Sobana v R [2024] SBCA 16; SICOA-CRAC 42 of 2023 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Sobana v R
Citation:
Decision date:	14 October 2024
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Talasasa J)
Court File Number(s):	42 of 2023
Parties:	Victorina Sobana v Rex
Hearing date(s):	29 May 2024
Place of delivery:
Judge(s):	Muria P Gavara-Nanu JA Lawry JA
Representation:	T Aisa and B Ifuto’o for Appellant J W Zoze for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 142 (2), 139 (2) (b) Penal Code S 142, S 136F, 138, 138A, 139A,139,140,143 (2) or 163,
Cases cited:	Ludawane v Regina [2017] SBCA 23, Alu v Regina [2016] SPCA 8, Rex v Sinatau [2023] SBCA 38, Pana v Regina [2013] SBCA 19
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-8

JUDGMENT OF THE COURT

1. The appellant pleaded guilty to one count of persistent sexual abuse of a child, contrary to section 142(2) of the Penal Code, as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. In the court below he was sentenced to 20 years imprisonment. He has filed an appeal against that sentence.
2. The appellant has filed two grounds of appeal:
   • “Ground one - that the sentence of 20 years imposed on the appellant is manifestly excessive in the circumstances.
   • Ground two - the sentencing judge earned in setting a starting point which is excessive.
3. Section 142 of the Penal Code was introduced to the criminal calendar in the 2016 amendment to the Penal Code. The section provides as follows:
   • “Persistent sexual abuse of child
   • (1) In this section:
   • “sexual offence” means an offence against section 136F, 138, 138A, 139, 140, 143(2) or 163.
   • (2) A person commits an offence if the person engages in an act in relation to a particular child that constitutes a sexual offence on 3 or more separate occasions occurring on separate days during any period.
   • Maximum penalty: Life imprisonment.
   • (3) It is immaterial whether or not the act is of the same nature, or constitutes the same offence, on each occasion.
   • (4) A charge of an offence against this section:
   • (a) must:
     • (i) specify with sufficient particularity the period during which the acts constituting sexual offences allegedly occurred; and
     • (ii) describe the nature of the separate offences alleged to have been committed by the accused during that period; but
   • (b) need not specify or prove the dates or exact circumstances of the alleged occasions on which the acts constituting the offence occurred.
   • (5) A person who is found not guilty of an offence against this section may instead be found guilty of one or more sexual offences relied on as evidence of the commission of the offence without each sexual offence being charged and tried separately.”
4. The section was introduced to recognise the extreme harm that a course of sexual offending conduct can have on a child. The section is consistent with similar provisions that have been introduced in other jurisdictions within the region.
5. Section 142 requires proof of sexual offending against a child on at least three occasions during the nominated period and those occasions are required to be on separate days. The offending can be against any of the following sections of the Penal Code as amended in 2016:
   • Section 136F - Rape,
   • Section 138 – Indecent act without consent,
   • Section 138A – Rape or Indecent act on a person with a significant disability,
   • Section 139 - Rape or Indecent act on a child under 15,
   • Section 140 - Sexual intercourse or indecent act on a child under 18,
   • Section 143(2) – Child commercial sexual exploitation, or Section 163 - Incest.
6. It is clear that offending that is caught by this section can cover offending of different levels of seriousness. The offending alleged against the appellant was that he is a 38-year-old stepfather of the complainant who had sexual intercourse involving penile penetration of her genitalia on three separate occasions in October and November 2019. The complainant was only 14 years old at the time. The complainant became pregnant to the appellant and gave birth to a baby girl as a consequence of the offending.
7. The respondent filed supplementary submissions tendered at the hearing of the appeal. In those submissions he set out the similar legislative provisions in Papua New Guinea, in Queensland, in Victoria, and in New South Wales. He also set out how the judiciary in each jurisdiction has approached sentencing for persistent sexual abuse. Counsel for the respondent submitted in the written submissions that to this Court may wish to provide guidance for the lower courts in respect of section 142 offending as the court has for sexual offending where charges have been laid under section 136F or section 139 of the Penal Code as amended.
8. In the written submissions, counsel raised the possibility that this Court may like to follow a similar process as it did in Ludawane v Regina [2017] SBCA 23. In that case the Court was concerned with the principles in setting minimum terms of imprisonment before parole may be considered, for persons convicted of murder. While we found the written submissions particularly insightful, before this Court considers setting out such a process in respect of section 142, the Court would want to have the benefit of informed argument from both the prosecution and the defence. In this case, the appellant’s counsel had not been shown the submissions prior to coming to Court to argue the appeal. Counsel was therefore not in a position to effectively debate the different approaches taken to such serious offending within the region. Accordingly, for this appeal, we will deal with the issues raised by both counsel in their initial written and oral submissions.
9. In the circumstances of this appeal, both counsel submitted that to the judge was in error in fixing a starting point of 18 years’ imprisonment before making the necessary increase for aggravating factors. In the present case in the High Court, both counsel submitted the appropriate or starting point was 8 years’ imprisonment. The judge in a very detailed ruling, having outlined the aggravating and mitigating factors and having dealt with issues including delay and other comparative sentences, said at paragraph 55:
   • ‘’for the offending in the circumstances of this case, and for the reasons given in the sentencing remarks, I depart from the starting point suggested by both counsel.”
10. The judge took a starting point of 18 years’ imprisonment. He increased that by five years to take account of aggravating factors he accepted. There were mitigating factors, including the guilty plea. The judge allowed a discount of three years for mitigating factors, leaving a final sentence of 20 years imprisonment.
11. The maximum penalty for an offence against section 142 recognises the harm of a course of conduct of sexual offending against the child with its maximum penalty of life imprisonment. In this case, the appellant had pleaded guilty to the offence which set out three instances which all involved sexual offending by a stepfather on a 14-year-old child in his care. The sentencing approach appropriate in this case would be the same as if the appellant was to be sentenced on three separate counts of sexual offending contrary to section 139(2)(b) of the Penal Code, as amended. In accordance with Alu v Regina [2016] SPCA 8 if there were three separate charges alleging such sexual offending on the same child the Court would have to look at the most serious of the charges as the lead sentence, sentences would be concurrent but the Court would need to make an assessment of the total criminality. The aggravating factors would include not just that the offending was repeated but it represented a course of conduct on a child in the Appellant’s household for whom he was in a position of trust.
12. Both counsel submitted that a starting point should have been 8 years. That would be so for a single incident. Even before looking at the repetition on offending there would need to be a marked uplift to reflect the aggravating factors identified by the sentencing judge. The difficulty with the way the sentencing judge approached the fixing of the starting point is that it appears that the aggravating factors have been taken into account twice. The first is increasing the starting point to 18 years imprisonment then adding a further 5 years to take account of the aggravating factors. The guidelines set out in Pana v Regina [2013] SBCA 19 were by this Court in Rex v Sinatau [2023] SBCA 38. The effect of the guidelines is that they assist the judges in fixing a starting point. The guidelines are not to be seen as rigid in the sense of taking aware the role of the judges in assessing the criminality involved, however if a judge is to depart from the guidelines it is incumbent on the judge to set out the reasons for departing from what this Court considers is an appropriate starting point.
13. Although there were two complainants in that case, the present case is much more serious as it involved the course of conduct and breach of trust previously referred to and the subsequent pregnancy of the complainant. The offending occurred in the family dwelling, a place she should have been able to be safe from others. We do not consider the present case is one where the age of the victim was an addition aggravating factor as unlike in Pana where the victim was only 3 years of age, the victim was 14. For an offence brought under section 139 the victim would need to be no older than 14 so this is not a case where the actual age could properly be considered as an aggravating factor.
14. For the first incident a starting point of 8 years imprisonment would have been appropriate. The uplift for the aggravating factors of offending in the family home, the breach of trust and the undoubted psychological harm and finally the disparity in age would require an uplift of at least four years.
15. The starting point would need a further increase if the sentencing were on just the first two incidents because the breach of trust and the psychological harm must be all the greater for repeated offending on the child in his own family. For the third incident the criminality must then take into account the effect of the course of conduct and although we do not know whether the pregnancy was the result of the offending on the earlier occasions or the final occasion it is certainly a major aggravating factor that would need to be applied to the totality of the offending. For these reasons we consider the 18 year starting point taken by the judge was available to his after taking into account all the aggravating factors when standing back at viewing the offending as a whole. From that point an allowance should be made for the mitigating factors. The most important of these was the guilty plea. That plea could not be said to have been an early plea as it was not entered until August 2023, nearly four years after the offending and only after a warrant had been issued for the arrest of the Appellant following a failure to attend Court.
16. Your personal circumstances do not warrant much discount at all because of the nature of your offending. While the Appellant did not have previous convictions he chose to offend after the first incident. The discount allowed to the Appellant in the circumstances was generous. We will not reduce that discount because the guilty plea, although not an early plea was an acknowledgement of the offending and save the victim from having to relive the trauma in Court, bringing finality to the Appellant’s predatory sexual conduct. We agree with counsel’s conclusion as to the appropriate final sentence.
17. The starting point of 8 years’ imprisonment is increased to 18 years to reflect the total criminality after taking into account the aggravating factors. Three years is deducted to reflect mitigating factors, in particular the guilty plea entered. The appeal is allowed. The final sentence is reduced to 15 years imprisonment.

Orders

1. The appeal is allowed.
2. The sentence of 20 years’ imprisonment is quashed and replaced with a sentence of 15 years’ imprisonment.

The time spent in custody is to be taken into account by the authorities in calculating the Appellant

Muria P
Gavara-Nanu J
Lawry JA