsibility prior to this offence.
    
20. The second ground of appeal suggests that the judge failed to take sufficient notice of the aggravating features and should, in fact, have found they outweighed the mitigation. However, once the starting point is placed at eight years, we do not consider the additional details of the way he acted when committing the offence greatly aggravate the matters which have already required a starting point of eight years. On the other hand, the effect of the mitigating features is of more value and, in our opinion, assists him in the overall adjustment as a result thus allowing a nett reduction from the eight years starting point. Taking all those matters into account, we feel the appropriate sentence for this rape would be six years.
    
21. Section 20A(1)(a) of the Court of Appeal Act allows the Director of Public Prosecutions to appeal against a sentence imposed by the High Court where, in his opinion, it is manifestly inadequate. This Court has warned itself many times of the danger of increasing or reducing a sentence solely on the ground that the appellate court would, had the sentence been passed by it, have passed a lesser or greater sentence. We consider the appropriate sentence is one of six years imprisonment which, whilst borderline, does not satisfy the test of manifest inadequacy. We therefore dismiss the appeal by the Director and confirm the sentence ordered in the lower court.
    

The errors in the warrant

22. As we have stated, the prison authorities and the appellant had taken the sentence to be six and a half years instead of five years despite the clear use of the word ‘concurrent’. The addition of extra words not used by the judge led to the remainder of the warrant referring to the longer sentence. All judges have to sign numerous warrants and orders. They are the formal pronouncement of the court’s intention. It should not need this Court to remind them of the importance of accuracy in any such document. That is always the responsibility of the judge who signs it and this case unfortunately demonstrates all too clearly how serious the consequences of a mistake can be. Happily in the present case, the appeal resulted in the mistake being noticed and we will be able to remedy it by issuing a corrected order.
    
23. However, our enquiry also revealed another error which would otherwise have passed unnoticed. Throughout the judgment and continued into the warrant of commitment, the third offence was described as assault causing actual bodily harm. In fact the offence with which the appellant was charged and committed for trial was common assault. It is not clear how or when that error arose but, once made, it was carried through the whole process. The result is that the appellant has been convicted of, and sentenced for, an offence with which he was never charged. It has not been raised by the parties but, having become aware of it, we feel it must be corrected. We therefore quash the conviction and sentence for the offence of assault causing actual bodily harm. This does not alter the total effective sentence.
    
24. We therefore order:
    

1. The appeal against sentence is dismissed.

2. The conviction of assault causing actual bodily harm is quashed.

3. The total sentence is confirmed as five years imprisonment for rape and twelve months imprisonment for indecent assault, both sentences to be served concurrently making a total sentence of five years imprisonment. The time spent in custody to be calculated as part of the sentence.

4. The warrant of commitment to be corrected accordingly and served on the prison authorities

THE COURT

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Goldsbrough P

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Ward JA

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Wilson JA