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Aliago v R [2024] SBCA 15; SICOA-CRAC 31 of 2023 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against sentence brought by the appellant following his trial, conviction and sentence on 5 counts of indecent assault, contrary to section 141(1) of the Penal Code and 19 counts of rape, contrary to section 136 of the Penal Code. He was sentenced to 20 years imprisonment.

Background

2. Mendana Aligao (the appellant) lived in a de facto relationship with the victim’s mother since 2001. The appellant is therefore the victim’s de facto stepfather. The appellant started sexually abusing the victim in 2002 when she was only seven years old. The sexual abuse started with indecent assault and later turned into full sexual intercourse. In 2007, the appellant made the victim pregnant when she was only 12 years old. The appellant made her pregnant again in 2013 when she was 18 years old. The offending spanned over a period of 12 years, from 2002 to 2014.
3. Originally the appellant was charged with 5 counts of indecent assault and 39 counts of rape, a total of 44 counts. However, at the close of the Prosecution case, no evidence was offered by the prosecution on 20 of the 39 counts of rape and he was acquitted on those 20 counts.

Grounds of Appeal

4. The appellant raised 4 grounds of appeal, namely:
   • APPEAL GROUND 1 – The learned sentencing Judge erred in law and in fact in failing to specify starting points for each sentence imposed on the Appellant.
   • APPEAL GROUND 2 - That the sentencing Judge erred in law and in fact in failing to properly apply the totality principle when computing the final sentence on the Appellant.
   • APPEAL GROUND 3 - That the total sentence of 20 years imprisonment imposed by the learned sentencing Judge on the Appellant was manifestly excessive in the circumstances.
   • APPEAL GROUND 4 - That the learned sentencing Judge erred in law and in fact in imposing the sentence of 20 years in this case to be served consecutively with a sentence which was imposed on the Appellant for an earlier conviction in a different case.
5. At the commencement of the hearing of the appeal, Mr. Ifuto’o of Counsel for the Appellant informed the Court that Ground 1 would not be pursued and that only Ground 2, 3, and 4 would be pursued.

Ground 2

6. Under this ground of the appeal the appellant claims that the learned sentencing Judge failed to properly apply the totality principle when imposing the total sentence on the appellant. Having raised this ground, Counsel goes on to submit:
7. There is the requirement to stand back and look at the total sentence involves a separate and distinct step in the sentencing process, which can only be undertaken once appropriate individual sentences are determined. After that, the sentence must assess whether any adjustment is required to account for totality.
8. In addition, Counsel cites a number of cases decided by this Court and the High Court to support the appellant’s case on the issue of the totality principle in sentencing. However, we note that Counsel has repeatedly claimed in his submission that the learned sentencing Judge failed to properly apply the totality principle without specifically pointing out as to how the learned judge had failed. In other words, the ground of appeal fails to specify the alleged error on the part of the learned sentencing Judge. We will consider the issue of totality principle later. For now, we wish to reiterate that this Court, in Bade v R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023), has already frowned upon the practice by Counsel of referring to High Court decisions to support their arguments on an issue, in appeals before this Court.
9. We note that in his sentencing remarks, from pages 4 to 7 (pages 12 – 15 of the Appeal Book) the learned sentencing judge dealt with the totality principle. His Lordship supported his approach to sentencing in order to properly apply the totality principle as best as he could, by referring to a decision of Pallaras J in Regina v Hoka [2012] SBHC 152; HCSI-CRC 159 of 2011 (10 December 2012) and adopted the reasoning of Pallaras J in that case to assist him in considering sentencing for multiple offences and to “avoid the imposition of what would otherwise be a crushing sentence.”
10. In Regina v Hoka, Pallaras J stated, when considering sentencing the accused who was found guilty of multiple offences of attempted rape and indecent assault:
    • “.....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. 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”
11. His Lordship, the sentencing judge in this case also found support for the sentencing approach he took in the case of Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 680 which Pallaras J also relied upon in Regina v Hoka when considering sentencing for multiple offences. The Supreme Court of Victoria Court of Appeal stated:
    • “In general, a court should avoid imposing artificially inadequate sentence 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 transaction which ought to be recognised, though at all times avoiding the imposition of a “crushing sentence.”
12. The learned sentencing judge in this case observed and followed the guides set out in the cases referred to, setting out the starting points for the indecent assault and the rape counts. His Lordship then weaved through each of the counts and imposed the sentences which his Lordship determined to be appropriate. His Lordship then grouped the counts, although it is unclear, as submitted by Counsel for the respondent, whether they are based on the dates of offending. In doing so his Lordship was mindful of the need to achieve a total head sentence that is appropriate and just, and not crushing on the appellant.
13. The suggestion by Counsel for the appellant is that the learned sentencing judge should determine the appropriate sentence for each of the counts after determining the starting point, then uplift the sentences for aggravating factors and then decide whether they should be concurrent or consecutive bearing in mind the total head sentence. We are satisfied that the learned judge had turned his mind to the approach suggested by Counsel and we have no doubt that the strict application of the method suggested would result in a total head sentence well above that which the sentencing judge imposed in this case. See Gerea v Regina [2005] SBCA 2, CA-CRAC 004 of 2005 (25 July 2005) Where this Court upheld the method applied by the sentencing judge in having the sentences reduced so that when taken together they would not impose excessive punishment on the appellant.
14. While the approach taken by the learned sentencing judge in this case may not sit tightly with the approaches applied in other cases, we are firmly of the view that in a case such as the present one, involving a long list of offending of mixed counts of indecent assault and rape, spanning over a period of 12 years, a sentencing judge is not bound to be trammelled by principles which are likely to inhibit a sentencer in exercising his sentencing discretion in order to achieve real justice when sentencing offenders, commensurate with their level of criminality.
15. We agree with the submissions of Counsel for the respondent that the learned sentencing judge has taken into account and properly applied the totality Principle in the circumstances of this case when determining the total sentence that he imposed on the appellant in this case. His Lordship, in applying the applicable sentencing rules, adopted the practical approach of passing individual sentences, put them into groups, made them concurrent but consecutive to the appellant’s sentence which he is presently serving. Ground 2 is dismissed.

Ground 3

16. This ground complains that the sentence of 20 years imposed on the appellant is manifestly excessive. The appellant’s complaint is based on two arguments namely, that the sentencing judge was wrong to fix the starting point on the indecent assault at 5 years since by doing so, any uplift for aggravating factors would exceed the maximum penalty for the offence of indecent assault under section 141 of the Penal Code; and secondly that, in relation to the rape charges, the learned sentencing judge having, properly fixed the starting point of 8 years, failed to properly provide an uplift to take into account the aggravating features and determine the discount for the mitigating factors. The mitigating factor referred to by Counsel is the delay from the time the appellant was charged to the date he was sentenced.
17. Although it is not expressed as part of this ground of appeal, there is an air of implied suggestion that it is wrong to fix the maximum sentence of 5 years as a starting point for an offence under section 141 of the Penal Code. We do not feel obliged to deal with that suggestion under this ground of appeal. The question of whether it is wrong to fix 5 years as a starting point for the offence of indecent assault under section 141 of Penal Code which carries the maximum of 5 years imprisonment can wait another day.
18. We deal with the Appellant’s first complaint that by fixing the starting point at 5 years, any uplifting for aggravating factor would exceed the maximum sentence and thereby resulting in the sentence manifestly excessive. We simply wish to state the fact that having set the starting point at 5 years for the indecent assault charges, the learned sentencing judge went on to impose much lower sentences on each of the indecent assault counts of 3 years, on Count 1; 2 years on Count 2; 2 years on Count 3; 2 years on Count 10, and 2 years on Count 12. Had the learned sentencing judge, having fixed the starting point at 5 years and uplifted the sentence on each Count for aggravating factors, the sentences on the five counts of indecent assault would be something much more than those which he actually imposed and set out above. The argument proferred by Counsel for the appellant on this point does not hold water.
19. With regard to the 19 counts of rape, the learned sentencing judge set the starting point at 8 years and he ended up imposing lower sentence on each of the 19 counts of rape to 4 years and 3 years which are much lower than the starting point. Again, had the learned sentencing judge strictly stuck to the guides on sentencing in these types of offences, there is a high possibilities that the sentences imposed for each of the 19 counts of rape would be higher than those which he imposed. Even accounting for the fact that the learned sentencing judge would have some sentences or groupings of sentences concurrent and some cumulative, in all likelihood, the sentences would be on a higher scale, making the total head sentence much higher than 20 years.
20. What the learned sentencing judge did in this case was, although he set the starting points for both the indecent assault and the rape counts, to lower the individual sentences, put them into groupings and made them concurrent and consecutive so as to make the total sentence not overly harsh or excessive. In our view, the learned sentencing judge was entitled to make such adjustments, particularly in a case such as the present one where the learned sentencing judge was tasked with the judicial duty of considering the proper sentence to be imposed on the appellant for a long string of repeated sexual offences committed upon a victim who is his step-daughter, spanning over a period of 12 years, beginning when his step-daughter was only 7 years of age until she was 18 years old. In the course of his depraved acts of sexually abusing his step-daughter, he caused her to become pregnant twice, first when she was 13 years old and the second, when she was 18 years old. The case against the appellant has all the aggravating factors that can be correctly described as the worst case of sexual violence committed against an innocent, defenceless and a step-daughter.
21. Counsel’s contention is that 20 years imprisonment is manifestly excessive and as such a lengthy sentence of 20 years should be reserved for the worst offending. We are of the firm view that the appellant’s offending in this case is among the worst form of offending in comparison to all the other previous cases cited by Counsel in this case, both in the Court below and in this Court. In the cases referred by Counsel for the appellant, none of them came near the level of offending as in the present case. The cases cited are either where the offenders were charged with one, two or three counts of rape or two or three counts of defilement or indecent assault. The sentences ranged from 5 years to 12 years imprisonment: Regina v Tebaia [ 2017] SBCA 7; SICOA-CRAC 18 of 2016 (5 May 2027) 1count of rape, 5 years, 1 count of indecent assault, 1 year; Alu v Reginam [2015]SBCA 25; SICOA-CRAC 2 of 2014 (9 October 2015) 2 counts of rape, 9 years and 11 years, to be served concurrently; Bade v R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023) 1 count of rape, 10 years and 2 counts of domestic violence, 2 years, sentences served concurrently; Regina v Liva [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017) 2 counts of rape, 1 count of common assault, guilty pleas, sentenced to 12 years; Regina v Bonuga [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014) 3 counts of rape, 10 years each, concurrent; Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013), 1 count of indecent assault and 1 count of defilement, victim aged 3 years and 7months, sentenced to 11 years for defilement and 2 years for indecent assault.
22. Compared to the appellant’s case in which he was charged with 5 counts of indecent assault and 19 counts of rape, committed on the same victim, his step-daughter, over a period of 12 years, from 2002 to 2014 and commencing when his step-daughter was 7 years old until she was 18 years old. The appellant’s offending is very serious and can be regarded as belonging to a category of offending of high magnitude and must be regarded as such. A starting point of 16 years for such level of offending is appropriated for the appellant’s level of offending in this case.
23. As to the question of delay, we note that this court had frowned upon the delay in delivering the verdict and the sentencing in this case by the learned trial and sentencing judge. See Aligao v R [2023] SBCA 6; SICOA-CRAC 20 of 2022 (28 April 2023). The question before us in this appeal is whether the learned sentencing judge gave adequate weight to the delay when he sentenced the appellant to 20 years imprisonment. In his sentencing remarks the learned sentencing judge stated:
    • “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 principle. I do adopt the methods in sentence as discussed above and satisfy that the following sentence is appropriate for this accused.”
24. While it is not clear how much weight is given to the question of delay, we are satisfied that the learned sentencing judges did take into account the delay, as well as the aggravating factors, when sentencing the appellant. In this case, the aggravating factors far outweighed the only mitigating factor, the delay. Taking what we feel is the appropriate starting point for this appellant’s offending in this case of 16 years, adding 8 years for the aggravating factors, making it 24 years and subtracting 4 years for the delay, leaving the total sentence of 20 years. Even that sentence, for a campaign of sexual violence and abuse of a step-daughter by her step-father upon whom she looked up to for love, care and protection, is considered generous but only because the learned sentencing judge adopted a method of assessing the sentences to avoid imposing a crushing total sentence beyond the 20 years on the appellant.
25. In submitting that the sentence of 20 years is manifestly excessive, Counsel relied on the oft quoted general principle that the maximum penalty is reserved for the worst type of offending. We cannot think of any other worst form of sexual offending than that which the appellant had done to the victim, his step-daughter, in this case. We affirm the general principle alluded to by his Lordship Ward CJ in Stanley Bade v R [1988-1989] SILR 121, at 125:
    • “It is trite to point out that a man who commits, say, five offences should receive a heavier sentence than a man who commits only one of them.”
26. The appellant had committed 5 counts of indecent assault and 19 counts of rapes, a total of 24 counts. It cannot conceivably be said that a sentence of 20 years imprisonment for such a magnitude of offending is manifestly excessive. In our view, the total sentence of 20 years sentence imposed on the appellant is plainly correct and not manifestly excessive. We do not disturb it. This ground of appeal is dismissed.

Ground 4

27. This ground complains that the learned sentencing judge erred in law and in fact by making the sentence of 20 years for the present case to be served consecutively with the 12 years sentence previously imposed on the appellant and which he is presently serving. This ground raises the other aspect of the totality principle. Counsel for the appellant made reference to the case of Vlek v The Queen [1999] WASCA 1038 (29 March 1999) where the Court stated:
    • “I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discounts, and the reason for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately.”
28. The starting point is section 24 (4) of the Penal Code which provides:
    • “Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration that sentence any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof.”
29. The law, thus, permit the determinate sentence of 20 years imposed on the appellant to be served consecutively to the appellant’s existing sentence of 12 years imprisonment. The only question on this ground of appeal is whether the learned sentencing judge was right in ordering the whole of the 20 years sentence to be served consecutively to the appellant’s existing sentence of 12 years which he is presently serving.
30. We have no doubt that the learned sentencing judge was fully alive to the fact that the appellant is currently serving a 12 years prison sentence for previous conviction of similar offences which are closely connected to his present case and that having the sentence of 20 years served consecutively with that sentence would produce a total sentence of 32 years. In his sentencing remarks learned sentencing judge stated:
    • “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 suppose now for him must not over oppressive otherwise, he may die in prison.” P12 Appeal Book.
31. Later his Lordship went on to state:
    • “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.” P.15 of Appeal Book.
32. It is submitted by Counsel for the appellant that by ordering the total sentence in this case to be served consecutively to the appellant’s existing sentence is manifestly excessive and a breach of the totality principle. We have already found that the total sentence of 20 years imposed on the appellant for his present offending is not manifestly excessive. However, on the question of the aggregate of the two head sentences, we feel that there is some force in the appellant’s submission that having the total sentence of 20 years in the present case served consecutively with the end sentence of 12 years imprisonment which he is currently serving, would be excessive. The force of the appellant’s argument lies in the fact that section 24 (4) of the Penal Code requires the sentencing judge to give consideration to the alternative, that is, whether the sentence should be made concurrent with the former sentence or any part thereof.
33. We agree that the learned sentencing judge had expressed his concern that any head sentence imposed on the appellant on top of his existing sentence would be “over oppressive” on the appellant. Having done so, his Lordship failed to address the alternative of ordering or directing part of the total sentence to be served concurrently with the appellant’s existing sentence of 12 years imprisonment. Had his Lordship done so, he might have expressed his reasons as to why ordering the two head sentences would have been “over oppressive” or not.
34. In this case, we agree that ordering the two end sentences to be aggregated would be excessive. However, we do not agree that the two end sentences should be made wholly concurrent with each other. There are compelling factors why we feel that the appellant must serve part of his 20 years sentence cumulatively upon his existing sentence. The victims in both cases are sisters and are both his step-daughters. His offending in the first case spanned over a period of 6 years with 3 counts of indecent assault, 4 counts of rape and 1 count of unnatural offence. His offending in the second case spanned over a period of 12 years with 5 counts of indecent assault and 19 counts of rape. He must be held separately accountable for his crimes. It will plainly be offensive to society’s sense of justice not to recognise the appellant’s serious bouts of offending to make both head sentences wholly concurrent resulting in the serious criminality in the first offending subsumed within the second offending.
35. We accept the end result, even with the adjustment that we will make, will still be substantial. However, as was aptly put by the Court of Appeal of Tonga in Attorney General v Toki [2023] TOCA 4; AC 19 of 2022 (6 April 2023) the question:
    • “..... was not whether the first on existing sentence was so substantial that it would be unjust to add to it. The correct question was whether the aggregate sentences would be excessive for the total offending or whether concurrent sentences would not properly reflect its totality.”
36. In Toki, the existing sentence was higher than the subsequent sentence. The court in that case went on to decide that it would not be just to make the subsequent shorter sentence subsumed within the higher sentence by making the two end sentences concurrent. The Court opined that:
    • “it would be repugnant to justice not recognise [the appellant’s] serious bout of criminal offending by a discrete term of imprisonment. He must be held separately accountable for those crimes.”
37. In the present case before us, we are of the same view that to make the sentence of 20 years served concurrently with the appellant’s existing sentence of 12 years would in effect, be to have all the aggravating features and the serious criminality in that offending subsumed within the subsequent offending. There would be no justice in that, not only from the victims’ point of view but also from the wider Solomon Islands societal interest. This Court, in Pana v R and Bade v R, recognised and accepted the accuracy of the Report of the Solomon Islands Law Reform Commission published in June 2013 which found that there has been an “alarming level of sexual violence” in Solomon Islands and that there is a need to address the problem through legislation and increase penalties for such offending. The Legislature has responded and enacted the Penal Code (Amendment) (Sexual Offences) Act 2016. Under that new amended law, there is the unsung obligation on the Courts to take very serious and stern views on the prevalence of sexual abuses, sexual offences and sexual violence in every and all parts of the communities in Solomon Islands.
38. In our firm view, the protection of the vulnerable members of the community such as the victims in the two cases, as well as that of the society as a whole requires that a lengthy period of imprisonment is justified to reflect the total seriousness, gravity and criminal offending by the appellant. He must be held separately accountable for his crimes.
39. We will vary the sentence imposed by the learned sentencing judge by making 8 years of the 20 years sentence imposed on the appellant in the present case to be served concurrently with his existing sentence and the balance of 12 years to be served consecutively with his existing sentence of 12 years which he is presently serving.
40. To this extent, we vary the sentence as stated, otherwise the appeal is dismissed.

Muria P
Palmer CJ
Gavara-Nanu JA