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R v Kaulafa [2025] SBCA 7; SICOA-CRAC 52 of 2024 (11 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal by the Director of Public Prosecution (“the DPP” hereon) against the sentences imposed on the Respondent by the primary judge on 9 August 2024, for two counts of persistent sexual abuse of two girls under the age of 13 years viz; 11 years old respectively, between 1 and 28 February 2023, contrary to ss. 142 (2) and 139 (2) of the Penal Code (Cap.26).
2. The abuse of the two victims by the Respondent involved touching the victims’ vaginas, breasts, bottoms, showing them phonographic video on his mobile phone, letting them hold his penis and making comments about their breasts and vaginas.
3. The Respondent was sentenced to 4 years imprisonment on each count but the sentence for the second count was ordered to be served concurrently with the sentence for the first count. Thus, effectively the Respondent was sentenced to serving only 4 years imprisonment for the two counts. The court also ordered that the time spent in custody be deducted from the 4-year sentence.

Background facts

4. At the time of offending the Respondent was aged 53 years old. Thus, the age gap between him and the two victims was 42 years. To one of the victims, the Respondent was an uncle; to the other, he was an uncle of her father. Thus, the Respondent was a very close relative to the victims, therefore he was in the position of trust and dependence to the two victims. The Respondent took advantage of his close relationship with the victims and the victim’s vulnerability as 11-year-olds to commit the offences.
5. At the time of offending, the Respondent was married. He was a subsistent farmer and an ordinary villager. The offences were committed within family settings. The offending occurred over a period of one month, but were repeated and were committed at different times.

Decision of the primary court

6. The learned primary judge noted the seriousness of offending given the aggravating features of the case, which were; (i) the tender age of the victims, (ii) very big age gap between Respondent and the victims, (iii) the vulnerability of the victims because of the positions of trust and dependence the Respondent had over the victims, which he breached, (iv) persistent abuse of the victims over a period of time, and (v) the emotional trauma and psychological scars they suffered which they will carry for the rest of their lives. His Lordship also noted the mitigating features of the case, which were; (i) the Respondent was a first-time offender, (ii) he pleaded guilty to all the charges, thus sparing the victims from having to go through the emotional trauma of telling their stories in court of how they were abused and reliving the physical and psychological harm and guilt they experienced, (iii) they were also spared from having to go through the rigor of a criminal trial, (v) he expressed remorse.
7. In balancing all these factors, the learned primary judge said this: -

“Final analysis

The sentences I will impose is (sic.) this case will reflect the circumstances surrounding the committal of those allegations. The two very young tender age girls (11 years each) are relatives of the defendant. The defendant had gone out of his ways to indecently abuse and assault the girls. As an elder uncle, he should love and respected (sic.) the girls, instead defiled all customary law and relationship as well as the law of the State.
Nevertheless, I have accepted the defendant’s plead (sic.) guilty at first opportunity and the fact (sic.) he has no criminal previous convictions.
This sentence will reflect the gravity of the offence to emphasize the public disapproval, to serve as a warning to the defendant and others and to punish the (sic.) him. Lastly to protect the young girls within the communities.
I therefore conclude that after considering the mitigating facts, (sic.) I reduce one year from the head sentence. The sentence to serve is 4 years.
From count 1, a sentence of 4 years is imposing (sic.) on all allegations. For count 2 another 4 years is impose (sic.). Both sentences to run concurrent, total is 4 years.

Orders:

(a) 4 years imprisonment for count 1 to run concurrent to 4 years imposed in (sic.) Count 2.
(b) Total sentence to serve is 4 years.
(c) Number of months remanded in custody be deducted from 4 years”.

8. In deciding the sentence, the learned primary judge referred to R v. Ba’ai [2023] SBCA 9; SICOA-CRAC 7 of 2022 (28 April 2023), in which this court quashed two years suspended term of imprisonment and imposed a three years term of imprisonment. That case involved the prisoner touching the victim’s clitoris with his finger. The victim was 12 years old. There was a big age gap between the offender and the victim. The prisoner paid $400.00 in cash and shell money worth $1,300.00. The prisoner pleaded guilty. His Lordship also referred to Pana v. Regina [2013] SBCA 19. In that case, this court suggested that the fact that a victim was below the consenting age, should attract the starting point of eight years whether or not the conviction was for persistent abuse.

Grounds of appeal

9. The Appellant has raised two grounds of appeal, which are as follows: -
   • (i) The primary judge erred in law by failing to consider and apply the totality principle and therefore erroneously imposed concurrent sentences.
   • (ii) The sentences were manifestly inadequate.

Submissions

By the Appellant

10. Mr Zoze of counsel for the Appellant submitted that while the learned primary judge correctly discussed and applied the general principles of sentencing, it was submitted that the primary judge erred in not applying the totality principle when exercising his sentencing discretion. It was submitted that the learned primary judge erred in imposing concurrent sentences for the two counts of persistent abuse of the two victims which were committed at different times. Thus, it was further submitted that, given the facts and circumstances of the case, a cumulative sentence of seven to nine years would be appropriate.

By the Respondent

11. Mr Bobby Harunari of counsel for the Respondent, told the Court that they conceded that the judge erred in the exercise of his sentencing discretion in not applying the totality principle. He submitted that a cumulative sentence of six years would be appropriate.

Consideration

12. Given the concession by the Respondent that the primary judge erred in not applying the totality principle, there is no dispute that the second ground of appeal must succeed and be upheld viz; the sentence was manifestly inadequate. It follows that the only question for this Court to ask and consider is what is the appropriate sentence for the Respondent? In deciding this question, the Court must be guided among others, by the established totality principles which are well settled in this jurisdiction. It suffices for us to refer to a few of the cases where the totality principles were uttered by this Court. In Aliago v. R [2024] SBCA 15; SICOA-CRAC 32 if 2023 (14 October 2024), this Court relevantly said: -
    • “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.”
    • 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””. (Our underlining.
13. Then in Angitalo v R [2005] SBCA 5, this Court summarised the totality principle this way: -
    • "Where the arithmetical total of consecutive sentences results in an effective sentence that is inappropriately harsh, the sentencing court can properly make the necessary adjustment by reducing one or more of the accumulated sentences so that the total term is not excessive. ...
    • The fundamental underlying principle is that a sentence should reflect the true criminality involved in the offences, ... The fundamental rule is the court should ensure that both the end result does not exceed what is the appropriate punishment for the offender’s criminal conduct, considered as a whole, and that the result adequately punishes the offender’s criminal conduct for the crimes actually committed." (Our underlining).
14. In Neneke v. R (2024) SBCA 24; SICOA-CRAC 41 of 2023 (14 October 2024), this Court in addressing the totality principle said this: -
    • “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)”. (Our underlining).
15. The Court then said this: -
    • “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)”.
16. Having regard to these principles, our tasks is not just limited to increasing the sentence. The sentence imposed must also address among others, the specific and general deterrence and rehabilitation of the Respondent. The sentence imposed must also reflect the criminality of the offending.
17. There were two victims who were abused over a period of one month but at different times. The abuse was persistent, the seriousness and the gravity of the offences must therefore be reflected in the sentence imposed. The offending of sexual nature has become very prevalent, especially against the children of tender ages. Thus, this Court as the highest court of the land has the duty to impose punishments which have strong elements of deterrence, so that it gives a strong and clear message to the likeminded people that the courts take a very serious view about such offending and those who commit such crimes will be met with equally strong punishments. It is therefore in the interest of the communities at large for the courts to impose strong and increased deterrent sentences for this type of offending. In this case, given the overall facts and circumstance of the case, and considering the mitigating features of the case, which we consider are far outweighed by the criminality and the gravity of the offending, we consider that offending on each victim should attract sentence of five years. The sentence should then be made cumulative, thus resulting in the cumulative sentence of ten years. Applying the totality principle as stated in Neneke, we deduct one year. Thus, the effective term of imprisonment the Respondent must serve is nine years. In imposing this sentence, we bear in mind the fact that the custody period has been or will be deducted from the sentence imposed.
18. The Orders of the Court are as follows: -
    • (i) The appeal is allowed
    • (ii) The sentence imposed by the court below on counts 1 and 2 are quashed.
    • (iii) The Respondent is sentenced to five (5) years on each count, thus the cumulative sentence of ten (10) years imprisonment.
    • (iv) One year is deducted from total 10 years imprisonment
    • (v) Thus, the effective term of imprisonment the Respondent must serve is 9 years.
19. Orders accordingly.

Muria (P)
Gavara-Nanu (JA)
Lawry (JA)