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R v Pige [2023] SBCA 36; SICOA-CRAC 9014 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Judgment of the Court

1. The respondent pleaded guilty to sexual intercourse with a child contrary to s 139(1) (a) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

Facts

2. At the time of the offending, the complainant was aged five years. The respondent was 24, and lived in the vicinity. On 7 January 2023 he came across the victim having a bath inside a sink outside her house. He came to her, took her by her hand, led her to the bathroom and locked the door. He then inserted one of his fingers into the victim’s vagina. The victim felt pain and wanted to cry, but the respondent stopped her.
3. The victim’s mother called for her, and the respondent, upon hearing this, left the victim and went away. The mother later discovered the child was holding two $1 coins, and when asked where she got them she told her mother that the respondent gave her the coins, and revealed what he did to her.
4. As a consequence the matter was reported to the Tetere Police Station on the same day, and the respondent was eventually arrested and charged.

Sentencing

5. The Judge took a starting point of five years’ imprisonment and added two years for the aggravating features, being the vulnerable young age of the victim; age disparity; the offence being committed in what should be a safe haven, her home; pre-planning — the coins being given to lure her into the bathroom; and psychological harm. He accepted there were two clear mitigating factors: an early guilty plea and no previous convictions. He allowed three years for this, leaving a final sentence of four years’ imprisonment (an allowance of some 40 per cent).
6. However, the Judge went further and said:
   • If you can pay $5000 compensation plus five custom money from the victim’s culture and enter an accepted reconciliation with the victim’s family, then you may be released from prison forthwith, notwithstanding any compensation paid prior to sentence.

Submissions

7. The appellant stressed the aggravating features as accepted by the learned sentencing Judge, as they did with the mitigating factors. But they referred to the need not only for general deterrence, but specific deterrence. The Crown submitted this was because of the prevalence in the unrelenting numbers of sexual offences coming before the courts had reached epidemic proportions. The Crown submitted this must elicit a reaction from the community and from the courts.
8. The Crown also referred to sentence guideline decisions and referred to Pana v R [2013] SBCA 19, where this Court set a starting point of eight years if the victim was below the age of consent. That case, of course, accepted that each case will still depend on its own set of facts and circumstances.
9. They referred further to Mulele v DPP and Poini v DPP [1986] SBCA 6; [1985-1986] SILR 145 where the Court had set out four factors to be considered in sentencing of this sort, including age disparity, abuse of the position of trust, subsequent pregnancy and the character of the girl herself. In this more enlightened age, this last factor seems an anathema to this Court.
10. For the respondent, it was submitted that this Court should continue to apply R v Ligiau and Dori [1986] SBHC 15, as confirmed by Soni v R [2013] SBCA 6, giving a starting point of five years. They also referred to some cases dealing with the allowance that should be given for a guilty plea.
11. As we understand it, both appellant’s and respondent’s counsel accepted that the payment of compensation should not be a way to avoid a sentence of imprisonment, as here. Any such payment is, at best, a mitigating factor to be taken into account in the sentencing process.

Discussion

12. A reading of the Notice of Appeal would suggest that the Crown was only appealing in relation to the order for compensation and its effect. However, it is clear from their submissions that they were also seeking an increase to the four-year term of imprisonment imposed by the Judge, on the basis it was manifestly inadequate. Such an appeal would be pursuant to s 21 of the Court of Appeal Act. (Great care should always be taken to ensure a Notice of Appeal properly puts a respondent on notice as to what is being sought).
13. In other cases during this session we have referred to s 23(3) of the Court of Appeal Act which reads:
    • Determination of appeal in ordinary cases
    • ...
    • (3) On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just.
14. It is clear from that this Court has the jurisdiction on appeal to quash the sentence and pass such other sentence warranted by law, whether more or less severe.
15. Section 27 of the Penal Code states:
    • Compensation
    • 27. Any person convicted of an offence may be ordered to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.
16. We accept the law of the Solomon Islands has always recognised custom, and payment of compensation has always been part of the custom of the people of the Solomon Islands.
17. However, this Court, in Nickson v R [2009] SBCA 17; Criminal Appeal 11 of 2008 (26 March 2009) endorsed the following principle stated by Ward CJ in R v Asuana (1990) SBHC52:
    • It should always be remembered that compensation is an important means of restoring peace and harmony in the communities. Thus the Courts should always give some credit for such payment and encourage it in an appropriate case.
    • Thus any custom compensation must be considered by the Court in assessing sentence as a mitigating factor but it is limited in its value. The Court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble. (our emphasis).
18. A further case of assistance is R v Inwood (Roland Joseph) [1974] 60 CR App R 60 at 174, where the Court of Appeal stated:
    • That leaves for consideration the problem of the compensation order. Compensation orders present new and unfamiliar problems for sentencing courts. We think it important that these orders should be made only when it is plain that they fall within the intent, policy and purposes of the law...
19. The Court of Appeal continued:
    • Compensation orders were not made or introduced into our law to enable the convicted to buy themselves out of the penalties for their crime.
20. We once again endorse the statements of Ward CJ in Nickson, and adopt the statements from R v Inwood as properly stating the law in relation to the payment of compensation, and its effect, in the Solomon Islands.
21. However, in this case it is clear the compensation order made by the judge fell exactly within the category of enabling a convicted person to buy themselves out of the penalties for their crimes. If the Judge had noted that compensation had been paid, he could have taken it into account as a mitigating factor. The Judge was wrong to make the order he did.
22. Turning now to the submission that the four years’ imprisonment imposed was manifestly inadequate. We appreciate the difficulties caused to the respondent by the terms of the Notice of Appeal, but he was clearly on notice what was being sought from the appellant’s submissions and was able to properly deal with them.
23. We are surprised that the respondent did not face a charge of rape. The facts clearly support such a charge. We are conscious that the maximum penalty would be the same. We are also conscious that under the section charged the prosecution does not have to negative consent. But that is clearly covered by s 136A (2) (d) Penal Code. As we have said in other cases in this session we trust the new DPP will review protocols regarding the appropriate charges for sexual offending.
24. This was gratuitous offending against a very young victim. He is fortunate he did not face a rape charge even if the outcome in sentencing terms would be the same. The aggravating features noted by the Crown all apply here. Firstly, there is a 19-year age disparity. Secondly, the very young age of the complainant, which must be taken into account because of the vulnerability involved. Thirdly, the offence was committed at the complainant’s house where she should feel safe and secure. Fourthly, it is clear there was an element of pre-planning in the offending, given he approached her, gave her coins and lured her into the bathroom. There is also the psychological harm as this Court noted in R v Bonunga [2014] SBCA 22 at [23]:
    • There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider 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.
25. We accept there is a very early guilty plea in this case, and there are no previous convictions, although that is often the case in sexual offending. Without doubt, this case has had probably the speediest passage to a sentencing of any in this jurisdiction. However, the allowance made by the Judge of 40% was too generous.
26. In the decision of Bade v R SICOA-CRAC 17 of 2023, 13 October 2023, we have set a new starting point of six years for uncontested rapes. That applied to an adult complainant. In R v Sinatau SICOA-CRAC 14 of 2023, 13 October 2023, we set the proper starting point for offences involving rape or unlawful sexual intercourse of a child under the age of 15. Where the complainant is below the age of consent, the starting point must always be eight years.
27. This gives effect to what this Court stated in Pana v R [2013] SBCA 19 at 15:
    • ... Although the age of the rape victim is always a factor, we consider that, when the victim is a child below the age of consent, that should always bring the starting point up to eight years.
28. We continued at 17:
    • ... 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.
29. This was very serious offending, which must attract the starting point we set out, in Sinatau, of eight years’ imprisonment. Having said that, we recognise there are cases of rape and of unlawful sexual intercourse of children under 15 that are worse than this. Given the aggravating features, in particular the very young age of the child, we consider an appropriate uplift to be three years’ imprisonment. That takes the starting point to 11 years’ imprisonment.
30. As noted, there was an extremely early guilty plea in this case, and the respondent has a clear record. The usual allowance in those circumstances would be 30 per cent at a maximum. We are unclear why the Judge in this case adopted a figure of 40 per cent. It is only in extreme circumstances the allowance should go beyond the generally accepted 30 per cent that has frequently been approved by this Court. In this case, applying a 30 per cent allowance, it leaves a sentence of seven years and three months. Given this is a Crown appeal, we would round that down to seven years.
31. Leave to appeal is granted. The appeal is allowed. The sentence, including the comments regarding compensation, are quashed. The respondent is sentenced to seven years’ imprisonment. He is to be given credit for any time spent in custody before he was sentenced.

Hansen, President
Gavara-Nanu, JA
Lawry, JA