R v Liufirara [2023] SBCA 10; SICOA-CRAC 30 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Liufirara
Citation:
Decision date:	28 April 2022
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Bird, J)
Court File Number(s):	30 of 2022
Parties:	Rex v Ramson Liufirara
Hearing date(s):	18 April 2023
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Wilson JA
Representation:	Manu O for the Appellant Harunari B for the Respondent
Catchwords:
Words and phrases:	Sentencing. Rape. Failure to follow CA guidelines. S 21 (2) Court of Appeal Act
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, Court of Appeal Act S 21 (2)
Cases cited:	R v Billam [1986] 1 WLR 349, R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013] SBCA 19, Soni v Reginam [2013] SBCA 6, R v Liva [2017] SBCA 20
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-8

JUDGMENT OF THE COURT

1. Following a defended trial, the appellant was convicted of rape. He was sentenced to three years of imprisonment. The Crown appeals pursuant to s.21 (2) Court of Appeal Act.

General comment

2. We consider it necessary to express concern that a number of Judges in the Solomon Islands appear to ignore the guideline decisions (Footnote 2) for offending in sexual cases. In recent times there have been a number of successful Crown appeals, and it is clear to us, for reasons unknown, that there is a failure to properly consider and apply the guidelines. This is another such case.
3. A number of decisions of this Court refer to the report of the Solomon Islands Law Reform Commission published in June 2013. That report details an appalling situation regarding sexual offending and violence against women and children in the Solomon Islands. It recommended new sexual offences and an increase in penalties for others. This Court accepts the contents of that report as accurate (See also Pana at para 11).
4. The Penal Code (Amendment) (Sexual Offences) Act 2016 was a partial response. Appellate decisions since that report are also a recognition of the increased need for deterrence by way of sterner sentences. The protection of women and children requires it.
5. The number of successful Crown appeals against manifestly inadequate sentences for sexual offending shows the guidelines are not being applied by many sentencing judges.
6. We place on record that this Court may well be minded to revisit the starting points in Billam and Ligiau and Dori. These cases are nearly 40 years old and today we have a much greater understanding of the horrendous level of sexual and violent behaviour against women, children and young people. There is also a greater insight into the appalling levels of physical and psychological trauma, often affecting victims for long periods that are occasioned by this offending.
7. If such a further consideration is made by this Court, it may well entail a study of comparable sentences in adjoining jurisdictions to establish whether the Solomon Islands is out of line in its sentencing approach.

Brief facts

8. In the early morning of 22 August, the complainant was walking along Four Square Roads, Lunga area, which appears a relatively isolated and dark area. She met her boyfriend, who told her to return to her house because people were drinking in the area. On the way back she met the respondent, who held her hand, insisted on walking with her, and said he wanted to have sexual intercourse with her. When she refused, the respondent pulled her into the long grass beside the road and ordered her to remove her trousers and shirt, stating otherwise he would stab her to death. She saw the defendant pull something from his pocket that looked like a knife, and she was frightened and thought he may well stab her. She did as ordered. The defendant then proceeded to have full penile sexual intercourse with her.
9. While this was occurring, a couple walked past, and the complainant struggled and shouted. The couple went to get help and returned to the place where the complainant had been able to get up and put on her clothes. A security man brought a torch, and the couple took her back to their house, where she was advised to open a case against the defendant.
10. The defence advanced was one of consent. It was properly rejected by the Judge, who accepted the evidence of the complainant.
11. In sentencing, the Judge recorded the factual circumstances that she found, as above, and noted that the appellant was aged 20 at the time of the offending, describing him as a “youthful offender”. She considered there was a good chance of rehabilitation and that apart from threatening the complainant he did her no physical harm. She noted the previous conviction referred to related to intimidation of the couple who came to the complainant’s aid, and properly disregarded it for sentencing purposes. She also noted the period spent in pre-trial custody. She then stated:
    • 5. I have perused and taken note of the comparative cases discussed by the crown and your lawyer in their respective submissions. I have also noted the various starting points discussed in the case of R v Billam [1986] 1 WLR 349. Having noted them and taking into account the peculiar circumstances in your case, I put your starting point at 4 years imprisonment. For the aggravating features discussed above, I will increase your sentence by 6 months. For the mitigating features and especially your youthfulness and your prospect of rehabilitation, I will reduce your sentence by 18 months. Total sentence to serve is one of 3 years imprisonment. (our emphasis).

Crown submissions

12. The Crown advanced three grounds of appeal. The first that the trial Judge erred when she set a starting point of four years’ imprisonment. Ms Manu submitted it as established by Billam and R v Ligiau and Dori that in a contested rape the starting point is five years.^[1] She then referred to the decisions from this Court that have explained the guidelines more clearly, (Pana v Regina, Soni v Reginam, and R v Liva^[2]).
13. Ms Manu then referred to the non-exhaustive list of aggravating features noted in Ligiau, and said in this case there was the use of a weapon to frighten the complainant, to threaten and force her to have sexual intercourse with him; there was pre-meditation in that the accused saw the victim walking alone and approached her, and he walked with her to a spot where no-one was around and pulled her into the grass; and he had a previous conviction of intimidation.
14. The second ground is said to be the failure to take into account the aggravating features, which overlap with the last points made on ground
15. Finally, under Ground 3, it is argued that the sentence is manifestly inadequate. There was reference to the country-wide study detailed in para 2 above. It was further submitted that, compared to the nearest surrounding countries in the Pacific Islands, sentences for sexual offences in the Solomon Islands are low.
16. The respondent first submitted, in relation to ground 1, that the Judge had referred to Billam, and therefore, had given reasons for departing from the five-year starting point. It was submitted that although he was found with pliers in his pocket, the respondent never used a weapon. That is contrary to the Crown’s submission that the weapon had been used and was an aggravating feature. In relation to the second ground, it was submitted the Judge made no error in correctly identifying aggravating features. In relation to the third ground, it was said the sentence could not be said to be manifestly inadequate.

Discussion

17. We do not consider that paragraph 5, set out above, adequately addresses the steps that need to be taken by a trial Judge. As this Court said at Soni, at paragraph 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.
18. In paragraph 5, the Judge said she has noted Billam, then goes on to say “taking into account the peculiar circumstances in your case”. We explored with counsel what was meant by “peculiar circumstances.” Mr Harunari conceded there were no circumstances peculiar to either the circumstances of this case or the respondent in person. Certainly, in our view, there is nothing that would take this outside the guidelines.
19. This type of opportunistic rape is all too common within the criminal jurisdiction in the Solomon Islands, and nothing pertaining to this particular offending could be said to be “peculiar”.
20. The starting point must therefore be five years. To that must be added an uplift, because of the aggravating features here. It is clear from the verdict that the respondent did threaten the complainant by saying if she didn't remove her clothes he would stab her to death, and that he pulled something from his pocket that looked like a knife. It is true, as Mr Harunari submitted, no weapon was actually used, but the threat amounts to very serious aggravation. The evidence of the complainant leads to the finding that she felt threatened by a weapon because of what the respondent said, that he pulled something from his pocket, and she feared she would be stabbed if she did not submit. There is also aggravation from the pre-meditation as it can be implied that this man was lurking around this isolated area awaiting a victim. The fact he chose to lurk in an isolated dark area is further aggravation, but we guard against counting it twice. Overall, all of those matters would warrant an uplift of three years to eight years.
21. At paragraph 4 of the sentencing notes the Judge stated:
    • As earlier stated in this sentence, apart from threatening the complainant, you did her no physical harm.
22. We find this a concerning comment. The very act of rape is a physical violation of a complainant, and physical harm is inherent in it. As well as this Court stated in R v Bonuga at 23, and confirmed in Liva at 25:^[3]
    • 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.
23. We are quite satisfied in all cases of sexual offending of this sort, while there may not be observable physical damage, the level of psychological harm that creates ongoing issues for complainants is well-documented and can be taken judicial notice of as per Bonuga.
24. We said earlier there were no peculiar circumstances of this case. We do not consider the respondent is “a youthful offender” as described by the judge. That term generally being used to describe offenders with the lack of maturity exhibited by teenagers. This was a young single man, but he was not a” youthful offender.” We note the Judge did make allowances for this youthfulness and the prospect of rehabilitation. We have not seen any probation report so have no real idea of what the opportunities for rehabilitation are.
25. The judge gives no reason for departing from the 5-year starting point. There are in fact no reasons in this case that would justify such departure. In addition, in this case there are the serious aggravating factors set out above. They warrant a 3-year uplift to. There are no “peculiar circumstances” in this case. The only mitigating factors are that he is a young man with prospects of rehabilitation. As Ward CJ said in Ligiau and Dori:
    • “In sexual offending as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”

For such mitigation no more than 6 months can be allowed.

26. The sentence should be increased from the starting point of 5 years to 8 years because of the aggravating features. There should be six months’ allowance for the minimal mitigating features leaving the final sentence of seven and a half years imprisonment.
27. The appeal is allowed. The respondent is sentenced to seven and a half years’ imprisonment for rape.

Goldsbrough P
Hansen JA
Wilson JA

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^[1] R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985; R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986).

^[2] Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013); Soni v Reginam [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013); R v Liva [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017).

^[3] R v Bonuga [2014] SBCA 22 SICOA, CRAC 12 of 2014, 17 October 2014 at 23; R v Liva [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017).