Observations and experiences in delivering Justice in Solomon Islands

Speech by Justice Stephen Pallaras QC at the Regional Human Rights and the Law consultation, Auckland, July 2015

I have been asked to speak to you about my observations and experiences and the view from the Bench in relation to sexual offending and family violence. In particular, my experiences in raising the bar for sentencing in sexual offences to reflect a proportionate response to violence, and, in explaining the law to communities.

The view from the Bench was 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 in 2012, 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 and by using particular strategies and techniques, I was able to finish many of those trials quickly 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 High 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 estimate that more than 90% of the work I did over my last two years on the bench involved serious sexual crime.

It was 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. So let there be no mistake, the legislature (the people) regard rape as one of the most serious crimes of all.

When I looked at the previous cases and sentences that had been passed, I could not believe what I saw. Typical sentences passed for serious sexual 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 need to look at the goals and purposes of sentencing, and see whether those goals are being met.

What do we hope 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 debate that 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, making the punishment fit the crime;
  •   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”.
  •          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 – not a one off event but a way of life!

The mix of all those factors varies with the particular crime and the criminal.

But what we seek to achieve in our sentencing practices include (1.) the appropriate punishment for the particular offender and (2.) deterring others from committing the same offence.

It was my view, having examined the previous sentencing practices adopted by the Court in S.I. when dealing with offences of a sexual nature, that those practices had comprehensively, totally, thoroughly and unquestionably failed to achieve either of those goals.

The number of sexual offence cases that kept streaming before me proved 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 absolutely no support whatsoever from government and little if any support from the prosecutors. And it was the prosecutors who by their failure or their refusal to appeal the soft and inadequate sentences being passed who were content to accept them as appropriate penalties.

By doing this, they failed the community, they disrespected the victims and, together with the court, they perpetuated an attitude in the community that relegated women and children to the status of sexual playthings for violent and abusive men.

To me, it was obvious that there was real and urgent need for change and here I was, having being out into the position of enormous authority and so given the opportunity (as all of you have) to do something about this dreadful situation.

I had two choices. I could just shake my head and say how terrible it all is and HOPE that something would be done OR, I could try at least to do something about it, try at least to do some good and try at least to make a difference. I determined to try.

I could see first-hand every day in my court 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? What was contributing to this culture of violent sexual offending, of treating women like possessions, like slaves?

Because of the three things I believe stops a country from progressing, from becoming great (and please allow me to digress a little and express a personal view that you may or may not agree with), is the way we treat each other as human beings.

The way we treat our women, our children, our sick and our old people. How we treat each other in our countries is as big and as important an issue as any other issue you can name. Because the measure of us as a community, as a nation, is best seen by what we do. Do to each other.

What have you done about solving these great social issues, what has your community done? I didn’t say what have you said or thought, but what have you done? If you’ve done nothing then you are part of the problem, you are one of those who accept it. It is not just the rapists and the perverts and the child molesters who are the problem, it is every single one of you who has done nothing to change it.

But to return, when I was trying to analyse what could be contributing to this decay in social morality, I saw that one of the reasons was because we a 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 be sentences which were too lenient. Now that may not have been the complete answer, but what we were doing wasn’t helping.

And when I looked at what seemed to be the typical but wholly inadequate sentence of 2 years for rape, for an offence carrying a maximum of life imprisonment, I made the decision to try in my judgements and sentences to drag that up to what I believed to be a more appropriate level.

But it had to be done in a way that would be secure from intervention by the Court of Appeal, and so, if I was to have any success, then it had to be increased gradually.

We all know that the reality is that if sentences suddenly increase 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 to 8,9 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.

I was told before reading the judgements that the three appeals had been upheld and I was genuinely saddened.

Not because of any sight 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 really felt that I had let the community down.

But then I looked more closely at the judgement of the Court of Appeal and saw, with some pleasure, that although the appeals against sentence had been allowed, they only reduced sentences I had passed by two years in one case, and in the other two cases only by one year each.

In the judgements, I was criticised for using what I had said was “a never ending stream of rape cases coming before the courts” as a justification for increasing the penalties.

The CCA in S.I. which as you probably know is a court constituted by three judges from other countries said that I couldn’t use that as basis because there was no 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. And they 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 did say:

“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 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 that were significantly higher than what had typically been imposed in our Courts.

Then suddenly the game changed. The goalposts were moved, the log 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 here are some of them:

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 the Report but you can see that it filled the statistical gap that the CCA believed existed in the evidence.

So what conclusions were open from the facts that there existed “an alarming level of sexual violence in Solomon Islands” and that our sentences were too low?

First, it is open to conclude isn’t it, that the two are related – 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 obvious – 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 reduce crime, then it was failing.

Second, 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 then in this Report 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 truly tragic, I was delighted to have it and I looked forward to adapting some if 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 a 3 years of age. The accused was charged both with defilement and indecent assault.

In Solomon Islands defilement cases seemed to have been treated even more leniently than rape cases. There was no good reason for this and in fact I took the view that defilement was a worse offence than the rape of an assault.

Because of that, 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.

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 did have before it some of the material which they said was missing from my earlier judgments.

The sentence was appealed as being manifestly excessive, the CCA considered my sentence and my reasons and again, I held my breath.

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 the 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 with similar circumstances save the young age of the complainant”.

What is significant about that decision is that it substantially 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. That we had in fact made a difference.

But a difference to whom? We had certainly made a difference to those who were convicted and given higher sentences. We may have made a difference to members of the prisoner’s family – particularly the male members – in terms of general deterrence. We may have given some respect, some credibility, some validation to the victim and perhaps to her family.

But would it have any effect on the general S.I. community. Perhaps a little but not much. How would they know what had happened in a court house in Honiara on Gualdalcanal if they were living on a remote island in the Western Districts, or in the north or the south. The chances of them hearing about it was pretty small and so the purpose of the sentencing increase, to deter others, to prevent crime, to create an understanding of the appropriate punishment for these offences, would be lost.

Once my sentences were confirmed by the CCA, I went to the Chief Justice rocky Palmer, with an idea. The idea was to spread the word amongst the islands and the villages throughout the S.I. that a new broom was in town, that the courts would no longer give sexual offenders a hit on the head with a taro root, but would impose significant and appropriate punishment for sexual offenders.

The idea was to form a small team, perhaps my Associate, an interpreter and a police officer for security, to maybe once a month, visit outlying communities to speak to them about sex offences and how they were now to be treated by the courts.

The CJ asked me who was going to pay for it. That was a question that, not being very interested in nuts and bolts but preferring to see the big picture, I haven’t given much thought to. So he said, if you can get the money together, he would approve it.

So, I wrote to the government department responsible for women’s development, I wrote to the Australian High Commission, I wrote to S.I. Police, to RAMSI and to various women’s groups, to invite them all to a meeting with me to discuss the project. I wrote to everyone except father xmas.

What I got from the first meeting was enormous outpouring of support, lots of slaps on the back and congratulatory handshakes. We had, at that first meeting established in theory support from significant organisations.

As the meeting was called in order to obtain funding to cover the costs of the outreach, I asked them to come to the next meeting with the answers to two questions. First, were they able to assist financially or with other resources? Second, if so, how much could they provide.

To cut a long and very disheartening story short, no government department would commit to anything until I had prepared and presented a detailed “Concept Paper” accompanied by a fully costed financial impact statement stating how much would be needed.

The HC and RAMSI wanted me to be attached to their programme of speaking to people about various subjects and were not taken on me having anything to say that might cut across what they were doing.

Women’s groups could provide no assistance but would be prepared to come along if someone sponsored them.

When for the next meeting, four out of six participants suddenly cancelled at the last minute because of pressing issues, I knew that I should have called father xmas.

All I wanted to do was meet people, talk to them, explain what was happening and inform them. Even if I knew how to do a fully costed concept note, I was not going to play government’s game of let’s complicate the simple idea with miles of red tape.

So I spoke to the CJ and told him what had happened. I also said that I didn’t need an army to come with me and that only cost involved would be in getting to the places.

I had a meeting with my P.A., my Associate and my interpreter and we agreed on a strategy to cover all of Gualdalcanal first and then see what island we could cover.

As a result they helped me to arrange speaking engagements at 4 or 5 very large church groups, several schools where I spoke to students in senior years and a large number of civic and community groups. Later, with the help of RAMSI providing helicopter rides, we spoke to several groups in Malaita and Gizo (before an audience of 2,500 women), and had my time in S.I. not run out, I think I would be still doing that work. It was the most satisfying and rewarding work that I have done in over 40 years of a career in law.

Everyone who’s ever taken a shower has had an idea. It’s the person who gets out of the shower, dries off and does something about it who makes a difference.

The great and noble purpose and opportunity that we have all been given by our profession is to make a difference. I hope that when that opportunity calls to you in your countries, you won’t spend too much time in the shower.

SPC’s Regional Rights Resource Team receives core funding from the Australian Government and additional project support from the Kingdom of the Netherlands, Pacific Leadership Programme (PLP), European Union (EU) and the German Development Bank (KfW).