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Neneke v R [2024] SBCA 24; SICOA-CRAC 41 of 2023 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appellant is appealing the sentence of 20 years 8 months imposed on him by the primary judge after pleading guilty to two counts of sexual penetration of a girl under the age of 15 years, contrary to s. 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act, 2016; three counts of indecent assault of a girl under the age of 15 years, contrary to s. 139 (2) (b) of the Penal Code (Amendment) (Sexual Offences) Act and one count of indecent assault also of a girl under the age of 15 years, contrary to s. 139 (2) (a) of the Penal Code (Amendment) (Sexual Offences) Act, 2016.
2. In respect of the first and second counts, the complainant was 13 years old. In respect of the third, fourth and the fifth counts, the complainant was also 13 years old. In respect of the sixth count, the complainant was just a bit over 11 and half years old.
3. The appellant was 32 years old married man. The appellant and the complainants come from Meamoge village, Rarumana, in Parara Island, Western Province.
4. All the offences were committed in the month of October, 2022, on dates unknown and on different occasions. The circumstances of offending were also different.

Agreed facts

5. The parties agreed to certain facts regarding the manner of offending. In respect of the first count, the complainant and the appellant met on a road, the appellant told the complainant he wanted to touch her breasts, the complainant told the appellant there were people out on the reef. The appellant ignored the complainant’s concern and put his hand inside her shirt and touched her breasts. The appellant then put his hand inside her trousers and put two of his fingers inside her vagina, then left.
6. As to the second count, the complainant went to the seaside in the afternoon. While standing there, the appellant approached her from the back, pulled her left hand and pulled her into the nearby bushes where he pushed his hand in the complainant’s shirt and touched her breasts. He then laid her down, removed her clothes licked her vagina, then put his finger inside her vagina before removing his clothes and sexually penetrating her. He let the complainant go when he heard her mother calling her. The appellant ran away.
7. Regarding the third count, the complainant was sitting with friends telling stories in the village, the appellant wanted to touch her breasts, but the complainant told him there were people around. Sometime later, the appellant went and touched the complainant’s breasts, with her clothes on. As to the fourth count, the complainant was playing with friends in the village, after her friends left, the appellant went to the complainant and asked to touch her breasts. He then put his hand inside her shirt, touched her breasts, pulled out her breasts and sucked the nipples. He then pushed his hand inside her skirt and touched her vagina. For the fifth count, the complainant went to the appellant’s place, she was with the appellant’s wife in the kitchen. When appellant’s wife left to have her bath, the appellant touched the complainant’s breasts while she had her clothes on. He then left.
8. Regarding the sixth count, the complainant was playing with her friends in the village. The appellant was with his wife in their kitchen. After playing, the complainant went to the appellant’s kitchen to drink water. When the complainant got to the kitchen, the appellant’s wife had already left, only the appellant was in the kitchen. The appellant asked the complainant to touch her breasts, the complainant got scared and ran away. The complainant reported the matter to her mother who later reported the matter to the police. The appellant was then arrested and charged by the police.

Primary judge’s ruling on sentence

9. The primary judge stressed at the outset of his judgment that the offences were very serious because they were against children. The judge also noted that these types of cases were becoming prevalent throughout the country and the Parliament in its own wisdom amended the laws relating to sexual offences against children to curb the rise in sexual offences, especially against children. The judge noted that in his circuit list, cases involving sexual offences against children rated the highest at 97% to 98%.
10. The primary judge sentenced the appellant in this way: -
    1. Count 1 – 8 years imprisonment.
    2. Count 2 – 8 years imprisonment.
    100. Count 3 - 3 years 6 months imprisonment.
    4. Count 4 - 3 years 6 months imprisonment.
    5. Count 5 - 3 years 6 months imprisonment.
    6. Count 6 – 1 year 2 months imprisonment.
    7. Sentence for count 1 to be served consecutively with the sentence for count 2.
    8. Sentences for counts 4 and 5 to be served concurrently with the sentence for count 3.
    9. Sentences for counts 1 and 2 to be served consecutively with the sentence for count 3.
    10. Sentences for counts 1, 2 and 3 to be served consecutively with the sentence for count 6.

Grounds of appeal

11. The appellant raised two grounds of appeal: -
    1. The sentence of 20 years 8 months imprisonment is manifestly excessive in the circumstances.
    2. The sentencing judge erred in the application of the totality principle.

The appellant asks this Court to allow the appeal and set aside the sentence of 20 years 8 months and substitute it with a lesser term.
The appellant also seeks any other orders the Court may deem fit.

Submissions
(i) By the appellant

12. Miss Tracey Aisa, counsel for the appellant submitted that sentences for the six counts are manifestly excessive. She argued that this is because the primary judge failed to apply the totality principle correctly.
13. It was argued that this Court should follow R v. Sinatau [2023] SBCA 38 and adopt 8 year starting point applied in that case. The appellant also relied on several other cases, including Thomas Bade v. Rex [2023] SBCA 39; Pana v. R [2013 SBCA 19 and R v. Pige [2023] SBCA 36.
14. Miss Aisa also relied on R v. Balekwai [2020] SBHC 84, in submitting that penetration of the victim’s vagina with fingers by the appellant should attract the same starting point of 8 years.
15. It was submitted that applying the starting point in R v. Sinatau (supra), the starting point for count 1 should be 8 years, which should also be the term of imprisonment. For count 2, again applying Sinatau, it was submitted that the starting point should be 8 years with an uplift of 4 years for the aggravating factors, then for the plea of guilty and other mitigating factors, there should be a reduction of 3 years. Thus, resulting in the term of 9 years imprisonment. It was submitted that counts 1 and 2 having been committed on the same victim, the sentences for both counts should be made concurrent. Thus, effectively for counts 1 and 2, the appellant should serve only 1 year imprisonment.
16. For count 3 it was submitted that the starting point should be 1 year because it is a less serious offence, that should also be the term of imprisonment. For count 4, it was submitted that the starting point should be 3 years with an uplift of 1 year for the aggravating factors then a reduction of 1 year, for the mitigating factors resulting also in 3 years, which should also be the term of imprisonment. For count 5, it was submitted that the starting point should be 2 years with an uplift of 1 year for the aggravating factors, then a reduction of 1 year for the mitigating factors, thus resulting in 2 years imprisonment. For count 6, it was submitted that the starting point should be 6 months, then an uplift of 6 months for the aggravating factors, then a reduction of 6 months for the mitigating factors, resulting in 6 months imprisonment.
17. In addressing the totality principle, Miss Aisa relied on what Ward CJ said in Bade v. The Queen [1988] SBHC 10; [1988-89] SILR 121, his Lordship 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. However, there are two modifications, namely-
    • (a) 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; and
    • (b) where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case”.
18. It was submitted that the primary judge erred in ordering consecutive sentences for counts 1 and 2 because the offences were committed on the same complainant in the same month. It was therefore submitted that the offences arose out of the same or closely related facts. The sentences should have therefore been made concurrent.

It was argued that total sentence for all the counts should be between 13 to 15 years imprisonment.

(ii) By the respondent

19. Mr Andrew Kelesi, counsel for the respondent submitted that -the primary judge emphasized the aggravating factors which included the big age gap between the appellant and the complainants, which were 19 years and about 20 and half years respectively. Mr Kelesi relied on Pana v. Regina [2013] SBCA 19, where this court said in sexual offences involving children, the aggravating factors will increase the sentences substantially.
20. It was submitted that besides the tender age of the complainants, other aggravating factors the primary judge considered were the vulnerability of the complainants the appellant exploited and took advantage of, the physical and emotional trauma the complainants went through, more significantly, the psychological scars they will live with for the rest of their lives. Other aggravating factors the primary judge took into account were, community outrage and indignation against the sharp rise in sexual offences against children which resulted in new laws being passed by the Parliament to try and curb the rise in such crimes.
21. Mr Kelesi stressed that the primary judge also emphasized that sentences needed to have an element of strong deterrence because of the prevalence of sexual offences against children. It was submitted that the primary judge particularly noted that all six counts were committed within one month and the appellant only stopped his predatory adventures against underage girls when the last complainant reported him to her mother and later to the police.

Mr Kelesi referred to some cases for court’s guidance, such as Pana v. Regina (supra); and Regina v. Baia [2023] SBCA 9.
He placed emphasis on Tii v. Regina [2017] SBCA 6, in which this Court set out some important sentencing guidelines. The Court said: -

• “In an approach to sentence, a sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation. The starting point should be consideration of the facts of the offence and of the appropriate range of penalty for the offence constituted by those facts. Then any aggravating circumstances should be identified. The sentencing judge’s attention should then turn to facts relating to the offender – his antecedents (including personal circumstances and criminal history, if any) and mitigating factors such as youth, remorse or plea of guilty (including the circumstances in which the plea was entered)”. (Our underlining).

Consideration

22. The primary judge had due regard to the agreed facts by the parties regarding how the appellant committed the offences, when deciding sentence.

His Lordship considered submissions by both counsel in detail, including the totality principle, in respect of which his Lordship adopted the statement by Ward CJ in Bade v. R (supra). The learned Chief Justice said: -

• “I agree with prosecuting counsel’s submissions on the law. The judgment of Bade v. The Queen sets the foundation in this jurisdiction on the totality principle when considering sentence for a number of offences”.

Before passing sentence, the learned primary judge concluded with these remarks: -

• “The Court of Appeal in the appeal case of R v. Benson [1922] SBCA 22; SICOA-CRAC15 of 2022 (4 November, 2022) highlighted the importance of imposing an appropriate sentence when confronted with the question of whether to impose a consecutive or concurrent sentence; referring to an earlier case of Angitalo v. Regina [2005] SBCA 5; CA-CRAC 024 of 2004 (4 August, 2005): -
• “...the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is not appropriately heavy or lenient”.
• I outline them as follows: -
• (i) The various offences were committed at separate times over a period of time on three separate victims.
• (ii) All victims were less than 15 years of age. They were of very tender age. The specific ages of each victim have been outlined earlier in my sentencing remark.
• (iii) The criminality of the offender demands a sterner penalty than a single one-off incident. That is reflected in the sentences imposed above.
• (iv) In view of the criminality of this type of offending and the circumstances outlined and referred to in my consideration in this ruling, and taking into account the totality principle as highlighted, the order is as follows”. (Our underlining).

23. The general principle applicable in an appeal against a discretionary judgment is that there is strong presumption in favor of the correctness of the decision appealed from and that the decision should be affirmed unless the appellate court is satisfied that it is clearly wrong. Such error may exist where the primary judge acted on a wrong principle or gave weight to extraneous or irrelevant matters or gave no weight at all or failed to give sufficient weight to relevant matters or mistook facts or misunderstood some salient features of the evidence. Sometimes errors may not be discoverable or obvious, but the result is so unreasonable or plainly unjust that the appellate court is able to infer that there has been a failure by the primary judge to exercise its discretion properly, only then that the decision should be disturbed. See, House v. King [1936] HCA 40; [1936] 55 C.L.R 62; Saukoroa v. R [1993] SILR 275 and Iroga v. Regina [2014] SBCA 11; SICOA-CRAC 24 of 2013 (9 May, 2014) and R v. Benson [2022] SBCA 22; SICOA-CRAC 15 of 2022 (4 November, 2022).
24. In an appeal against sentence either for being manifestly excessive or for being manifestly inadequate, the test should be whether the sentence is either way beyond or way below the accepted sentencing range. This will require the court to have regard to the circumstances of the case and relevant comparative sentencing in similar cases for guidance. But for any sentencing tariffs or guidelines to be adopted for a starting point in a sentence, the court should always be guided by the circumstances of the case. Reasons should be given for adopting the starting point based on the circumstances of the case under consideration, particularly the criminality of the offender.
25. A trial court’s exercise of its judicial discretion when deciding an appropriate sentence is both inherent and statutory, the latter is conferred by s. 24 of the Penal Code, Cap. 26. But discretion must be exercise properly and judiciously.
26. Having regard to these principles, our task is to determine whether the primary judge fell into any identifiable error or errors in the exercise of his sentencing discretion. Alternatively, although there is or are no identifiable error(s), the sentences are so unreasonable and plainly unjust that we can conclude that an error or errors have occurred in the exercise of the sentencing discretion by the judge, thus allow the appeal and set aside the sentences.
27. The determinative issue is whether the primary judge applied the totality principle correctly. The appellant argues that the primary judge erred in his application of the principle, which it is submitted resulted in the sentences being manifestly excessive. The grounds of appeal are centered around this issue.
28. The question of whether sentences should have been made concurrent or cumulative must be determined in accordance with established principles. The general principle applicable is that sentences should be made concurrent if the offences arose out of the same enterprise or were so connected that they could be regarded as part of one incident or were committed in the prosecution of a single purpose or arose out of the same or closely related facts. See, Aigitalo v. Regina [2005] SBCA 5; CA-CRAC 24 of 2004 (4 August, 2005) and Alu v. Reginam [2016] SBCA 8; SICOA-CRAC 27 of 2014 (22 April, 2016).
29. In this case, the offences were committed on different dates but within the same month. The circumstances of offending were different. The fact that the complainant in counts 1 and 2 was the same was not the necessary criteria for the sentences for those counts to be made concurrent. That was entirely up to the discretion of the primary judge. We do not find any error in the exercise of sentencing discretion by the primary judge in ordering cumulative sentences for the first two counts. We also do not find any error regarding the sentences for the remaining four counts. In our view, his Lordship had proper regard to all the relevant facts and circumstances of the case when passing sentences and we find the sentences reflect the criminality of the case. The primary judge had regard to the totality principle in passing sentences. This is reflected in ordering both consecutive and concurrent sentences although the offending happened on different dates and under different circumstances. We find the sentences accord with what this Court said in Angitalo v. Regina (supra): -
    • “Where the arithmetic total of consecutive sentences result in an effective sentence that is inappropriately harsh, the sentencing court can properly make the necessary adjustment reducing one or more of the accumulated sentences so that the total term is not excessive.
    • ...Again, the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is inappropriately heavy or low”.
30. We do not agree with the range of sentences proposed by the appellant. In our view, they do not reflect the seriousness and the gravity of the offences, and we are not persuaded that they accord with the totality principle.
31. The proposed sentences by the appellant no doubt is to spotlight the errors the primary judge is said to have made, one of which is the alleged failure to give weight to the appellant’s pleas of guilty. It was submitted that mitigating factors were not given sufficient weight. We cannot agree with this submission. Not only was the primary judge very careful in addressing his mind to all the relevant issues, including the pleas of guilty, but he also considered the merits of the case thoroughly in deciding the sentences, which in our view were fair and reflective of the criminal conduct of the appellant.
32. We also find the proposed adoption of various starting points from other cases by the appellant for the sentences given in this case without proper regard to the merits of this case cannot determine proper and appropriate sentences. Significantly, such an approach does not account for the criminality of the appellant. Adopting starting points from other cases, then simply add or subtract suggested terms from those starting points for aggravating and mitigating factors without regard to the circumstances of the case under consideration is also in our view inconsistent with the totality principle. If a starting point from another case is adopted, reasons for its adoption must be given based on the facts and circumstances of the case that is before the court. The starting points only serve as guidelines to assist the court decide an appropriate sentence. This Court made similar observations in Pana v. Regina (supra) when adopting what was said in Millberry v. R [2002] EWCA Crim 2891, when sounding a warning against double accounting with the use of starting points, this Court said: -
    • “The aim of guidelines is to give the sentencing judge general guidance on the appropriate level of sentence. They can do no more. They can never take away from the judger the determination of what is proper and appropriate sentence for the particular case the court is considering. In all such cases the judge should bear in mind the warning given in Millberry;
    • “Guidelines...can produce sentences which are inappropriately high or inappropriately low if sentences merely adopt a mechanistic approach to the guidelines. It is essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances. Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately. Guideline judgments are intended to assist the judge arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge”. (Our underlining).
33. This Court further noted in Pana an observation by the trial judge in which the judge said: -
    • “In my judgment this is precisely the sort of case as mentioned in Billam, where the circumstances of the case warrant a departure from the starting point”.

This further illustrates that starting points as guidelines, should not be adopted without regard to the circumstances of the case that is being considered.

34. The approach adopted by the appellant presents a danger in allowing sentencing tariffs or guidelines to control and curtail the sentencing discretion of the primary judge. This Court has the duty to protect proper exercise of the judicial discretion by a primary judge.
35. The exercise of sentencing discretion must be guided by the merits of the case, including the criminality of the offender. Use of mathematical formulars in adding and subtracting proposed terms for aggravating and mitigating factors to or from starting points adopted from other cases without regard to the merits of the case would more likely than not render sentencing become mechanical. See, Pana v. Regina (supra).
36. In this regard, we find observations by this Court in Tii v. Regina [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May, 2016 pertinent and we adopt them. In that case, this Court said: -
    • “In an approach to sentence, a sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation. The starting point should be consideration of the facts of the offence and of the appropriate range of penalty for the offence constituted by those facts. Then any aggravating circumstances should be identified. The sentencing judge’s attention should then turn to facts relating to the offender – his antecedents (including personal circumstances and criminal history, if any) and mitigating factors such as youth, remorse, or plea of guilty (including the circumstances in which the plea was entered)”. (Our underlining).
37. In our view, the primary judge thoroughly considered all the relevant circumstances of the case, especially the criminal conduct of the appellant and other serious aggravating factors in arriving at the sentences.
38. The behavior of the appellant in our view typified those of a sexual predator having obsession for underage girls. This is obvious from his actions against the victims in public and ignoring any form of resistance by any of them. The appellant was therefore clearly a danger to the children and the community at large, and in our view, the sentences fit the seriousness of offending.
39. The sentences also sufficiently account for all the mitigating factors, including the pleas of guilty.
40. The appellant carries the onus to prove that the sentence of 20 years 8 months is indeed manifestly excessive and has resulted in actual miscarriage of justice. He has failed to discharge the onus on him.
41. For the foregoing reasons, we dismiss the appeal and affirm the sentences.

Muria P
Gavara-Nanu J
Lawry JA