R v Aligao [2023] SBHC 80; HCSI-CRC 20 of 2018 (11 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Aligao
Citation:
Date of decision:	11 August 2023
Parties:	Regina v Mendana Aligao
Date of hearing:
Court file number(s):	20 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	•(A) The concurrent sentences imposed for Counts 1, 2, 3 & 4 be served concurrently, to serve a sentence of 4 years, •(B) The concurrent sentences imposed for Counts 5, 9, 10 & 11 be served concurrently, to serve a sentence of 4 years, •(C) The concurrent sentences imposed for Counts 12, 17, 20, & 21 be served concurrently, to serve a sentence of 4 years, •(D) The concurrent sentences imposed for Counts 22, 27, 29 & 30 be served concurrently, to serve a sentence of 4 years, •(E) The concurrent sentences imposed for Counts 31, 32, 33, & 39 be served concurrently, resulting in a sentence of 4 years, •(F) The concurrent sentences imposed for Counts 41, 42, 43 & 44 be served concurrently, to serve a sentence of 4 years, •The sentence impose for (E) and (F) above be served concurrently that will result to a 4 years, •The sentences imposed in respect of (A), (B), (C) (D) with (E) and (F) be served consecutively, to serve a total head sentence of 20 years imprisonment. •To serve the sentence for this case after the completion or release from the recurrent sentence (other indictment) he is now serving in prison. •No further order
Representation:	Olutimayin R Ms for the Prosecution Ifuto’o B for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 141, S 136, Second Edition Heinemann London 1979
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Regina v Mana [2006] SBHC 145, Koboa v R [1980/81] SILR 43at 46, Regina v Hoka [2012] SBHC 152, Mill v R [1988] HCA 70, Public Prosecutions v Grabovac [1998] 1 VR 664

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 20 of 2018

REGINA

V

MENDANA ALIGAO

Date of Sentence: 11 August 2023

Olutimayin R Ms for the Prosecution
Ifuto’o B for the Defence

SENTENCE

Introduction

You, accused Mendana Aligao were found guilty and convicted after the trail on 5 counts of indecent assault contrary to section 141 of the Penal Code and 19 counts of rape contrary to section 136 of the Penal Code.

The sentence was not yet delivered when the judgment was appealed but appeal grounds was dismissed by the Court of Appeal.

The court noted the discusion and comments by the Court of Appeal on the delay of delivering the sentence for the aacused.

Background

You lived with complainant’s mother Baratepa Toma (deceased) in a defacto relationship when you committed these offences. The offences happened when the accused and complainant’s mother lived together and on certain occasions or sometimes in the vehicle when you worked in a taxi. The complainant treated you as her stepfather.

Maximum Penalty

The maximum penalty for the offence of rape is liable to imprisonment for life and the offence of indecent act, is an imprisonment term of 5 years.

The starting Point

The court convicted the accused on 5 counts of indecent assault and 19 counts on rape after the trail and noting the several charges, the starting point for your sentence on rape is eight years^[1] and for the indecent assault is 5 years.

Submission on Sentence

The DPP submitted that in considering the sentence, the court to take into account the abuse of trust by the defendant. The victim looked to him for protection and the defendant started this abuse to her when she was 7 years old and her vulnerability however the defendant took advantage of her age and vulnerability. The offences were emotional abuse, premediated and were repeated and spanned over a period of 12 years.

DPP further submitted that there are effect of the offences on the complainant:

• At the start of giving evidences she broke down and sobbed quietly,
• Defendant a first man to have sex when she was 11 years old,
• She did not tell her mother about the sexual abuse because she was afraid, ashamed and confused,
• He was having a field day of sex jamboree with mother and two children simultaneously,
• On two occasion he made her pregnant, when she was 12 years old in 2007 and when she was 18 years old in 2013. He told her to lie to her mother on both occasion,
• Defendant was very strict on them and did not allow them to go out.

She asked the court to take into account these in the sentence for this defendant.

Counsel Ifutoó for the defence submitted on the concern in the sentence in this case. The court was not able deliver the verdict and sentence as it took a long time. Such is a well-established mitigating factor that has to be taken into account when considering the appropriate sentence. He referred to the case of Regina v Mana^[2] when his Lordship Palmer CJ uphold the accepted this principle in this jurisdiction that delay will generally have effect of reducing sentence.

Beside the above or what the Defence Counsel described as well-established mitigating factor he further submitted that his client has previous conviction and he is currently serving in prison the sentence of 12 years.

Defence counsel further referred to the range of sentence for the indecent assaults and sexual offences, concurrent and consecutive sentence and the totality principle.

I am please to the counsel to put them in the context, in particular when his client have been convicted on numerous charges, and certainly they are important for the court to decide the appropriate sentences for his client.

The Court

On personal background, I noted that you are 46 years old and have six children.

You, Mendana Aligao had responsibility towards the complainant but you decided to abuse that trust by the repeated and spanned over a period of 12 years of raping and indecent assault on your stepdaughter. For sure, these offences were committed on separate times or occasions.

From the previous conviction on the sexual offences, you should be still in prison for the imprisonment. The previous convictions is important in the assessing of your character and the likelihood that you would change your ways^[3].

You have been convicted on numerous charges of sexual offence in the period of several years. The victim is your stepdaughter and you suppose to look after but instead have abused her by your sexual behaviors.

For sure with this defendant is dangerous to the communities because if he cannot respect his household or abuse of his stepdaughter how much more would be to others. For rehabilitation of this type of person into the community may not be appropriate, as the offender is an adult and currently serving a long sentence.

I note the concern of the delay of the verdict and sentence however; it is on part of all the parties including the court. While this case progress during the last few years, the defendant is currently serving years of imprisonment for similar offences that are now before the court. In other words, the accused has previous conviction with sexual offences as he has just convicted on.

The delay is noted and I agree with remarks by his Lordship Palmer CJ in the Regina v Mana^[4] when he stated that in this jurisdiction the delay would generally have effect of reducing sentence.

Appropriate Sentence and Totality

As usual, the court must to consider the appropriate sentences for the several charges you have been convicted on them. With these offences and the seriousness, if the head sentences to be impose, you will spend all of the remaining years of life in prison.

With the 24 serious charges of sexual offences, an appropriate sentence must be considered as the maximum sentence for each count of indecent assaults is five years and rape is liable to imprisonment for life.

Maximum punishment should be reserved for only the worst sort of cases. The concern here is the imposition of 24 cumulative maximum sentences for the sexual offences would be manifestly unjust. This offender is about 46 years old and from his previous conviction of sexual offence, which he is currently serving in prison thus any sentence impose now for him must not over oppressive otherwise, he may die in prison.

The submission of the Crown is for the court to impose a general deterrent sentence, appropriate retribution and prospect of rehabilitation. While I would agree with deterrent sentence, any sentence the court will impose on the several charges, it must not be crushing sentence.

To ensure the end of justice, it is for the court to consider the appropriate sentence for the offences than or would not impose a head sentence. It would be the sentence that look at the overall and decide whether the total would otherwise be appropriate is a fair and reasonable sentence to impose.

In considering the appropriate sentence for these offences, I adopt the views of Judge Pallaras, in Regina v Hoka^[5] in para 21, and 22:

“21. “However as the crimes of attempted rape were offences committed on different days separated by time over two years, I can see no good reason for ordering concurrent sentences in respect of the separate sentences imposed for the attempted rape offences. The sentences would in those circumstances, ordinarily be ordered to be served consecutively.
22. This approach would result in a head sentence of 22 years (3.5 +4+4.5+5+5). I am conscious that this would be a crushing sentence if fully imposed and that in accordance with the totality principle, I ought to reduce it to avoid such an outcome”.

Judge Pallaras further referred to the High Court of Australia in the case of Mill v R^[6], á method by which this kind of result can be achieved:

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred”.

With the case authorities, there is an upheld of the totality principle of sentencing when averred that, a sentencing judge to ensure that the combination of the sentences imposed for each offence is reflective of a just and appropriate measure of the total criminality involved.

Pallaras Judge further referred to the case Director of Public Prosecutions v Grabovac^[7], on the approach to adopt when sentencing for multiple offences. With this, it will avoid the imposition of what would otherwise be a crushing sentence as discussed:

"In general, a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, ... where practicable where applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence.”

Rape is serious offence and a maximum penalty is shall be liable to imprisonment for life while the offence of indecent assault carries a maximum penalty of 5 years imprisonment. The court has set starting point as noted earlier. With this case, the awful part on the defendant’s side is aggravated by the fact of the offence is repeated thus raise the difficulty to correct or be remedial in the sentence.

I consider and take into account in the sentence all the mitigating, aggravating factors, previous conviction, delay and the sentencing principles. I do adopt the method in sentence as discussed above and satisfy that the following sentence is appropriate for this accused.

Count 1 - Indecent assault 3 years
Count 2 - Indecent assault 2 years
Count 3 - Indecent assault 2 years
Count 4 - Rape4 years imprisonment
Count 5 - Rape 3 years imprisonment
Count 9 - Rape 3 years imprisonment
Count 10- Indecent assault 2 years
Count 11 - Rape 4 years imprisonment
Count 12- Indecent assault 2 years
Count 17 - Rape 4 years imprisonment
Count 20- Rape 3 years imprisonment
Count 21 - Rape 3years imprisonment
Count 22 - Rape 4 years imprisonment
Count 27 - Rape 3 years imprisonment
Count 29 - Rape 3 years imprisonment
Count 30 - Rape 3 years imprisonment
Count 31 - Rape 4 years imprisonment
Count 32- Rape 3 years imprisonment
Count 33 - Rape 3 years imprisonment
Count 39 - Rape 3 years imprisonment
Count 41 - Rape 4 years imprisonment
Count 42 - Rape 3 years imprisonment
Count 43 - Rape 3 years imprisonment
Count 44 - Rape 3 years imprisonment

David A. Thomas In his book on Principles of Sentences^[8] discussed the question whether sentences of imprisonment should be ordered to run concurrently or consecutively and these be in a variety of different ways. Any imprisonment order for concurrent or consecutive is subject to two limiting principles, the one-transaction and totality principles.

For the accused, he is currently serving a term of imprisonment (in different indictment) with a substantial unexpired portion and he had committed the same offences to the same victim. To ensure the end of justice on the 24 charges, the recurrent serving a term of imprisonment, same offences and same victim is good reason to impose concurrent sentence for the coexistent rape and indecent assault.

Combining the sentence in each group of four for rape with indecent assault should results in the following –

1. Count 4 – Rape 4 years imprisonment together with Count 1- Indecent assault 3 years and Counts 2 and 3 – Indecent assault 2 years each (To serve concurrent). The result is 4 years imprisonment,
2. Count 5 – Rape 4 years imprisonment together with Counts 9 and 11- Rape 3 years each and Count 10 - Indecent assault 2 years (To serve concurrent). The result is 4 years imprisonment,

100. Count 17 – Rape 4 years imprisonment together with Counts 20 and 21- Rape 3 years each and Count 12 - Indecent assault 2 years (To serve concurrent). The result is 4 years imprisonment,

4. Count 22 – Rape 4 years imprisonment together with Counts 27, 29 and 30 - Rape 3 years each (To serve concurrent). The result is 4 years imprisonment,
5. Count 31– Rape 4 years imprisonment together with Counts 32, 33 and 39 - Rape 3 years each (To serve concurrent). The result is 4 years imprisonment,
6. Count 41 – Rape 4 years imprisonment together with Counts 42, 43 and 44 - Rape 3 years each (To serve concurrent). The result is 4 years imprisonment,

The Judge in R v Hoka explained the acceptance of the cumulative sentence and concurrency from the High Court of Australia in Mill case, which that case stated:

“If the result of imposing appropriate sentences for a series of offences produces an outcome which is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In this regard I am guided by the preference expressed by the High Court of Australia in Mill and will adapt the orders made as to cumulation and concurrency”.

This principle of cumulation and concurrency sentence is deserved by the accused for his case and accordingly I will adapt orders referred in the cases as discussed.

With your sentence Mendana Aligao, I order accordingly:

Order of the Court

• (A) The concurrent sentences imposed for Counts 1, 2, 3 & 4 be served concurrently, to serve a sentence of 4 years,
• (B) The concurrent sentences imposed for Counts 5, 9, 10 & 11 be served concurrently, to serve a sentence of 4 years,
• (C) The concurrent sentences imposed for Counts 12, 17, 20, & 21 be served concurrently, to serve a sentence of 4 years,
• (D) The concurrent sentences imposed for Counts 22, 27, 29 & 30 be served concurrently, to serve a sentence of 4 years,
• (E) The concurrent sentences imposed for Counts 31, 32, 33, & 39 be served concurrently, resulting in a sentence of 4 years,
• (F) The concurrent sentences imposed for Counts 41, 42, 43 & 44 be served concurrently, to serve a sentence of 4 years,
• The sentence impose for (E) and (F) above be served concurrently that will result to a 4 years,
• The sentences imposed in respect of (A), (B), (C) (D) with (E) and (F) be served consecutively, to serve a total head sentence of 20 years imprisonment.
• To serve the sentence for this case after the completion or release from the recurrent sentence (other indictment) he is now serving in prison.
• No further order

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

---

[1] R v Ligiau and Dori [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)

^[2] [2006] SBHC 145
^[3] Koboa v R [1980/81] SILR 43 at 46
^[4] [2006] SBHC 145
^[5] [2012] SBHC 152; HCSI-CRC 159 of 2011
^[6] [1988] HCA 70; (1988) 166 CLR 59 at 62-63

^[7] [1998] 1 VR 664 at 680
^[8] Second Edition, Heinemann London 1979