R v Sinatau [2023] SBCA 38; SICOA-CRAC 9027 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Sinatau
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Criminal
Court File Number(s):	9027 of 2023
Parties:	Rex v Tony Sinatau
Hearing date(s):	6 October 2023
Place of delivery:
Judge(s):	Hansen JA, President Gavara-Nanu JA Lawry JA
Representation:	P Tabepuda for Crown A Bosa for Respondent
Catchwords:	Rape Starting point for sentencing
Words and phrases:
Legislation cited:	Penal Code (amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (1) (a) and (b), Penal Code S 136A, S 136A (2), S 136A (2), (b) and (d)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed. Sentence quashed. On Count 1, 10 years imprisonment. On count 2, 7 years’ imprisonment to be served concurrently
Pages:	1-7

JUDGMENT OF THE COURT

1. On his plea of guilty to two charges of sexual intercourse with a child under 15 years under ss 139(1)(a) and (b) of the Penal Code Cap 26 (Amendment) (Sexual Offences) Act 2016, the respondent was sentenced to six years on each count, to be served concurrently. The offences involved two different 10 year old children. The maximum sentence for these offences is the same as that for rape, life imprisonment. The DPP appeals that sentence as being manifestly inadequate.
2. While the maximum sentence is the same, generally rape is viewed as the more serious offence. We are also conscience that for the counts charged the prosecution do not have to negative consent. Having said that the victims are 10 years old. We are very aware of s 136A of the Penal Code, as amended. It states consent means a free and voluntary agreement. On the Summary of Facts that was not present here for either complainant. Furthermore s 136A (2) deals with the meaning of consent. The subsection sets a number of circumstances that do not amount to consent. More than one of those subsections apply where children are the victims. In this case s 136A (2) (a), (b) and (d) at the very least, would appear to have application. This is not the only case in this session where what is clearly a rape has been charged as the lesser offence. We do not understand why this has occurred. We trust the DPP will urgently review his charging protocols.

Facts

3. The following facts were agreed. On the morning of 26 July 2022 the two complainants, both aged 10 years at the time of the offending, were in the vicinity of their mother’s garden at Aupare Riverside. They paddled a canoe up the river and went ashore to collect a bunch of bananas, as they had been instructed.
4. The respondent appeared and assisted them to carry the banana bunch to the canoe. As he was ready to leave, it is said the complainants mocked him and called him a name that he found to be insulting. As a consequence, he pulled the canoe to the shore, held a stick in his hand and forced both of them to follow him into the bush. The complainants, being very afraid, did what they were told. The complainants sat on a log and they were told by the respondent to widen their legs. They did as instructed, and the respondent licked the first complainant’s vagina several times, and used his right-hand finger to play with and touch her vagina. He moved on to the second complainant and did the same to her. That complainant said she did not like it, but he continued nonetheless.
5. The respondent then ordered the first complainant to move further into the bush and laid her down on dry leaves. He then had full penile intercourse with her, which she found to be painful, but she kept quiet because he threatened her. After that the respondent told both complainants to lie about what occurred, and to tell one of the complainant’s mothers that they were playing with prawns in the water. That complainant cried, went to her mother and reported the incident. This led to his arrest.

Sentencing

6. The Judge noted the maximum penalty for both offences was life imprisonment. Without referring to authority, he took as a starting point five years’ imprisonment. He noted the aggravating features were the disparity of age, that the acts were in the presence of each of the complainants, and there was full sexual intercourse in the bush with one of the complainants.
7. He noted as a mitigating feature the early plea of guilty and a clear record. The respondent submitted to the judge that this was retaliation for an abusive remark which amounted to mitigation. The judge noted this was far from mitigation rather it was just a man taking the law into his own hands.
8. He noted that sexual abuse of children was far too common, and that any sentence imposed must be deterrent to the offender and generally to the public. After considering the mitigating and aggravating factors, he was satisfied that a deterrent sentence was six years on each charge, to be served concurrently. That is, an effective sentence of six years’ imprisonment.

Submissions

9. The appellant referred to a number of authorities of this Court that express concern at the lenient sentencing for sexual offending in the Solomon Islands. They also pointed to the fact that those decisions set out, and accepted, how prevalent this offending is within the Solomon Islands. We will return some of those decisions in due course.
10. For the respondent, it was submitted the starting point for rape is five years in accord with R v Ligiau and Dori [1986] SBHC 15. They said, given the early guilty plea and the fact he was a first offender, the final sentence imposed of six years was not manifestly inadequate.

Discussion

11. We have previously stated at the last session that counsel should be in a position to address us on whether previous starting points for sexual offending were appropriate in the Solomon Islands. We have had only had a small amount of assistance in that regard.
12. However, in the light of our decision in this session, Bade v R SICOA-CRAC, 17 of 2023, 13 October 2023, we confirm R v Ligiau and Dori and Soni v R are overruled. The starting point for a contested rape is eight years’ imprisonment; and for an uncontested rape, six years’ imprisonment. It is unnecessary to set out the matters covered in Bade v R again, but all the appeals in this session relating to sentencing in sexual matters should be read in tandem with our decision in Bade v R.
13. Bade involved an adult complainant. This Court has previously said Pana v R CRAC 13 of 2013 8 November 2013 we stated at 15:
    • “Although the age of a rape victim is always a factor, we consider that, when a victim is below the age of consent, that should always bring the starting point to 8 Years.”
14. It is time to set new starting points for offending against children, as we have done in Bade v R for in cases involving adult complaints. We reaffirm the statement above from Pana and lay down that the starting point for offences under s136F and 139 of the Penal Code, as amended in 2016, involving children under the age of consent in a non-contested matter is 8 years.
1. We also stress our further statement at 17 of Pana :
   • “The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point. And so the actual age may be considered as an additional factor. Its aggravating effect on sentence will usually be greater the younger the child.”
15. Bade v R and other decisions of this Court accept the prevalence of this type of offending. This is also confirmed from our own experience of the number of sentences that come before this Court for sexual offending, particularly against young women and children. It is time to set new starting points, as we have done in Bade v R and this case.
16. Turning to this case, it is hard to ascertain from the sentencing notes exactly what uplift the Judge had in mind for aggravating features, and what allowance he made for the mitigating features.
17. We are also satisfied it was wrong to run these two offences together and treat them as one for sentencing purposes. There were two distinct offences against very young children. They clearly were carried out as retribution for a perceived insult. They were carried out for that most appalling of motives. We do accept that the rape of the first complainant is the worst of the two because it ultimately involved full penile intercourse. But prior to that both victims suffered from cunnilingus and digital penetration.
18. In relation to both offences, the aggravating features are the disparity of age, which is noted as 30 years; it was for the infliction of retribution on the two complainants; that the appellant was clearly known to the complainants, and he knew the mother of one, so there was a clear breach of a trust that young people in a village setting are entitled to expect; there was the use of a stick as a weapon; and, finally, the victims were young children.
19. Turning first to Count 1. The starting point is 8 years. The combination of the very serious aggravating features would warrant an uplift of four years in relation to the offence against the first complainant. That gives a figure of 12 years’ imprisonment.
20. Count 2 also has a starting point of 8 Years. The aggravating features are the same but they do not include full penile intercourse. An uplift of 3 years would be appropriate giving a sentence of 11 years.
21. In relation to both counts the mitigating features are a guilty plea and a clear record. We would not allow a full 30% mitigation for the guilty plea and the clear record. Rather we would allow a still generous 3 years. So if we were sentencing for these two counts on a standalone basis we would impose a sentence of 9 years on Count 1, on a standalone basis, and 7 years on Count 2, again on a standalone basis...
22. However, we are dealing with both counts together and must consider the totality principle. Standing back and looking at this sentencing in the round we are quite satisfied that this offending against children would warrant an overall sentence of 13 years before considering mitigating factors. We have set these out above.
23. Applying 3 years for mitigation that takes us to a ten year sentence on a totality basis. We consider the appropriate course on a totality basis is to impose this sentence on Count 1. For Count 2 we would impose a sentence of 7 years imprisonment to be served concurrently.
24. Leave to Appeal out of time was sought. It is appropriate to grant leave.
25. The Appeal is allowed. The sentence of six years’ imprisonment is quashed and a sentence of ten years imprisonment is imposed for Count 1. In relation to count 2, we impose a sentence of seven years’ imprisonment to be served concurrently. These sentences to run from when the respondent was first remanded in custody.

Hansen JA (President)
Gavara-Nanu (JA)
Lawry (JA)