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Bopa v R [2022] SBCA 33; SICOA-CRAC 36 of 2019 (20 October 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Appellant, Philip Bopa from Ravu Sodulu village, Sandfly, Ngella Island, was initially charged with one count of rape contrary to section 137 of the Penal Code. Prior to his trial scheduled for 15 July 2019, a successful plea bargain reduced the charge to one of defilement of a girl between the age of 13 and 15 years.
2. He was re-arraigned on 17 July 2019 under the amended charge of defilement contrary to section 143(1) (a) of the Penal Code, and entered a guilty plea. The offence of defilement carries a maximum sentence of five years.
3. A summary of the facts of the offence was filed on 19 July 2019. This included the following facts. On the said date of the offence, the complainant was accosted at her garden by the Defendant, pulled into the bushes nearby and despite struggling, the Defendant had sexual intercourse with her. As a consequence of this the complainant became pregnant and gave birth to a female child.
4. Sentencing submissions were filed by the Crown and Defence on 29 July and 2^nd August 2019 respectively.
5. In his sentence, delivered on 20^th August 2019, the Deputy Chief Justice noted the agreed facts including the fact that they were known to each other and the mitigating factors raised in favour of the defendant. He noted the difference in age, the victim being between 13-15 years and the Appellant at 40 years. He also noted that the Appellant was a first offender, did not have previous convictions and entered a guilty plea. He also noted that the Appellant is married, has six children and is the bread winner in the home through fishing and gardening. He imposed a sentence of two years effective from the 20^th August 2019.
6. The effect of his Lordship’s sentence despite being reminded of the fact that the Appellant had been in pre-trial custody for not less than four years, was to impose an effective sentence of 6 years. This was in spite of the fact that the maximum penalty for this offence was five years. The sentence imposed was not only excessive but unlawful in that it had exceeded the maximum penalty permitted.
7. In his submissions filed 20 December 2019, Mr Lawry for the Appellant submits that the summary of facts put forward by the Crown is not accepted by the Appellant. However, that is not now open to him to raise as that should have been brought to the attention of the trial judge when the facts were read in court and the defendant asked if he agreed with them or not. We discount that submission in this appeal.
8. The Appellant appeals against sentence on the following grounds:
   • (i) That the Court erred in failing to take into account the period of four years and three months spent in pre-sentence custody; and
   • (ii) That the Court while acknowledging the mitigating factors failed to make any sufficient allowance for them;
   • (iii) The sentence imposed by the Court was manifestly excessive in all the circumstances.
9. He filed his appeal on 22^nd October 2019, which was heard by the Court of Appeal comprising of the President, Justice Goldsbrough and Chief Justice, Sir Albert Palmer. The appeal was basically conceded by the Crown and after issuing directions for submission with the view to a re-sentence exercise, and noting that the Appellant had already been in custody for more than 4 years and would have served his sentence that may have been legitimately imposed by the court, bearing in mind the maximum penalty for defilement is 5 years, ordered that the Appellant be released at the rising of the court pending its determination.
10. The learned Director not objecting the grounds of appeal, and this court accepting that the Deputy Chief Justice ought to have taken into account the period spent in pre-trial custody of 4 years and 4 months in total, ordered the immediate release of the Appellant at the rising of the Court and decided to re-sentence as follows.
11. Defilement of a young child between the ages of 13 and 15 years has always been taken seriously by the courts as children needed to be protected from the predatory activities of adult offenders and should be protected by imposing appropriate deterrent sentences that send out a clear signal to the public that crimes against children will be regarded more seriously because of those considerations. The recent increases in the sentencing powers of the Court, effective from 1^st June 2016, in the recent amendment to the Penal Code, being the Penal Code (Amendment)(Sexual Offence) Act at section 5, which replaced section 143 with a new section 139, reflect the gravity with which Parliament views such offences. The new sentencing regimes were increased as follows:
    • “Sexual intercourse or indecent act – child under 15
    • (1) A person commits an offence if the person has sexual intercourse with a child who is under 15 years of age.
    • Maximum penalty:
    • (a) If the child is under 13 years of age or the offender is a person in a position of trust in relation to the child – life imprisonment; or
    • (b) If the child is between 13 and 15 years of age – 15 years imprisonment.”
12. In the case of Mulele v. Director of Public Prosecutions; Poini v. Director of Public Prosecutions^[1], the Court of Appeal when asked to formulate a sentencing policy stated that each case must depend on its own facts and highlighted some matters which will need to be considered, including disparity of age, abuse of a position of trust and a subsequent pregnancy, and the character of the girl herself. In this case two of the matters referred to were present, being, disparity of age and subsequent pregnancy.
13. Taking into account the age disparity, the victim being 13 years and 1 month and the Appellant 40 years, and that as a consequence she became pregnant, a higher than normal sentence of 4 years should be the starting point. We are satisfied in the circumstances of this case that while the effective sentence of two years imposed by the Court below may have been within range, it was not reflective of the circumstances of offending and the offender and accordingly impose a sentence of 3½ years taking into account all the mitigating factors mentioned in this case.
14. In determining whether that sentence should be ordered to take effect from date of sentence or from the period he was taken into custody, the period already spent in pre-trial should be taken into account.
15. In John Tii v Regina^[2], the Court of Appeal expounded further on this issue.
    • “There may be other matters to be taken into account in arriving at the sentence ultimately imposed. For example, if an offender has been in pre-sentence custody, the sentencing judge should consider making an appropriate allowance for that.
    • In the normal course, pre-sentence custody should be taken into account in an offender’s favour. If a sentencing judge decides not to do so, he should say so expressly and explain why he is not doing so.
    • There is no prescribed way for making allowance for pre-sentence custody. It is important that a sentencing judge take account of all the likely consequences of the way in which he does so. It is reasonable to expect the prosecutor and defence counsel to make any relevant submissions.
    • In a case like the present, where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.
    • A sentencing judge should expose his reasoning, by indicating what matters he has taken into account at each step along the way to arriving at the sentence. Before imposing the sentence, he should review the allowances he has made along the way to ensure that the sentence he has provisionally decided upon is just and appropriate in the circumstances of the case.”
16. In the circumstances of this case, with a sentence of 42 months (3½ years), and one third being deducted for remission, that will leave an effective sentence of 28 months (2 years and 4 months) to be served. The Appellant having already served a total of 4 years and 4 months in pre-trial custody, the sentence to be imposed ought to have been backdated to the time (22 May 2015) when he had been remanded in custody, or have that period deducted from the sentence imposed, and released at the rising of the court.
17. The effect of the error committed by the trial judge in imposing a sentence of two (2) years effective from the date of sentence, (20^th August 2019) is to inflict excessive punishment beyond that permitted by law. In the circumstances, where he felt it was necessary to not back date sentence, he was obliged to say so and explain why he is not doing so. He has not done that.
18. We are satisfied his orders not to back date and sentence of 2 years ought to be quashed and substituted with the following orders.

ORDERS OF THE COURT:

(1) Allow appeal.
(2) Sentence of 2 years imposed by the Court below quashed and substituted with a sentence of 3½ years.
(3) Order that the sentence to be backdated to the date taken into custody.
(4) Direct that the Appellant be released at the rising of the Court.

Justice E. P. Goldsbrough, President
The Court of Appeal
Palmer CJ.
The Court of Appeal.

^[1] [1986] SBCA 6; [1985-1986] SILR 145 (14 January 1986)
^[2] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)