STUDY GUIDE FOR WEEK 7 (SI students)

COJ02 Courts & their Processes

Week 7 Sentencing

Adapted from - Colvin, Criminal Law of Solomon Islands, Kiribati & Tuvalu
CHAPTER 21
Sentencing: Process, Purposes, Principles and Methodology

21.1 Sentencing in Solomon Islands is governed by several sources: the provisions setting penal liability
in the legislation creating each offence: some general provisions of the Penal Code (mainly dealing with
non-custodial options); some provisions of the Criminal Procedure Code (dealing mainly with the
sentencing powers of Magistrates Courts); and in certain important respects by common law. This
chapter outlines the general process of sentencing and the general principles and methodology that
shape sentencing in particular cases: these are matters governed mainly by common law. The chapter
focuses on sentencing for the more serious offences that commonly lead to sentences of
imprisonment.

The sentencing process and options

21.2 Following a conviction, a court must determine a sentence. This involves a separate proceeding
from that of the trial:

 new arguments are made by counsel;

 the range of matters in issue is broader than for a trial;

 allegations of fact by the prosecution must be proved if not agreed but need not necessarily
meet the test of ‘beyond reasonable doubt’;
 the rules for the admissibility of evidence are much looser.
The Criminal Procedure Code SI s 282 provides: ‘The court may, before passing sentence, receive such
evidence as it thinks fit, in order to inform itself as to the sentence proper to be passed.’
21.3 The purposes for which a sentence may be imposed are generally understood to be:
 just punishment;

 protection of the community;

 general and specific deterrence;

 rehabilitation of the offender;

 denunciation of the conduct;

 or a combination of these.

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Any sentence must be justifiable by reference to these recognised purposes. They are reflected in the
statement in Tii v R [2017] SBCA 6, [21]: ‘A sentence should be crafted to attain the goals of
punishment, deterrence and rehabilitation.’

21.4 Penal liability for each offence is determined either by the provisions creating that offence or, for
some offences outside the Penal Code, by general penalty provisions of the particular legislation. There
are a few instances of mandatory penalties: for example, murder under the Penal Code SI s 200 carries
a mandatory sentence of life imprisonment. Ordinarily, however, the prescribed penal liability is a
maximum and a judge has discretion to impose a lesser sentence. The discretionary nature of
sentencing is made clear through the formula: ‘shall be liable to imprisonment for x years (or to a fine
of y dollars)’.

21.5 The sentencing options which may be available to a court include: a term of imprisonment to be
served in custody; a term of imprisonment that is wholly or partly suspended; an order to pay a fine; a
probation or supervision order; a compensation order; and discharge without punishment. Terms of
imprisonment for multiple offences are to be served consecutively unless a court directs otherwise:
Penal Code SI s 24(4). However, in most instances, an order will be made for the sentences to be served
concurrently: see 21.??. Non-custodial sentences may be used even where an offence makes an
offender liable to a term of imprisonment: SI s 24(3) provides that a person liable to imprisonment may
be sentenced to pay a fine.

21.6 The severity of a sentence of imprisonment is a function of not only the sentence actually imposed
(the ‘head’ sentence) but also the minimum period which must be served before the offender is eligible
for release on parole. The Solomon Islands make an offender serving a life sentence eligible for parole
after 10 years, and for other sentences after 8 years: Correctional Services (Parole) Regulations 2014 s
5.

Eligibility for parole does not necessarily mean that it will be granted. Release on parole is at the
discretion of the Parole Board, which will take account of not only the circumstances of the offence but
also factors such as the offender’s behaviour in prison.

Activity – Check what sort scheme operates in Solomon Islands for a prisoner’s release on
parole or licence. Look under Correctional Services Act 2007 and Correctional Services
(Parole) Regulations 2014.

21.7 In calculating the time to be served in imprisonment, time spent in custody prior to trial is often
treated as a period of imprisonment already served. This is a matter for the discretion of the court but
substantial periods of pre-trial custody will generally be treated as time served: see Roni v R [2008]
SBCA 8.

21.8 It is sometimes said that a court must choose the least severe option which will meet the
recognised purposes of sentencing and that imprisonment is an option of last resort. Making
imprisonment an option of last resort simply means that other options must be considered and
rejected before a sentence of imprisonment is imposed. It does not mean that an offender must have a

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prior record involving other sanctions and that a first offender cannot be sentenced to imprisonment.

21.9 A sentence of imprisonment may sometimes be suspended, meaning that the sentence is served
without the offender being held in custody. In Solomon Islands, the sentence may be suspended in
whole or in part.

 The sentence must be for imprisonment for no more than two years: Penal Code SI s 44(1).
 Sentences for offences involving the use or illegal possession of weapons are excluded from
suspension: SI s 44(2).
 The case must be one in which a term of imprisonment would be appropriate in the absence of
a power of suspension: SI s 44(3). In other words, a suspended sentence must be considered as
an alternative to a term of imprisonment, not as an alternative to another non-custodial
sanction such as a fine or a probation order.

21.10 A sentence is suspended for what is often called an ‘operational period’. If the offender commits
another offence punishable by imprisonment during the time of the operational period, the court has
several alternatives under SI s 45: order the original sentence of imprisonment to be served; impose a
lesser term of imprisonment; extend the operational period; or make no order. An order to serve the
original term of imprisonment Is the default option. It is provided in SI s 45 that an order to serve the
original term must be made unless it would be ‘unjust to do so in view of all the circumstances’.

Sentencing discretion and appeals

21.11 The type and magnitude of a sentence is usually a matter for the discretion of the judge. In David
Ironimo v R (Solomons Unrep. Criminal Case No. 3 of 1998) Kabui J at 3 said:

There are no hard and fast rules about the process of sentencing. There are many relevant
factors involved. The position was nicely put by Ward CJ in Joel Likilia & Allen Kokolabu v R
[1998/89] SILR at page 149 and I quote, "Sentencing is not a process that follows exact
mathematical rules. Circumstances and people vary and it is undesirable to consider such
comparisons as more than a very imprecise guide.”

21.12 A judge therefore can, and usually will, choose a sentence below the maximum. The maximum
sentence is reserved for cases of the worst sort of their type and is rarely imposed. For example, in
Tekaei v Republic [2016] KICA 11, the Kiribati Court of Appeal said;

[11] Sentencing for manslaughter is a difficult exercise because there is such a multiplicity of
circumstances in which someone may cause the death of another by acting or omitting to do
something unlawfully. There are consequently great differences in levels of culpability.
Sentences therefore can vary considerably.

[12] … It must be borne in mind that the maximum sentence for manslaughter is life
imprisonment, although, as in other jurisdictions, that is rarely imposed for this offence.

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21.13 The discretion available to a sentencing judge does not, however, convey carte blanche for the
expression of personal opinions about an appropriate sentence. Sentencing, like the exercise of any
statutory discretion, is subject to various constraints. In R v Melano [1995] 2 Qd R 186 at 189, the
Queensland Court of Appeal said:

[T]he court’s discretion … is subject to inherent limitations; it cannot be exercised for a purpose
other than that for which it is given, or by reference to extraneous considerations, and material
considerations must be taken into account. And, of course, sentencing principles must be
applied…

The principles that guide the exercise of sentencing discretion are derived mainly from the common
law. See below, 21.??-21.??.

21.14 Both the offender and the prosecution can appeal against a sentence: see 20.xx. No statutory
criteria for allowing an appeal are specified. However, appellate courts have insisted that they should
ordinarily interfere with the exercise of the trial judge’s discretion only where the sentence is based on
an error of principle or reasoning. In Bae v State [1999] FJCA 21, it was said:
It is well established law that before this Court can disturb the sentence, the appellant must
demonstrate that the Court below fell into error in exercising its sentencing discretion. If the
trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or
affect him, if he mistakes the facts, if he does not take into account some relevant
consideration, then the Appellate Court may impose a different sentence. This error may be
apparent from the reasons for sentence or it may be inferred from the length of the sentence
itself (House v The King [1936] HCA 40; (1936) 55 CLR 499.
In Lowndes v R (1999) 195 CLR 665; 163 ALR 483, the High Court of Australia said in a joint judgment, at
672:

[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge
merely because the appellate court would have exercised its discretion in a manner different
from the manner in which the sentencing judge exercised his or her discretion. This is basic.
The discretion which the law commits to sentencing judges is of vital importance in the
administration of our system of criminal justice.

21.15 Some error of principle or reasoning might be disclosed in the sentencing judge’s stated reasons.
Alternatively, error might be inferred from the sentence itself. In order to be reviewable on the latter
ground, the sentence must be ‘manifestly inadequate’ or ‘manifestly excessive’. In Skinner v. The King
[2013] HCA 32, (1913) 16 CLR 336 at 340, the High Court of Australia said:

[A] Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion
in apportioning the sentence, and will not interfere unless it is seen that the sentence is
manifestly excessive or manifestly inadequate. If the sentence is not merely arguably
insufficient or excessive, but obviously so because, for instance, the Judge has acted on a
wrong principle, or has clearly overlooked, or undervalued, or overestimated, or
misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review

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 the sentence; but, short of such reasons, I think it will not.

Sentencing principles
21.16 A fundamental principle of sentencing is what might be termed the principle of individualisation.
This is the principle that a sentence should be appropriate for all the features of the particular case,
including not only the circumstances of and background to the offence but also the history and
prospects of the offender. The sentencing process can involve a broad-ranging inquiry. This is quite
unlike the trial process with its narrow concentration on whether the elements of the offence occurred
and whether the elements of any defence were present.

21.17 The individualisation principle is an entrenched feature of the common law of sentencing. It is
also reflected in the Fiji Sentencing and Penalties Act s 4(2), in an extensive list of factors which are to
be taken into account in sentencing an offender in that jurisdiction:

In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;
(b) current sentencing practice and the terms of any applicable guideline judgment;
(c) the nature and gravity of the particular offence;
(d) the offender’s culpability and degree of responsibility for the offence;
(e) the impact of the offence on any victim of the offence and the injury, loss or damage
resulting from the offence;
(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at
which the offender did so or indicated an intention to do so;
(g) the conduct of the offender during the trial as an indication of remorse or the lack of
remorse;
(h) any action taken by the offender to make restitution for the injury, loss or damage arising
from the offence, including his or her willingness to comply with any order for restitution that a
court may consider under this Act;
(i) the offender’s previous character;
(j) the presence of any aggravating or mitigating factor concerning the offender or any other
circumstance relevant to the commission of the offence; and
(k) any matter stated in this Act as being grounds for applying a particular sentencing option.

The various factors fall into two broad groups. Characteristics of the offence are dealt with in
paragraphs (a)-(e). Characteristics of the offender are covered by paragraphs (f)-(j).

21.18 The individualisation principle does not mean that all factors have equal weight. In general,
‘offence’ factors are more important than ‘offender’ factors. Nevertheless, the offender’s character is
an important factor. In determining the character of an offender, a court may consider various
aggravating or mitigating factors such as prior criminal record, contributions to the community and
future prospects. ‘General reputation’, however, is not a matter for consideration in most jurisdictions.
Ordinarily, ‘character’ is determined by reference to more reliable indicators.

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21.19 A sentence should be proportionate to the gravity of the offence. This is generally called the
principle of proportionality. The proportionality principle is also often called the ‘retributive’ principle in
works on the philosophy of punishment. This does not mean retribution in the sense of ‘an eye for an
eye’. The point is not that the punishment should mirror the crime but rather that the scale of
punishment should be aligned to the scale of gravity for offences. The severest punishments should be
imposed for the worst offences and so on down the scale. In Veen v R (No 2) (1988) 164 CLR 465 at 478;
[1988] HCA 14, it was said that ‘the maximum penalty prescribed for an offence is intended for cases
falling within the worst category of cases for which that penalty is prescribed’. Proportionality then is a
principle that can limit as well as justify punishment.

21.20 The proportionality principle is central to discretionary sentencing. Proportionality as a principle

of discretionary sentencing has long been recognised at common law. The principle is also reflected in
the design of penal liability for offences. Differences in the maximum penalties prescribed for offences
express the legislature’s assessment of differences in the seriousness of the offences. Compare, for
example, the different maximum penalties for assault and its various compounds.

21.21 A leading Australian judicial authority on the proportionality principle is Veen v R (No 2) (1988)
164 CLR 465; [1988] HCA 14. Veen (No 2) is particularly important because it asserted the paramountcy
of proportionality over considerations of social protection. In essence, the offence is more important
than the offender’s record or prospects. With respect to the past, it was said at CLR 477 that ‘the
antecedent criminal history of an offender is a factor which may be taken into account … but it cannot
be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity
of the instant offence’. With respect to predictions of future dangerousness, it was said that ‘a
sentence should not be extended beyond what is proportionate to the crime in order merely to extend
the period of protection of society from the risk of recidivism on the part of the offender’. It was,
however, also acknowledged that a court may have regard to ‘the protection of society as a factor in
determining a proportionate sentence’.

21.22 Proportionality may be a difficult issue when a person is to be sentenced for more than one
connected offence, such as several offences arising from the same transaction (for example, assaults on
a group of persons) or a series of offences of a similar type (for example, a spree of burglaries).
Imposing a number of separate, cumulative sentences could create a crushing burden,
disproportionate to the criminality involved. The principle of totality has been developed to avoid this
outcome. The totality principle holds that a court sentencing an offender for several connected
offences should not simply impose a number of separate, cumulative sentences. It should instead
consider what would be an appropriate aggregate sentence. In Talifai v R [2011] SBHC 16, Palmer CJ
said:

Where two or more offences have been committed but are being considered together after the
court has fixed what is the appropriate sentence for each offence, it needs to stand back and
look at the total. It needs to consider whether it is substantially over the normal sentence
appropriate to the most serious offence for which he is being sentenced. If it is, then it should
be reduced to a level that is "just and appropriate". As well, if the total sentence would amount
to a crushing penalty the court should also consider a reduction of the total.

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21.23 There are different ways in which an aggregate sentence can be determined and expressed.
Options include low cumulative sentences, higher concurrent sentences, and one sentence reflecting
the overall criminality with lower sentences for the other offences. See R v Nagy [2004] 1 Qd R 63;
[2003] QCA 175 at [23]–[35].
21.24 A principle of concurrency is a sub-principle to the principle of totality. The Penal Code SI s 24(4)
provides that terms of imprisonment for multiple offences are to be served consecutively unless a
court directs otherwise. The principle of concurrency prescribes when a court should direct otherwise.
The principle is that multiple sentences are to be served concurrently rather than consecutively in the
circumstances covered by the broader principle of totality: that is, sentences for several offences
occurring in a single transaction or sentences for a series of similar offences.
21.25 The principle of consistency or parity is a fundamental common law principle of sentencing. The
consistency principle is the principle that similar cases should be treated alike. In Wong v R (2001) 207
CLR 584; [2001] HCA 64 at [6], Gleeson CJ said:

All discretionary decision-making carries with it the probability of some degree of inconsistency. But
there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome
of discretionary decision-making can never be uniform, but it ought to depend as little as possible
upon the identity of the judge who happens to hear the case. Like cases should be treated in like
manner. The administration of criminal justice works as a system; not merely as a multiplicity of
unconnected single instances. It should be systematically fair, and that involves, amongst other
things, reasonable consistency.

Perfect consistency is unattainable in a system of discretionary sentencing. Nevertheless, it can be

increased by attention to precedents or by the use of sentencing guidelines: see 21.xx-21.xx.
21.26 Consistency between co-offenders is particularly important. A marked disparity will generate a
‘justifiable sense of grievance’: see R v Nagy [2004] 1 Qd R 63; [2003] QCA 175. To avoid this, the higher
sentence may have to be reduced on appeal, even if it is within the permissible range of options and
would be acceptable if considered in isolation: Green v R (2011) 242 CLR 462; [2011] HCA 49. In that
case French CJ, Crennan and Kiefel JJ said at [40]: ‘[I]n appeals against severity of sentence by
sentenced persons, the parity principle may support reduction of an otherwise appropriate sentence to
one which, save for the application of that principle, would be erroneously lenient.’ The same principle
was endorsed for prosecution appeals but subject to a qualification for an appeal against a sentence so
inadequate ‘that it amounts to "an affront to the administration of justice" which risks undermining
public confidence in the criminal justice system. It was said at [42]: ‘In such a case the Court would be
justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged
sentence imposed on a co-offender.’

21.27 In some instances where multiple offences are alleged, the prosecution will choose a limited
number of ‘representative counts’ for prosecution. The cases selected will usually be those on which
the evidence is strongest. A sufficient number will be charged to provide an adequate basis for
sentencing. The remaining cases, however, will not be pursued in order to save time and resources.
When this happens, a sentencing court is not entitled to impose a sentence in respect of the uncharged
offences: Mataunitoga v State [2015] FJCA 70, [24].

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Guilty pleas
21.28 Discounting sentences for guilty pleas is common in many jurisdictions. In Republic v Arawaia
[2013 KICA 11, [19], the Kiribati Court of Appeal endorsed that it called the practice in other
jurisdictions of allowing a discount on a sentence of imprisonment for guilty plea ‘in the range of 25%
to 30% if made at the earliest opportunity’. In Soni v R [2013] SBCA 6, [17], the Solomon Islands Court
of Appeal said: ‘A maximum discount of one third may well be considered appropriate in some
circumstances.’
21.29 In Siganto v R (1998) 194 CLR 656; [1998] HCA 74, [22], the High Court of Australia acknowledged
and endorsed the general practice. It was said:

[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is
usually evidence of some remorse on the part of the offender, and second, on the pragmatic
ground that the community is spared the expense of a contested trial.

The amount of any discount is determined by a number of factors including the stage when the
defendant indicated that there would be a guilty plea. An early indication of a guilty plea should attract
a bigger discount than one which is entered late in the proceedings, such as at the commencement of
the trial when the prosecution has already had to expend resources in preparation.
21.30 There are two different views of the rationale for discounting sentences for guilty pleas, leading
to potentially divergent views as to criteria for awarding discounts. These might be called ‘the
utilitarian view’ and ‘the moral view’:

 The utilitarian view. On this view, discounts are given primarily to save the time and expense of
trials. The subjective state of mind of the offender (for example, the presence or absence of
contrition) is immaterial; so, too, is whether a conviction would have been inevitable if the plea had
been not guilty. This is the view which has generally been taken by appellate courts. See also the
description of discounting as a ‘purely utilitarian’ exercise by Kirby J in Cameron v R (2002) 209 CLR
339; [2002] HCA 6.
 The moral view. On this view, discounts are to be reserved for persons who deserve them.
Discounting reflects a moral distinction between some persons making guilty pleas and other
defendants. The subjective state of mind of the accused determines whether a discount is deserved
and is therefore central to the inquiry. This view found favour with the majority of the High Court of
Australia in Cameron.

 21.31 The difference between these two approaches is perhaps clearest in the treatment of cases
where the offender pleads guilty knowing that conviction is inevitable anyway. On the moral view,
the offender may not deserve a discount. See AG v Langston [2019] KICA 9, [17}:

‘The plea of guilty was simply an acknowledgement of the inevitable having regard to the
situation when the police arrived. The early plea was entitled to minimal weight in this case.

On this approach, special leniency may be thought appropriate only for an accused who is willing to
facilitate the course of justice in more positive ways, such as by cooperating in the pursuit of co-
offenders, or who shows remorse and acceptance of responsibility. On the utilitarian view, however,
the offender can still qualify for a discount because pleading guilty has saved the State the time, effort

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and cost of conducting a trial.

21.32 In Solomon Islands, courts have referred to both utilitarian and moral considerations, without
taking a firm position in support of one or the other of the competing general approaches. For
example, see Roni v R [2008] SBCA 8:

While the principal basis on which a plea of guilty can be prayed in aid by way of mitigation [is]
as demonstrating in some cases true remorse on the part of the offender, the extent to which it
is taken into account is a matter for the court to determine and dependent on the facts of each
case. For instance, if the accused had indicated that he would be entering a guilty plea at the
committal proceedings, or well before commencement of the trial. There are other factors too
which a court has to take into account, such as the interests of society and striking a balance
when considering how much discount to consider. In some instances it may be difficult to see
how a defence can be run successfully on a not guilty plea. In such situations he cannot expect
much by way of a discount.

Sentencing methodology
21.33 Sentencing principles are not considered and applied afresh in every case. The principles underlie
patterns of decisions in which they are largely taken for granted. They are articulated mainly in difficult
cases where their application is troublesome and in cases where sentences are reversed on appeal for
departure from principle. Other methodologies are used to resolve the mass of cases.

21.34 Courts often adopt an approach to sentencing involving several stages. This is commonly
called a ‘two-stage’ approach, although several stages may be involved. The term ‘staged
sentencing’ may more accurately describe the process. At the first stage, the focus is on the
pattern of sentencing for offences comparable in type and seriousness. Sentences in previous cases
will reflect the principle of proportionality. This is sometimes called ‘the tariff’ for the offence.
Based on these precedents, a ‘starting point’ sentence for the offence is established. This reflects
the consistency principle. In Kreimanis v State [2015] FJCA 13 at [17], it was said:

There is no hard and fast rule regarding the selection of the starting point. Generally the
starting point is selected from the established tariff without regard to mitigating or aggravating
factors.

At the second stage, the focus switches from the offence to the offender. Aggravating and
mitigating factors relating to the offender are considered in order to fine-tune the sentence in light
of the individualisation principle. The exercise has a quasi-mathematical character as additions or
reductions are made to the ‘starting point’ sentences.

21.35 In Tii v R [2017] SBCA 6, the Solomon Islands Court of Appeal described the approach in this
way:

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 [22] 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.

[23] 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…

[27] There may be other matters to be taken into account in arriving at the sentence ultimately
imposed. For example, if an offender has been in pre-sentence custody, the sentencing judge
should consider making an appropriate allowance for that.

21.37 The terms ‘aggravating’ and ‘mitigating’ factors can be ambiguous in the context of sentencing
methodology:

 The terms can be used to refer to characteristics of the offence: see, for example, Tii, above
21.xx. For example, assessments of the gravity of an offender’s conduct may take account of
whether the person was a leader or a follower, how much injury was caused, and what was the
person’s state of mind and motivation. In this sense, aggravating and mitigating factors are
taken into account at the first stage when the focus is on the offence.
 The terms can also be used to refer to characteristics of the offender, such has their age, prior
record and prospects: see, for example, Kreimanis, above 21.xx. In addition, the timeliness and
circumstances of any guilty plea may also be considered. In this sense, aggravating and
mitigating factors are taken into account at the second stage when the focus is on the offender.

There is no settled practice favouring one or the other of these approaches.

21.38 An alternative approach to sentencing methodology is called ‘instinctive synthesis’. This rejects
separate stages and anything akin to mathematical calculations. Instead, the correct methodology for
sentencing is ‘instinctive synthesis’, in which a single intuitive judgment is made about how all the
relevant factors bear upon an appropriate sentence. This approach has been favoured by the High
Court of Australia: Markarian v R (2005) 215 ALR 213; [2005] HCA 25, [39]. In the Pacific, however,
staged sentencing has been preferred.

21.39 Sentencing guidelines offer another way to structure sentencing discretion. Sentencing
guidelines are general directions, usually issued by appellate courts, as to the type of sentences which
may be appropriate in particular types of cases. In most jurisdictions where they are issued, trial judges
are expected to take them into account but retain discretion over the final result in the individual case.

21.40 Sentencing guidelines can take different forms. Loose guidelines simply specify a range of
sentencing purposes and/or a range of specific factors to be taken into account, or they rank or
otherwise assign weights to the various purposes and factors. See, for example, the discussion of the
proportionality principle by the High Court of Australia in Veen (No 2) above, 21.xx, 21.xx.

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21.41 Tighter structure can be imposed by numerical guidelines which signify expectations about actual
sentences for cases with certain features, usually objective features of the offence. For example, the
Solomon Islands courts have adopted certain numerical guidelines for rape sentences which were
developed by the English Court of Appeal in R v Billiam [1986] 1 WLR 349, 351. [1986] 1 All ER 985, 987-
988:

For rape committed by an adult without any aggravating or mitigating features, a figure of five
years should be taken as the starting point in a contested case. Where a rape is committed by
two or more men acting together, or by a man who has broken into or otherwise gained access
to a place where the victim is living, or by a person who is in a position of responsibility
towards the victim, or by a person who abducts the victim and holds her captive, the starting
point should be eight years. At the top of the scale comes the defendant who has carried out
what might be described as a campaign of rape, committing the crime on a number of different
women or girls. He represents a more than ordinary danger and a sentence of 15 years or more
may be appropriate. Where the defendant's behaviour has manifested perverted or
psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to
remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

See the endorsement of the ‘five, eight and fifteen starting points’ in Soni v R [2013] SBCA 6, [10].

21.42 On the other hand, the court in Soni also cautioned against treating guidelines as binding rules. It
approved the following passage from R v Millberry [2003] 1 WLR 546, [34], [2003] 2 All ER 939, [34]:

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.

This passage highlights the ultimate supremacy of judicial discretion in sentencing matters.

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Questions

What errors of principle were made in the following hypothetical judgments?

1. Uriah Upright, a former government minister, was charged with offences relating to sexual dealings
with a child under the age of 14, the maximum penalty for which was 14 years imprisonment. The
charge concerned a girl who was 13 at the time of the offences. Upright admitted the offence when he
was questioned by the police and pleaded guilty at his trial.
Upright was sentenced to the maximum of fourteen years imprisonment. On sentencing him, the judge
said: “Sex with children is disgusting and anyone who engages in it deserves the severest sentence; your
record of public service and charitable works is irrelevant. So is your guilty plea.”

2. Simon Sleeze, an accountant, was convicted of defrauding Peter Pedant, a 70 year-old retired
university professor, of the equivalent of US$50,000 (a substantial deal of money in any currency)
through an investment scheme. Sleeze was alleged to have misappropriated the money to pay for
expensive holidays with his wife. Sleeze had pleaded not guilty.
Sleeze was sentenced to imprisonment for one year, even though the maximum penalty for the offence
was 10 years. The judge’s explanation of the sentence was that Sleeze was 55 years old and had been a
respectable member of the community; he had no prior convictions; he was married with two teenage
children; he was an active member of a church and several charitable organizations; he had apologized
to Pedant, repaid some of the lost money and promised to repay the remainder from his earnings.

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