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State v Lepi (No 3) [2004] PGNC 38; N2734 (25 November 2004)

N2734

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 942 of 2001

THE STATE

-V-

MOKI LEPI (No.3)

WAIGANI: KANDAKASI, J.
2004: 18th and 25th November

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Remittal by Supreme Court for administration of allocutus and re-sentencing – Relevant guidelines devised and applied - Court under duty to reconsider sentence –Court may increase or decrease earlier sentence - If nothing significant raised in allocutus that warrants reexamination of earlier sentence Court may reconfirm earlier sentence.

CRIMINAL LAW — Sentence on remittal from Supreme Court for administration of allocutus and re-sentencing – Relevant guidelines devised and applied Attempted unlawful carnal knowledge of girl under 10 years and indecently dealing with girl under 16 years old – No good basis provided to seriously reconsider and reduce sentence previously imposed except expression of remorse – Expression of remorse following conviction after trial means nothing – Since previous sentence Parliament increased penalty - Prior sentence of 8 years and 3 years respectively re-imposed less time already spent in custody.

Cases cited:
John Elipa Kalabus v. The State [1988] PNGLR 193.
Rudy Yekat v. The State (22/11/01) SC66.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v Tumu Luna (20/05/02) N2205.
The State v Maria Paul (18/04/03) N2434.
The State v Donald Angavia & 2 Ors. (No 2) (29/04/04) N2590.
The State v. Lucas Yovura (29/04/03) N2366.
The State v. Pablito P Miguel (06/12/02) N2338.
The State v. Henry Mapi (03/07/98) N1936.
Acting Public Prosecutor v. Don Hale 27/08/98) SC564.
The State v. Irox Winston (21/09/00) N2304.
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730.
The State v. Peter Lare (20/05/04) N2557.

Counsel:

M. Olewale for the State.
Gavara-Nanu for the Prisoner.

25th November 2004

KANDAKASI J: On 22nd July 2002, this Court imposed a cumulative sentence of 11 years against you for attempted unlawful carnal knowledge of a girl under 10 years and indecently dealing with a girl under 16 years. That followed your conviction on 30th April 2002 after a trial.

You appealed against both your conviction and sentence on 29th July 2002. The Supreme Court heard your appeal on 27th February 2004 and decided to confirm your conviction and uphold your appeal against sentence on the basis that this Supreme Court did not administer you your allocatus. Consequently, the Court ordered the matter back to this Court for a re-administration of your allocutus and for re-sentencing. Hence, you succeeded on your appeal against sentence purely on a technical ground. The decision of the Supreme Court did not therefore go into the merits or demerits of the decision on sentence.

The matter eventually returned to me early this month. However, I was not able to deal with it until the 18th of this instant. When that happened both counsels did not outline for the Court the relevant guideline or principles governing re-sentencing by the National Court on remittance from the Supreme Court following a successful appeal. Additionally, they did not draw the Court’s attention to any authority on point that could be of assistance to the Court on this aspect. In the absence of any authority to the contrary, I am of the view that, the Court reconsidering sentence in such a case should consider without limiting the following matters before arriving at a final decision on sentence:

1. Any guidelines or suggestions of the Supreme Court accompanying the remittance.
   
2. The usual sentencing guidelines for sentencing in the particular kind of offence under consideration but within the guidelines or suggestions of the Supreme Court.
   
3. Subject to any guidelines, directions or suggestions of the Supreme Court, the factors prevailing at the time of the earlier sentence.
   
4. Unless the prisoner shows good cause in terms of the factors for and against him or her, warranting a decision other than the one previously arrived at, the Court should be careful not to readily and substantial differ from its earlier sentence.
   

I consider these considerations important in the interest of maintaining consistencies in the sentences and approach to sentencing generally. Further, except for the points or issues successfully raised on appeal and on the basis of which the Supreme Court remits the matter, the National Court would otherwise be functus officio on all other issues. This is important in the interest of maintaining finality in litigation. Unless specifically ordered to do so by the Supreme Court for whatever reason, it would thus be inappropriate to reconsider the whole of the sentence on factors that might not have existed at the time of the earlier sentence but brought into existence purely to facilitate a possible reduction in sentence already imposed. Anything and everything happening after the imposition of the earlier sentence would not have formed a relevant consideration at the time of the original sentence and could not have possibly formed a ground of appeal resulting in the remittance. Hence, if the Court were to be at freedom to take into account events after the earlier sentence, therein lies the risk of opening up an otherwise properly completed matter, and thereby water down the need to maintain finality in litigation.

With the foregoing in mind, I now turn to your case. Both counsels submit correctly, in my view, that, this Court should reconsider the sentence it earlier imposed on 22nd July 2002, (now numbered and in circulation as The State v Moki Lepi (No.2) (22/07/02) N2278 but only in the context of the matters you have said in your allocutus. Otherwise, they submit that, all the factors the Court took into account both for and against you in arriving at its earlier decision remain current and valid. In view of that, they adopt and maintain their earlier respective submissions.

I consider these submissions are in order and I accept them. Before arriving at the earlier sentence of 8 years and 3 years respective for the two charges of attempted unlawful carnal knowledge of a girl under the age of 10 years and indecently dealing with a girl under the age of 16 years, I did take into account all the factors for and against you. There is no submission by you through your counsel as to the Court not taking into account a factor in your favour or considering an irrelevant factor before arriving at that decision. The only change there is, is the fact of your response or attitude to the commission of the offences.

Before arriving at the earlier sentence, this Court noted at page 3 of its judgment that you did not express any remorse. This is carried over to page 6 of the judgment as a factor against you. Your lawyer submits and I accept that, because you were not given the right to address the Court before your sentence, you were not given the opportunity to express directly to the Court in your own words your remorse. That resulted in this Court proceeding on the basis amongst others that you were not remorseful for what you had done.

On remittance, from the Supreme Court, this Court gave you that opportunity on 18th November 2004. You did not say much save only to refer to a letter you wrote to the Court on 25th September 2004. In that letter, you say in relevant parts that, you have rededicated your life to God and that you confess and repent of all your unrighteousness and quote some Bible texts. Proceeding on that basis, you say you have apologized to God, His Son Jesus Christ and the Holy Spirit. You extend your apologies to the Court and the government of the day, the victim and her relatives as well as your own for causing separations and disunity to them by the offences you committed. Further, you apologized to your church and the members of the public.

After having so apologized, you seek the mercy of the Court and ask for a suspended sentence or a good behaviour bond, or a reduction of the sentence or transfer you to the Bundaira CIS to serve your sentence there. The later request is for you to be closer to your family, which you say is scattered following your incarceration. You plead your family’s welfare and you being a first time offender in support of this submission.

This Court is duty bound to follow the law when considering sentence in all cases. I must therefore, turn to the law for guidance on the issues you have raised. I start that process with the issue of expression of remorse or you saying sorry or apologizing to the victim and her family and her relatives.

What the Supreme Court said in John Elipa Kalabus v. The State [1988] PNGLR 193 at page 197, per Kidu C.J is directly on point and instructive. There, His Honour said:

"The plea of guilty was in my view properly rejected as a mitigating factor. There was no remorse or contrition shown in the appellant’s confessional statement dated 7 October 1986, a statement made two days after he committed the offence. Up to the time he pleaded guilty there was no sign of remorse or contrition. It was his lawyer who said in his address on mitigation that he was remorseful.

Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one."

(Emphasis supplied)

Recent judgments of the Supreme Court as in Rudy Yekat v. The State (22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/01) SCR 15 of 2000, maintain this line of authorities. A large number of National Court judgments have followed the Supreme Court judgments too. A recent example of this is the judgment of Jalina J., in The State v Tumu Luna (20/05/02) N2205 where His Honour said:

"In fact, to my mind, expression of remorse after conviction following a trial loses its significance. It does not, in my view, indicate true remorse and contrition; not when someone tries to hide his involvement but after he is found guilty, he says sorry for what he had done. If an accused person pleads guilty however, and then says "sorry," his expression of "sorrow" would appear to me to be from deep within his heart."

Another recent judgment of the National Court on point, which directly refers to the judgment of the Supreme Court in John Elipa Kalabus v. The State (supra) is the judgment of Gavara-Nanu J., in The State v Maria Paul (18/04/03) N2434.

On my part, I have followed and applied these principles in a large number of cases. An example of that is my judgment in The State v Donald Angavia & 2 Ors. (No 2) (29/04/04) N2590, where I said:

"The next related aspect is you saying sorry to the Court and others, including, the victim and her relatives. However, there is no evidence that you paid compensation or offered anything tangible to the victim to show your remorse. There is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (...24/05/02) N2244; Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v. Kevin Anis and Martin Ningigan (...07/04/03) N2360. On the strength of these authorities, I find that your merely saying sorry means nothing. Accordingly, it is not a factor in your favour."

These authorities make it very clear that in order for an expression of remorse to operate in favour of a prisoner; his expression of remorse must be genuine. An expression of remorse merely by words is not enough but one accompanied by something tangible, such as payment of compensation would amount to a genuine expression of remorse. Also in order for it to be genuine and to operate in a prisoner’s favour, that must come at the earliest and well before trial. An earlier guilty plea accompanied by an expression of remorse might amount to genuine expression of remorse. On the other hand, an expression of remorse following conviction after a trial amounts to an expression of remorse that is not genuine, which means nothing and a factor against a prisoner.

In your case, you did not plead guilty to the charges against you. Instead, you denied the charges and thereby forced the victim, a very young girl to come and testify against you in Court, before total strangers and her abuser. Whilst I appreciate, that the Court did not give you the opportunity to express your remorse after the Court found you guilty, it would not have made any difference. This is because, you did not plead guilty and say, sorry much earlier on in the criminal process applied against you. It seems clear to me that, you have communicated your apologies or expression of remorse after your imprisonment. In these circumstances, I find there is no good basis for me to revisit the sentence previously imposed because the authorities do not favour the Court considering your belated expression of remorse in your favour.

It should naturally follow that, this leaves you with no basis to even, consider your plea for mercy toward you. For completeness however, I will give your remaining pleas for the Court to take into account your family’s welfare and a reduction or a suspension of your sentence or place you on probation.

The first matter I give consideration to then is your pleads for your family’s welfare. The law is also very clear on this. I restated the law in The State v. Lucas Yovura (29/04/03) N2366 in these terms:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

I note other judges have also considered these principles and applied them. In so doing, they have also refused to extend any leniency or mercy toward an offender because of his family’s welfare concerns. An example of that is the judgment of Injia J., (as he then was) in The State v. Pablito P Miguel (06/12/02) N2338 and Sakora J., in The State v. Henry Mapi (03/07/98) N1936.

Turning then to the issue of your plea for a suspended sentence, again I note that the law is also clear. In Acting Public Prosecutor v. Don Hale (27/08/98) SC564, the Supreme Court stated the law in these terms:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

Proceeding on that basis, I held in The State v. Irox Winston (21/09/00) N2304 that:

"... [I]f the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."

Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730.

Applying these principles to your case, I note, the same pre-sentence report that was before this Court at the time of the earlier sentence remains without any change. As noted in the earlier judgment on your sentence, this report does not support any suspension of your sentence, let alone you being put on probation. It follows therefore that, you have not made out any case for a suspension of either a part or the whole of your sentence.

The next issue I turn to is your plea for a reduction of the sentence, previously imposed. You have not made out a case for this Court to do that. On the other hand, I note the Parliament considered the kind of offences you committed very serious and has since increased the sentences in these kinds of cases. I noted this recently in the case of The State v. Peter Lare (20/05/04) N2557, generally in the context of sexual offences against children of tender age as in your case. There, I noted that s.15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) introduced this changes and said of the amendments at page 5:

"This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against the children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. ..."

In the circumstances, I am of the view that, there is no good basis to reduce the sentence you have already received.

What is the end result then? I find that you have not made out a case for this Court to come to a different sentence then the one it arrived at on 22nd July 2002. Accordingly, I adopt the reasons for judgment and the decision on sentence in that judgment. I therefore order that you serve the sentence of 8 years and 3 years respectively for the two offences of, attempted carnal knowledge of a girl under 10 years and indecently dealing with a girl under 16 years. There will of course be a deduction of the time you have already spent in custody. That period I note is about 3 years 11 months, which I order be deducted from the total sentence of 11 years, leaving you with a balance of 7 years 1 month to serve in hard labour.

I accept your plea for your transfer to the Bundaira CIS in Kainantu, Eastern Highlands Province. I therefore order that you be transferred to that prison for you to serve your sentence.
______________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor