Abana v R [2024] SBCA 10; SICOA-CRAC 40 of 2023 (31 May 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Abana v R
Citation:
Decision date:	31 May 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Talasasa J)
Court File Number(s):	40 of 2023
Parties:	Willy Denis Abana v Rex
Hearing date(s):	28 May 2024
Place of delivery:
Judge(s):	Muria P Gavara-Nanu JA Lawry JA
Representation:	T Aisa for the Appellant J W Zoze for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b),
Cases cited:	Laui v DPP [1987] SBHC 4, Bade v Reginam [1988] 10, Alu v Regina [2016] 8, Pana v Regina [2013] SBCA 19,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-6

JUDGMENT OF THE COURT

1. The Appellant pleaded guilty to two counts having sexual intercourse with a child between 13 and 15 years of age contrary to section 139(1)(b) of the Penal Code, as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. He was sentenced to 8 years imprisonment on each count. The judge ordered the sentences to be consecutive, making a total of 16 years imprisonment less 7 months, being the time he had already spent in custody.
2. The Appellant has raised two grounds of appeal. The first is a claim that the sentence was manifestly excessive in the circumstances. The second is that the judge erred in law by making the sentences consecutive rather than concurrent.
3. The facts were set out in full in the sentencing notes of the sentencing judge. The Appellant is the uncle of the complainant. During the night when the complainant was asleep in a room shared with another girl, the Appellant went into her room touched her sexually and commenced having sexual intercourse with her, but was unable to fully penetrate her genitalia. The complainant was aged 13 years at the time.
4. Later In the same month a second incident occurred. The Appellant again went into the room where the complainant lay, he touched her breast, kissed her, removed her trousers and underwear and penetrated her genitalia with his penis.
5. Both counsel agree that the sentence of eight years imprisonment imposed by the judge for the first offence, was appropriate. That figure was arrived at after taking a starting point of eight years, increasing that starting point to take account of aggravating factors, then making an allowance for the mitigating factors, including the guilty plea.
6. The aggravating factors included the breach of trust, the age of the complainant, the disparity between her age and that of the Appellant, the psychological and emotional effect on the complainant. We add that the offending took place in the house where the complainant was sleeping, where she was entitled to be safe.
7. Mitigating factors included the guilty plea to both charges and the fact that the Appellant had not previously been convicted of an offence. The Court also took into account his personal circumstances to the extent that such offending would permit.
8. Both counsel accept that count 2 is more serious than count 1. This is because the offending was repeated. Counsel also both submitted that the judge did not correctly apply the principles relating to sentencing when an Accused person is to be sentenced for more than one offence. In Laui v DPP [1987] SBHC 4 the Court said:
   • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not them consecutive sentences are appropriate subject to the overall total.
   • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time, should properly be made concurrent.
9. Similarly in Bade v Reginam [1988] 10, the Court said:

“When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. It is trite to point out that a man who commits, say, five offences should receive a heavier sentence than a man who only commits one of them. However there are two situations where this rule must be modified. The first, that where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences...The second occasion for modifying the general rule arises where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total.

10. In Alu v Regina [2016] 8, this Court having referred to the single transaction test set out in Laui v DPP [1987] SBHC 4, said:
    • “The test of a single transaction is not just a matter of time but where the offences really form part of a single attack on some other person’s right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent. ...
    • Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”
10. We agree that the judge was in error in making the sentences consecutive as the offending was of a similar nature on both occasions, and was an attack on one person. The Court then needs to consider what the appropriate sentence occurred ought to be in respect of the second offence.
11. We agree that having regard to what this Court said in Pana v Regina [2013] SBCA 19 a starting point of eight years was appropriate on the second count. In Alu the Court said:
    • “In many cases, as in the present case, the fact an offence is repeated on the same victim is a matter of considerable aggravation which can properly and understandably increase the sentence for the subsequent offence.”
12. The present case is one where the repetition of the offending against the same complainant was indeed a matter of considerable aggravation. The aggravating factors present in the first count were also present in the second. All of the aggravating factors including the repetition of the offending must increase the starting point to 14 years imprisonment before turning to the mitigating factors. Considering the guilty plea and other mitigating factors accepted by the sentencing judge we allow a reduction of 4 years to reflect those mitigating factors.
13. We consider that a sentence of 10 years’ imprisonment appropriately reflects the totality of the offending. The appeal is allowed. The sentence imposed in the lower court is quashed. The Appellant is sentenced to eight years imprisonment on count 1 and 10 years imprisonment on count 2. The sentences are to be served concurrently. In calculating the Appellant’s release date the authorities are to take into account the time the Appellant has already spent in custody.

Orders

1. The sentence imposed in the High Court is quashed.
2. On count 1 the Appellant is sentenced to 8 years’ imprisonment.
3. On count 2 the Appellant is sentenced to 10 years’ imprisonment.
4. The sentence on count 1 is to be served concurrently with the sentence on count 2.
5. In calculating the Appellant’s release date the authorities are to take into account the time the Appellant has already spent in custody.

Muria P
Gavara-Nanu J
Lawry JA