Bade v R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Bade v R
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Criminal
Court File Number(s):	9017 of 2023
Parties:	Thomas Bade v Rex
Hearing date(s):	4 October 2023
Place of delivery:
Judge(s):	Hansen JA, President Palmer JA Gavara-Nanu JA
Representation:
Catchwords:	Sentencing for Rape and Domestic Violence s 58(1) Family Protection Act s 136F(1)(a) and (b) Penal Code (Amendment)(Sexual Offences)Act 2018 R v Ligiau and Dori (1986) SBHC 15 and Soni v R [2013] SBCA 6 Overruled. New tariff set out for rape sentencing
Words and phrases:
Legislation cited:	Family protection Act S 58 (1) ,S 4 (1) (a), S 4 Court of Appeal S 21 [cap 6], S 23 Penal Code [cap 26] (amendment) (Sexual Offences) Act 2016
Cases cited:	R v Billam [1986] 1 WLR 349, Soni v R [2013] SBCA 6, Pana v R [2013] SBCA 19, R v Bonunga [2014] SBCA 22, Bosamete v R [2013] SBCA 16, R v Liva [2017] SBCA 20,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-14

JUDGMENT OF THE COURT

1. The appellant pleaded guilty to three counts of domestic violence, physical abuse contrary to s 58(1) as read with s4(1)(a) of the Family Protection Act and one charge of rape as contained in the amended indictment dated 29 March 2022. He was sentenced to an effective sentence of eight years.
2. This Court granted leave to appeal on 4 July 2023.

Facts

3. The appellant and the complainant have been married since 2012. It was clearly an abusive relationship. Count 1 relates to an incident between 24 December 2017 and 31 January 2018, when they went to the Lunga River for a bath. The appellant led his wife there and assaulted her multiple times, hitting her on the head and kicking her with his foot. It was a relatively remote area, and there was no one nearby who could assist her or come to her aid.
4. Counts 2 and 3 also relate to events that occurred at the Lunga River, this time on 20 January 2018. The appellant tied the victim’s legs and hands together and viciously assaulted her. He hit and assaulted her on the head, chest, and kicked her buttocks several times. He then violently digitally penetrated her vagina, causing bleeding. He used a stone to hit her on the elbows and knees. This gave rise to the second count of domestic violence and the rape.
5. Count 4 occurred on 31 July 2018 around 4.30, when the appellant returned to their home at Lunga intoxicated. The complainant questioned this, and his reply was that there were other people who forced him to drink. The complainant swore at the appellant and threw stones at him. The stones missed him, except for the fourth stone. As a consequence he chased her with a spade, held the victim down when she fell to the ground, kicked and assaulted her and hit her on the face with his finger ring, and caused her face to bleed.

The sentence

6. It almost appears as if the Judge has proceeded to sentence on the basis that the appellant had pleaded guilty to four counts of domestic violence, although he did refer peripherally to the rape.
7. Although the judge headed a section of his sentencing notes with “Starting point” he did not specifically set out a starting point. Rather he described the offending as the very worst sort of domestic violence and mentioned the maximum sentence of 3 years. He generically referred to aggravating and mitigating factors without specifically detailing all of them. Nor did he identify the uplift for aggravating features or the allowance for the mitigating ones. This is disappointing as this court has stated, ad nausem, the correct approach to sentencing.
8. He referred to the agreed facts and discussed the provisions of s 4 and s 58(1) of the Family Protection Act. In dealing with the starting point, he accepted the facts disclosed that the case was in the range of the worst cases of domestic violence and that any sentence should deter the appellant and others who may think to involve themselves in acts of domestic violence. He set out the maximum statutory penalty, but reminded himself that in sentencing there is always the discretion to consider what is an appropriate sentence, and that discretion vests in the Court. He mentioned aggravating and mitigating factors and then, somewhat surprisingly, stated:
   • The counsel for the Crown in submitting for the sentence also refers to the sexual offences sentences imposed by the Courts under the Penal Code (Amendment) Sexual Offences Act 2016. However, the sexual offences sentences imposed by the courts on those cases may not be appropriate as this case involves the physical abuse or violence.
9. It seems to us the statement could be read as minimizing rape. We are sure that this was unintended, but it reads as if rape in the context of domestic violence has some level of reduced culpability. We would disabuse anyone of this notion. Sexual offending within a domestic violence context is just as serious as any other sexual offending and the sentencing response must be the same.
10. The Judge therefore considered the appropriate sentence was one year’s imprisonment on each counts 1 and 4, and three years’ imprisonment on each of counts 2 and 3, all to be served, consecutively, giving the total sentence of eight years.

The submissions

11. Three grounds of appeal were put forward, and submissions were made in support of them. The first ground is that the Judge erred in fact and law when he sentenced the appellant consecutively for counts 2 and 3, when the offences charged arose out of a single transaction and were committed against the same complainant. The second ground was that the Judge failed to take into account the totality principle in sentencing. And the third ground was that the eight years imposed on the appellant was manifestly excessive.
12. In Supplementary Submissions it was submitted that this Court had no power to increase a sentence unless the Crown cross appealed under s 21 of the Court of Appeal Act Cap 6. This is a nonsensical submission. This Court’s powers on appeal are clearly set out in s 23 of the Act that we will return to in due course.
13. The Crown referred to the legal principles surrounding consecutive and concurrent sentences. The Crown conceded that the sentences imposed on counts 2 and 3 should be concurrent with each other, but the two sentences for Counts 1 and 4 should be consecutive to that.
14. However, the Crown did go on to submit that on a totality basis the sentence of 8 years imposed was appropriate and not manifestly excessive. Ms Suifa’asia said the sentence could well have been higher.

Discussion

15. Before turning to the sentence appealed against, it is necessary to address some general matters. Those matters mean we will have to reconsider the whole sentencing process for rape and to a significant extent that will render some matters in the Notice of Appeal irrelevant.
16. Over the years, this Court has read countless sentencing submissions. Since 2013, in dealing with cases of sexual offending (including rape and defilement), we have pointed out that sentences regularly imposed in the High Court are too lenient. We have some sympathy for the Judges, because a reading of the sentencing submissions shows counsel seldom refers the sentencing judge to the leading appellate authority, and rather list High Court cases that are said to be somehow similar. It must be said that when there is appellate authority for sentencing it is binding on the High Court, and references to contrary High Court cases are of no relevance and does not assist the Judges. It is the obligation of both prosecution and defence in sentencing matters to put the correct appellate decisions squarely before the sentencing Judge.
17. This is graphically illustrated in this case by the sentencing submissions on behalf of the appellant. There is reference there to the High Court sentence of 6 years and 6 months for 2 counts of rape and one of common assault in R Liva. The submission then refers to this court’s decision in the same case increasing the sentence to 12 years imprisonment on each of the rape charges to be served concurrently. To be blunt the only case that needed citing was the decision of this court which is binding on the High Court.
18. s23 of the Court of Appeal Act states :

A. Determination of appeal in ordinary cases

23. - (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.
(2) Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial.
(3) On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just. (our emphasis).

19. It is clear, whoever brings the appeal, this Court retains the jurisdiction to both decrease or increase sentences on a successful appeal.
20. As noted in our comments above, this sentencing process seems to have gone seriously awry in that there appeared to be a misconception that the sentencing related only to domestic violence. The comment we set out above would suggest that the Judge was under the misapprehension that sentencing for sexual offending in a domestic violence context was somehow different from any other sentencing for sexual violence. That is clearly wrong. The other difficulty is that the Judge, in taking such an approach, overlooked a basic principle of sentencing which is that in approaching the starting point it is for a sentencing Judge to consider the appropriate sentence for the most serious case an accused person has pleaded guilty to, or been convicted of. Standard sentencing practice requires a sentencing Judge to consider the most serious offences first. In this case, it was clearly the rape, which carries a maximum penalty of life imprisonment, (compared to the three offences of domestic violence, each carrying a maximum sentence of three years’ imprisonment). The most serious offence must always be the starting point in the sentencing process.
21. At the last session in this Court, both prosecution and defence were put on notice that this Court may well consider whether it is appropriate to reconsider the longstanding authority of R v Ligiau and Dori (as affirmed in Soni v R) as no longer a correct statement of law in sentencing rape, defilement and other sexual offending. Ligiau and Dori was based on the English decision of R v Billam (1986) 1 WLR 349, and laid down a starting point of five years in the case of a contested rape. (Those decisions are now nearly 40 years old). What has frequently been overlooked, both in sentencing submissions, and sentences imposed, is that is a starting point, and that serious uplifts for aggravating features will often be required. As we have said previously such an uplift is almost certainly in years rather than weeks or months.
22. Ligiau and Dori was reaffirmed in the decision of Soni v R [2013] SBCA 6. In that case the sentencing Judge had made mention of a prevalence of offences of a sexual nature against women and children in the Solomon Islands, and the need for deterrence. In Soni, this Court referred to the lack of information as to the prevalence of these offences.
23. However, in R v Pana (408 of 2013), the same sentencing Judge referred to the second interim report of the Solomon Islands Law Reform Commission, published in June 2013. That followed a country-wide study, and the Commission made reference to an “alarming level of sexual violence”. The Commission recommended the creation of new sexual offences, and increases in penalty for others. The report noted that, in comparison to other Pacific neighbours, sentencing for sexual offences in the Solomon Islands was low. This Court, on appeal in Pana v R [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013) accepted the sentencing Judge’s reliance on the accuracy of the figures in the interim report. This Court continues to accept the accuracy of that report.
24. In any event, the acceptance of the material in the report has now been enshrined in statute, because the appropriately rapid legislative response to the report was the Penal Code Cap 26 (Amendment) (Sexual Offences) Act 2016. This was an all-encompassing change to the law to bring it into step with other jurisdictions, to recognise the level of such offending and the need for stronger, more deterrent sentences. Importantly, it expanded the definition of rape so that effectively any type of penetration, absent, consent, is rape. There is also nothing in the amendments to suggest that the legislature consider non penile penetration as some sort of lesser offence. This, in general terms, reflects the approach taken by many other jurisdictions. The amendment also address other important matters and provided definitions.
25. The report, the legislative response and the decisions of this Court should not to be taken as a criticism of the state of Solomon Islands, its people or cultures. Rather, it is a recognition, which virtually every other country in the world has had to confront, that levels of sexual offending against women and children in society was greater and more pervasive than had been thought for many years. Indeed many other jurisdictions have much worse problems including the systemic sexual abuse and violence in institutions that were once held up as pillars of society.
26. Chronologically, the next decision is that of R v Bonuga [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014). In Bonuga there were reference to two defilement cases heard the previous year, which were Pana and Bosamete v R [2013] SBCA 16; SICA CRAC 5 & 6 of 2013 (8 November 2013). In Bonuga case this Court stated, at 48:
    • This Court has also considered the earlier sentences cited from this jurisdiction and share the learned judge's view of their leniency and inappropriateness. In this session of the Court, we have heard an appeal against sentence in another defilement case and have stated our views of the levels of sentencing. The case is Pana v R, Criminal case no 13 of 2013 and our conclusions on the appropriate level of sentencing in such cases apply equally to this case.
27. Further in Bonuga, at 20 we stated:
    • [20] Those comments in the two defilement cases are equally apposite in cases of rape of young people and we reiterate them in that context. The authorities relied on by the respondent in this appeal also indicate to us that the principles of Ligiau, affirmed by Soni, are not being applied.
28. We then went on to restate the aggravating features set out in Billam, and adopted in Ligiau and Dori.
29. Finally, in R v Liva [2017] SBCA 20, this Court reaffirmed the accuracy of the figures in the interim report and confirmed the approach taking them into account. We stated at 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.
30. And further, at 24, we stated:
    • 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.
31. This Court now unequivocally restates and affirms all of the above statements.
32. Notwithstanding the changes to the legislation in 2016, and the strong statements of this Court, numerous appeals by the DPP continue to be heard in this Court, where lenient sentences completely out of line with appellate authority set out above, have been imposed. As we said above, this in part is due to the failure of defence and prosecution to place only the relevant appellate authorities before sentencing Judges. We reiterate again, those decisions are binding on the High Court.
33. Clearly, all of the above matters have occurred in more recent times. We are satisfied in the light of that the time has come to reconsider whether Billams and Ligiau and Dori v R should still apply as binding law in the Solomon Islands.
34. In light of the report referred to earlier, the legislative response and the failure of appellate authority leading to manifestly inadequate sentences in the High Court, we are satisfied that the time has come when we need to specifically overrule Ligiau and Dori and Soni and set new starting points. In doing this, as we have on countless occasions previously, we stress there we are setting a starting point to which must be added aggravating features. We have said in other cases, and stated above again, that serious aggravating features in cases of sexual offending should lead to uplifts in years; not weeks or months.
35. Having considered all of these matters, we consider the starting point for a contested rape should now be eight years imprisonment. Where there is a guilty plea it should be six years. Even a peremptory reading of the authorities we have referred to above will show that the aggravating uplifts will frequently take starting points into the 12 year and above range. That is an appropriate starting point to condemn the worst of this type of offending.
36. In this case, because the sentencing judge, did not set out a specific starting point, and there seems to be, at the very least, some confusion around the rape charge, we effectively need to re-sentence the appellant. This is appropriate as we have all necessary material before us.
37. In this case the starting point of six years applies to the offence of rape. That must be uplifted in the context of the rape count for the extreme violence that was involved, surrounding and including, the act of rape by way of an extremely violent digital penetration that led to bleeding. We also note the other violence, the forced restraint and the use of rocks and sticks. There was an element of pre planning as he took his wife to an isolated place where it would be unlikely others could intervene to assist the victim. There is a breach of trust. A wife is entitled to believe that her husband would not act in the way Mr Bade did. We consider the appropriate uplift would be one of five years, taking us to a starting point of 11 years. We accept the mitigating factors of the guilty plea, and the absence of any previous convictions. However, we do not consider the guilty plea was at the earliest possible opportunity. He first appeared before the Courts on 9 July 2018. If this man was truly remorseful, even though he was not in a position to formally plead, he could have indicated through his counsel his intention to plead guilty as soon as he had the benefit of legal advice. Overall, we are not satisfied the full one-third allowance is appropriate in this case for an early guilty plea. In the circumstances of this case we consider an allowance of two years is adequate, making an effective sentence for the rape of 9 years.
38. We then have to consider the three counts of domestic violence. The uplift for that additional violence in Count 2 has already been taken into account in the aggravating features. These were three counts of domestic violence which were very serious. As the Judge noted the very worst kind of domestic violence. Each of those warranted a sentence of two years’ imprisonment.
39. The question then arises whether they should be served concurrently or consecutively. We are satisfied that the sentence on Count 2 should be served concurrently. As to the other two counts that requires consideration of the totality principle. Looking at this matter overall, we are satisfied that ten years imprisonment is appropriate for this overall offending. Accordingly, on a totality basis we set the sentence for rape at 10 years and the two year terms for each of Counts 1, 2 and 4 are to be served concurrently.
40. There is one further comment we need to make, in that we were advised that the complainant is now living with the appellant’s elderly father and caring for him and her children. She apparently wishes to reconcile with the appellant. While that is a matter we take note of, we can do no better than to cite the decision of the New Zealand Court of Appeal, in which we concur, where O’Regan J stated:^[1]
    • [33] To avoid any doubt, we mention that there are some factors which are sometimes said to reduce the seriousness of conduct, but which, in our view, should not be seen in that light. We place the following factors in this category:
    • (a) Domestic situation: The fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a women or child, where the vulnerability of the victim is a significant factor.
    • (b) Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: Clotworthy at 659. That is not, however, to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest. (our emphasis)

Outcome

41. The appeal is allowed and the sentence is quashed.
42. On the count of rape, the appellant is sentenced to ten years’ imprisonment. On the first, second and fourth counts of domestic violence he is sentenced to two years each, to be served concurrently.

Hansen (P)
Palmer (JA)
Gavara-Nanu (JA)

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^[1] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372; (2005) 21 CRNZ 769.