Below is the full text of the speech High Court judge Justice STEPHEN PALLARAS delivered at the Family Violence and Youth Justice Workshop that ended recently in Honiara. In his presentation, Justice Pallaras criticised the regular travels and absences of Director of Public Prosecution Ronald Bei Talasasa, which led to a heated media exchanges between the pair:
I have been asked to speak to you about my experiences and the view from the Bench in relation to sexual offending and family violence.
The view from the Bench is appalling. Victims of sexual offences and family violence have been let down by the courts, let down by the police, let down by the prosecution and let down by the defence bar.
I want to tell you about how the judiciary have let down the victims of these crimes, what we can do about it and then see how the government, the police, the prosecution and the defence can improve their service to the community.
The Judiciary
When I first took office over two years ago, my specific task was to deal with the backlog of trials that arose out of the tension period.
The aim was to get through as many of these as possible. They were mainly murders involving names that you know well.
By running criminal trials slightly differently, I was able to finish many of those trialsquickly and succeeded in getting rid of the backlog of cases from that period.
Most of those cases were murders, senseless and vicious murders and they were both violent and shocking.
But I was in for a bigger shock. For after we had dealt with those tension trials, I was entrusted with running the criminal list, and did most of the criminal trials that were in our Court.
What came across my desk for the next couple of years was a seemingly endless stream of cases involving sexual offences.
These were the cases of rape, defilement or indecent assault of young girls and older women by their husbands, their fathers, their grandfathers, their uncles, their fellow villagers, their extended family members, and sometimes although somehow less astonishing, by strangers.
I say less astonishing, because the thought that a brother or a father could do such a thing to his own sister or daughter or niece or granddaughter or wife, is somehow harder to comprehend than if it were done by a stranger who with none of the emotional and blood ties to the victim.
No less a crime of course, but one of slightly different dimensions.But offending against women and children, particularly sexual offending, seemed to be the national sport.
I would estimatethat more than 90% of the work I have done over the last two years on the bench has involved serious sexual crime.
It has been a tragic parade of damaged women and children on the one hand and a rogue’s gallery of stupid, misogynistic, pathetic males on the other.
When this work came to my desk, one of the first things I had to do was to familiarise myself with how the Courts had dealt with them in the past. When I did that, I was shocked and surprised.
Looking at the offence of rape, all of you will know that the legislation provides for a maximum sentence of life imprisonment upon conviction for rape.
It is the harshest penalty provided by law – it is the same as the penalty provided for a conviction for murder.
Solet there be no mistake, the legislature (the people) regard rape as one of the most serious crimes of all.
When I looked at previous cases and sentences that had been passed, I could not believe what I saw.
Typical sentences passed for serious ssexual offences seemed to vary between a matter of months to about 3 years.
Some might say, OK, what’s wrong with that? And because some might say that, we have to look at the role of sentencing, what are its purposes?
What are we trying to achieve when we impose a prison term? Why do we sentence people to imprisonment at all?
Some say sending people to prison is a pointless, cruel exercise and that we only do it because we haven’t been smart enough to come up with more enlightened punishments.
That may be right. I am not going to enter that debate here. But whether it is right or not, for centuries sentencing practices have sought to achieve a number of clear aims.
These include:
· The appropriate punishment of offenders;
· The reform and rehabilitation of offenders;
· The protection of the public;
· The reduction of crime – by deterring that particular offender from doing it again – “specific deterrence”;and also by the deterrent effect a prison sentence will have on the general community by being aware that that is what might happen to them if they commit the same crime – “general deterrence”.
The mix of all of those factors varies with the particular crime and the criminal.
But what we seek to achieve in our sentencing practices include the appropriate punishment the offender and deterring others from committing the same offence.
In my respectful view, the examination of previous sentencing practice demonstrates that it has comprehensively failed to achieve either of those goals.
The number of sexual offence cases that keep streaming before meprove that to me without any doubt.
Men were prepared to take the risks involved in committing these offences because for punishment,our courts were slapping them across the face with a feather.
We were not serving the community well, victims (and this is an outrage) received no support whatsoever from government and little if any support from the prosecutors – who after all were the same people who were content to accept the inadequate sentences being passed as appropriate penalties.
To me, it was obvious that there needed to be some changes made and sincethe opportunity to do something about this dreadful situation was now before me, I determined to do so.
I could see first-hand that the size of the problem, the incidence of sexual crime, was enormous.
Every case that I did for months on end was one rape or indecent assault or incest or defilement after the other.
Why was there this deluge of offending? I believed that one of the reasons was because we as judges were failing in our duty – our duty to the law, our duty to the community and our duty to the hapless victims – by passing what I again respectfully considered to besentences which were too lenient.
It may not have been the complete answer, but what we were doing wasn’t helping.
Now when I looked at what seemed to be the typical but wholly inadequate sentence of 2 years for rape, in order to drag that up to what I believed to be a more appropriate level in a way that would be secure from intervention by the Court of Appeal, then it had to be increased gradually.
The reality is that if sentences suddenly increased from two years to 20 years, then they would not survive appeal.
In three cases of rape that came before me at different times in 2012, I imposed sentences of 9, 8 and 10 years imprisonment, significantly higher than what had up to then, been typical.
The Public Solicitor’s Office was outraged and as I expected, appeals against the length of sentence were lodged immediately.
The three appeals were successful and I was genuinely saddened.
Not because of any slight to my professional ego, but because I thought that this was a real opportunity to start the process of dragging the sentences for these offences into the real world and I had missed it.
I felt that I had let the community down.
But then I looked more closely at the judgements of the Court of Appealand saw, with some pleasure, that although the appeals against sentence had been allowed, they only reduced the sentences I had passed by two years in one case, and in the other two cases only by one year.
In their judgements, I was criticised for using what I described as “a never ending stream of rape cases coming before the courts” as a justification for increasing the penalties.
The CCA, which is a court constituted by three judges from other countries, said that I couldn’t use that as a basis because there wasno evidence to support that claim.
They said:
“He had no evidence before him of such an increase and no statistical basis for that conclusion.”
Now, I knew what I was seeing and hearing in court every day of my working life.
But the CCA said that there was no statistical evidence to support me. Andthey were perfectly correct. No statistical evidence had been led.
What I was relying on was my own local knowledge and experience every day in court because I believed it was right and proper for me to do so.
Indeed the Court said:
“Local knowledge is often used by judges concerning matters for determination but in this instance it is difficult to see, other than these three cases coming before him in rapid succession, where the knowledge can be found”.
So I was right to use local knowledge it if I had it, but according to the CCA, I didn’t have it.
But without getting too despondent, we had managed to retain sentences which were still significantly higher than what had typically been imposed in our Courts.
But suddenly the game changed. The goalposts were moved, the fog lifted, the picture focused.
Whatever simile you want to use? Because in the middle of 2013 the Solomon Islands Law Reform Commission released a Report entitled “Second Interim Report – Sexual Offences June 2013”which provided me with the missing link, the key to revolutionising the approach to sentencing in sexual offences.
It provided evidence for what everyone in Solomon Islands knew to be was the case all along.
The purpose of their Report was to:
“make the Penal Code more responsive to the modern needs of the Solomon Islands”
and in a wide ranging study found what it described as
“an alarming level of sexual violence”.
I’m not going to go through all of the findings in the Report but these were some of them:
· 55% of women interviewed aged between 15-49 years had experienced sexual violence from their partner, with the most common form 53% being forced sexual intercourse i.e. rape;
· 37% of women reported that they had been sexually abused when they were UNDER THE AGE OF 15. 53% of them said that the abuse had occurred THREE OR MORE TIMES.
Furthermore, and given what I was trying to achieve, most significantly, the LRC found that compared to other countries in the region such as Vanuatu, Papua New Guinea and Fiji sentences for sexual offences in Solomon Islands were low.
Won’t go any deeper into that Report but you can see that it filled a statistical gap that at least in the opinion of the CCA existed in the evidence.
So what conclusions are open from the facts that our sentences were too low and that there existed “an alarming level of sexual violence in Solomon Islands”?
First, it is open to conclude that the two are related – that the fact that there is a relationship between sentences lower than anyone else in our region and the alarming level of sexual violence.
The conclusion from that is that in terms of the sentencing policy that we were following, it just wasn’t working. If one of the recognised and accepted aims of a sentencing policy is to reduce crime, then it was failing.
If another one of the recognised and accepted aims of a good sentencing policy, is to deter people from committing these offences, then sorry, that too was failing.
Here in this Report then was the theoretical and statistical foundation to support the approach that I was trying.
You will understand that while the facts relayed in the Report were tragic, I was delighted to have it and I looked forward to adopting some of its findings the next time I had to sentence a convicted sex offender.
I didn’t have to wait very long.
My next case was a case of defilement. The victim was 3 years of age. The accused was charged both with defilement and indecent assault.
He was convicted of both and I sentenced him to 2 years for the indecent assault and 14 years for defilement to be served concurrently, making the total of 14 years.
I deducted 2 ½ years from the total for a very late guilty plea, leaving a sentence of 11 ½ years to serve.
In passing sentence I included in my sentencing remarks, several references to the LRC Report so that the CCA then had before it some of the material which they said was missing from the earlier judgments.
The CCA considered my sentence and my reasons and again, I held my breath.
The grounds of appeal essentially were that the sentence was manifestly excessive.
In Solomon Islands defilement cases seemed to have been treated even more leniently than rape cases.
There was no good reason for this, in fact I took the view, this was a worse offence than the rape of an adult.
Because I thought that, the starting point for sentencing for such an offence should be higher than that for rape and the starting point that I used was 10 years imprisonment.
When I chose 10 years as a starting point I knew that it would be appealed and I knew that the CCA would have something to say about it.
It was appealed. The CCA did have something to say about it.
And unlike on the earlier occasion when they said that I had no evidence to support my approach, this time what they said was fantastic.
For this time they said 10 years as a starting point was fine and that the overall sentence of 14 years with 11 ½ to serve was also fine.
They in fact even criticised me (mildly) for taking too much off for the guilty plea.
When I read and re-read that judgement I could physically feel that things had started to change.
Particularly when they said this:
“We note from the previous sentences referred to by counsel that the Courts in Solomon Islands have almost invariably passed lower sentences for defilement than for rape. There is no logical reason why this should be the case. The fact that the victim is a child below the age of consent and sometimes so young she could not do anything to prevent the attack makes many such cases deserving of a more severe penalty than a rape case with similar circumstances save for the young age of the complainant”.
What is significant about that decision is that it significantly lifts the bar directly for sentences for defilement against children and indirectly for sentences for rape.
It seems, if one can be optimistic, that we had in fact turned the boat around.
But judges and the sentences they pass are really the last stop for the criminal justice train.
Before it gets to us the train stops at the police station, the prosecutor’s station and the Public Solicitor’s station.
And every single one of those participants also needs to lift their game.
The level and standard of police investigation varies from poor to abysmal.
Whether this reflects an ingrained attitude towards female victims by predominantly male police officers is hard to say.
Whether it reflects the perverse influence that is open under the wantok system, I don’t know.
But there is much to be done not only in the quality of the investigation process, but in assisting victims to cope with the criminal and trial process.
Proper Victim Impact Statements have to be taken – there seems to be little knowledge as to how to do that.
Full witness statementshave to be patiently taken from victims – again, practices in this area are woeful with police officers going back to the same complainant several times before they extract everything she has to say.
And most times they still can’t do it. Those poor investigative techniques simply add enormous stress to the victim in these cases and leave her open to criticism during the trial that she forgot to say something to the police officer – when in fact had she been questioned appropriately, the evidence would have emerged naturally.
And because she is criticised at trial, her credibility is affected and in turn the chances of a court relying on her evidence to convict are greatly reduced.
It is not an exaggeration to say that persons accused of rape have been acquitted because of the inadequacy not only of the investigation overall, but because of the inadequacy of the specific methods of obtaining the evidence from the victim.
The government’s role in this area is crucial and so far its performance has been disgraceful.
They speak fine words when the public glare is upon them but when you look around for the shelters for women and children seeking refuge from a violent man, or for the medical support, or for the psychiatric or psychological counselling to help the victims cope with the overwhelming trauma that they have been subjected to, the government turns its back.
They have been and still are asleep at the wheel. VICTIM SUPPORT IN THIS COUNTRY DOESN’T EXIST. It is something that the government simply doesn’t understand.
Tragically, it may take the rape of a daughter or wife of someone in government before the Attorney General, or the Minister for Justice or the Prime Minister do the decent thing and do what is expected of them.
Every one of them have been sitting on their hands for far too long.
But the criminal justice train moves on. Once the train leaves the empty government offices and leaves the under-resourced and under-trained police station, the next stop is at the Office of the Director of Public Prosecutions.
And this is a very important stop. The first and foremost thing that must be said is that this country needs and deserves to have a full time Director of Public Prosecutions.
The effect on the criminal justice system of his regular and frequent absences for sporting tours or conferences, is both disruptive to the whole community and ruinous of attempts to expedite criminal trials.
Not only are cases interrupted mid-way through to accommodate his travelling diary – which by the way keeps everyone else waiting including the accused persons, witnesses, lawyers and the rest of the community who are waiting for their trials to start – but what is worse, no prosecutorial decisions of any consequence can be made until he re-enters the jurisdiction.
This is because his prosecutors are not trusted with the delegated authority to make those decisions, so every other case, even those in which the Director is not personally involved, has to wait. We all just put down our pens and have a nap.
What is wrong with the government that they tolerate this? Why do they think it acceptable to have a part time Director?
Is that how little a properly functioning criminal justice system means to the government?
Are logs and tuna and betel nuts more important than the citizens of this country? Or is it just that those who are hurting most are just women and children and really, they don’t count so much.
For the victims of rape, defilement, indecent assault and other sexual offences, to be treated with such contempt is selfish, insensitive and must stop.
Government must demand that this country has the full time services of a Director of Public Prosecutions – it owes its citizens no less.
The time saved could be well spent in the proper training of the young prosecutors in the Office of the Director of Public Prosecutions, training which is so desperately needed in the very basics of properly presenting a case of sexual offending.
The same comments in respect of a lack of effective training can be made about the Public Solicitor’s Office.
I am not one who believes that every woman or child who ever makes a complaint in relation to sexual assault is necessarily telling the truth.
Indeed I have had the experience where a woman who accused a man of raping her told me before lunch in great detail how the accused had brutally overpowered her and raped her. We then adjourned for the lunch break.
I don’t know what she had for lunch but when she came back into court after lunch she said that she had thought it all over and then asked me IF I wanted her to tell me the truth?
I said yes, that would be nice. She then proceeded to tell me that the accused hadn’t raped her at all.
She fancied the accused and wanted to have sex with him and did so willingly. Why she did that doesn’t matter here, but I referred that case to the Director of Public Prosecutions for him to consider the laying of perjury charges against her. I heard nothing from him.
But the point is that defence counsel ought to have the skills to discover a lying witness, not only for the Court’s benefit but for the sake of the poor man in the dock who is falsely accused.
They don’t have those skills and because they don’t the whole system suffers accordingly.
So thank you for coming with me on this tour around our criminal justice system.
The view from the Bench is that all of us involved in the criminal justice system have a great deal more work to do.
However recent decisions of the CCA have given me some guarded optimism that we may, at last, be heading in the right direction.
