MK v R [2021] SBHC 172; HCSI-CRC 415 of 2021 (20 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	MK v R
Citation:
Date of decision:	20 December 2021
Parties:	MK v Regina
Date of hearing:	6 December 2021
Court file number(s):	415 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:	Magistrates Court
Order:	1. Appeal allowed. The sentence of 6 years and 9 months’ imprisonment is quashed. 2. The sentence on count 1 is 2 years’ imprisonment. 3. The sentence on count 2 is 3 years’ imprisonment 4. The sentence on count 3 is 5 years’ imprisonment. 5. The sentences on count 1 and on count 2 are to be served concurrently with the sentence on count 3, commencing on the date set in the original sentence. 6. The total sentence is therefore 5 years imprisonment.
Representation:	Mr S Aupai for the Appellant Ms M Rehomora for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016, S 138, S 138 (1) (a) Penal Code S 142
Cases cited:	Pana v Regina [2013] SBCA 19, R v Bonuga [2014] SBCA 22, Laui v Director of Public Prosecutions [1987] SBHC 4, Bade v Reginam [1988] SBHC 10, Alu v Reginam [2016] SBCA 8, Oli v Regina [2008] SBHC 43, Postiglion v The Queen [1997] HCA 2, Berekame v DPP Criminal Case No. 2 of 1986

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 415 of 2021

MK
Appellant

V

RGEINA
Respondent

Date of Hearing: 6 December 2021
Date of Decision: 20 December 2021

Mr S Aupai for the Appellant
Ms M Rehomora for the Respondent

RULING ON APPEAL AGAINST SENTENCE

Introduction

1. On 27 May 2021 the Appellant pleaded guilty to three counts of committing an indecent act on his daughter who was then aged 11 years on the first count and to 12 years on the second and the third counts. He was sentenced on 29 May 2021 to a total sentence of 6 years and 9 months imprisonment. He has appealed against that sentence.

Grounds of Appeal

2. The Appellant has raised only two grounds of appeal. The first ground pleads that the sentence imposed was manifestly excessive. The second ground pleads that the sentencing Magistrate failed to properly apply the totality principle. The sentencing Magistrate took a starting point of two years’ imprisonment for the first count, 3 years’ imprisonment for the second count and 4 years’ imprisonment for the third count. A reduction was made in relation to each count to take account of the mitigating factors including the guilty pleas. That reduction was said to be 8 months in respect of each count but was in fact 8 months on the first count, 10 months on the second count and 9 months on the third count. The Magistrate considered that the sentences should be served consecutively then turned her mind to the issue of totality and considered that no further reduction should be made. That left the sentence, referred to in paragraph 1, as six years and 9 months’ imprisonment.

Preliminary Matters

3. The Information laid, the submissions of counsel and the decision from the Magistrate all refer to the charges as being for offending against section 138 of the Penal Code (Amendment)(Sexual Offences) Act 2016. That Act has only 8 sections. It amended the Penal Code. Included in those amendments was the repeal of some sections and the inserting of other sections. Section 138 formerly dealt with attempts. It was repealed by Penal Code (Amendment) (Sexual Offences) Act 2016 which inserted a new section 138 into the Penal Code. I am satisfied however, that there has been no confusion as to what it was that the Appellant was pleading guilty to. I note that the Appellant was represented by senior counsel at the time the pleas were entered. The Statement of the Offence in the Charges laid should have referred to the section as section 138(1) (a) of the Penal Code and could have included the words “as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.”
4. The Court has turned its mind to whether or not this matter should be sent back to the Magistrates’ Court but as there is no appeal against conviction, no issue has been raised by counsel and there has clearly been no misunderstanding by the Appellant, the Court is satisfied that there has been no substantial miscarriage of justice in terms of section 293 of the Criminal Procedure Code. Accordingly the appeal will be treated as being an appeal against sentence for three charges of offending against section 138(1) (a) of the Penal Code.

Submissions on behalf of the Appellant

5. The Appellant makes no challenge to the starting points selected by the sentencing Magistrate. He does not challenge the reduction in sentence for mitigating factors including the guilty pleas. He has limited his submissions to whether the sentences imposed should have been concurrent rather than consecutive.
6. The Appellant has chosen to place no authorities before the Court on the issue of fixing a starting point for offending against section 138(1) (a). The Court must however consider the effects of sexual offending against children, particularly from a father on a child under the age of 13. The Court of Appeal made comments about sexual offending against children in Pana v Regina [2013] SBCA 19. At paragraph [17] the Court said: “We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. 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 the sentence will usually be greater the younger the child.”
7. In Pana the Court was dealing with a very serious case of defilement. In R v Bonuga [2014] SBCA 22 the Court of Appeal said: “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that 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.”
8. In this case the Appellant has sexually abused his daughter initially when she was only 11. That offending involved the child being required to touch the testicles of the Appellant who then masturbated in front of her. The sentencing Magistrate was correct to make the comments she did about the gross breach of trust and the effect of the offending on the Appellant’s own child. The charge to which the Appellant pleaded guilty, relied on the relationship between the Appellant and his child as the aggravating feature that brought into play the maximum sentence of 10 years imprisonment. The alterative feature present in this case was the fact that she was only 11 at the time. That feature would also bring the offending within the 10 year maximum sentence. In these circumstances the starting point for the first offence could not have been any less than the two years selected by the sentencing Magistrate and could well have been higher.
9. For the second offence the starting point needed to be significantly higher than the first count as it represented a continuation of the sexual abuse. Similarly the Magistrate needed to consider a further increase for the third count as it then met the criteria for persistent sexual abuse, section 138 being one of the qualifying sections set out in section 142 of the Penal Code.

Concurrent or Consecutive

10. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [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.”

Later the Court said:

“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.”

11. In Bade v Reginam [1988] SBHC 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...”

12. The approach taken in Laui and Bade was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. In Alu v Reginam [2016] SBCA 8 the Court of Appeal confirmed the way that Courts should treat offending repeated on the same victim. If the offending could be said to be part of a single transaction the sentences should be concurrent rather than consecutive. However the Court went on to say at paragraph [18]: “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.”
13. In this case the offending was repeated offending against the same victim on three occasions. The offending was similar in nature. The offending was therefore a single transaction. On the basis of Laui and Bade the Court needed to turn its mind to whether the sentences should be concurrent or consecutive. In Bade, the use of the words “may be grounds for concurrent sentences” suggests that the principle is not to fetter the discretion of the sentencing Court. The learned Magistrate turned her mind to whether the sentences should be consecutive or not and concluded that in the circumstances of the Appellant’s case they should be consecutive. If the sentences had been concurrent the Court would need to consider the totality of the offending and in this case that would require a significant increase.

Totality

14. Ground 2 of the Appeal pleads that the Magistrate failed to properly apply the totality principle. The Appellant made no submissions in support of this ground. The appeal proceeded solely on the submission that the sentences should have been concurrent. The sentencing Magistrate did consider the totality principle and concluded that no reduction should be made. This Court should not simply guess in what way the Appellant submits that exercise was not improper. The Court was required to consider that the offender was the father of a girl who was aged only 11 at the start of the offending. The offending showed a gross breach of trust depriving the victim of her innocence and her education. It was repeated conduct not just once but twice. Although the starting point may be said to be high the 27 months’ reduction allowed for the mitigating features was also very generous.
15. The Respondent brought to the attention of the Court the comments from this Court in Oli v Regina [2008] SBHC 43 where at paragraph [15] the Court adopted what was said in Berekame v DPP Criminal Case No 2 of 1986.
    • "A Court of Appeal will not interfere with the trial Judges’ discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the Judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence".
16. At paragraph [16] the Court said: “This court is loathe to interfere, or indeed will only interfere with the exercise of the lower courts sentencing discretion, where either or the above principle has not been given proper consideration.”
17. At paragraph [28] the Court dealt with the principle of totality and referred to the Australian High Court case of Postiglion v The Queen [1997] HCA 26 where Kirby J said:
    • "a sentence may offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is in its totality, not "just and appropriate". The last mentioned conclusion will more readily be reached where the Judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitate and reform".

Application of the principles

18. The sentencing Magistrate correctly described the seriousness of the offending. She rejected the explanation given by the Appellant and set out her reasons for rejecting that explanation. She set a starting point for each offence that has not been challenged. She turned her mind to whether the sentences should be made concurrent or not. This Court accepts that generally the sentences would have been concurrent for this offending. However in determining that the sentences should be consecutive, she turned her mind to the totality principle and considered that bearing in mind what the Appellant had taken from his own daughter, her age at the time and the repeated conduct that there should be no reduction in the sentence.
19. The Magistrate therefore turned her mind to the correct principles. Had she imposed concurrent sentences there would need to be a significant increase to reflect the totality of the offending. That increase could raise the starting point to 6 or seven years. An increase in the sentence for each offence does not take account of the totality of the offending. It simply reflects an increase in the aggravating features. The Magistrate allowed a very generous discount for the guilty pleas and the other mitigating factors, totalling 27 months. Adding the 27 months reduction to the final sentence indicates that the Magistrate took a starting point of 9 years’ imprisonment. In spite of the lack of assistance from counsel, this Court finds 9 years is too high for a starting point. The appeal will be allowed. A starting point of 6 years is appropriate. The 8 months reduction to reflect the guilty plea and other mitigating matters was generous but appropriate for the first offence. It saved the complainant the trauma of reliving the offending and the stresses of facing questioning in Court. It was however inevitable given the admissions made by the Appellant. An increase in the reduction should be made to reflect the pleas to the remaining offending. A total reduction of 12 months is made for mitigating features. The sentence therefore is reduced to 5 years’ imprisonment.
20. The Appellant made no submissions about the issues raised in Postiglion. This Court cannot say that looking at the offending as a whole that a sentence of 5 years imprisonment was unjust or was inappropriate. The Magistrate was required to impose a sentence that provided both a general and specific deterrence. To do otherwise would be to ignore the seriousness of sexual offending on children and in particular the Appellant’s own child. The Court repeats that she was still only 11 years old at the time the offending commenced.

Orders

1. Appeal allowed. The sentence of 6 years and 9 months’ imprisonment is quashed.
2. The sentence on count 1 is 2 years’ imprisonment.
3. The sentence on count 2 is 3 years’ imprisonment
4. The sentence on count 3 is 5 years’ imprisonment.
5. The sentences on count 1 and on count 2 are to be served concurrently with the sentence on count 3, commencing on the date set in the original sentence.
6. The total sentence is therefore 5 years imprisonment.

By the court
Justice Lawry PJ