SC871

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 7 OF 2007

BETWEEN:

ROBERT SOLOMON
Appellant

AND:

THE STATE
Respondent

Kimbe: Injia, DCJ. David, and
Hartshorn, JJ.
2007: 28 & 30 August

CRIMINAL LAW - Appeal against Conviction and Sentence – s. 347(1) & (2) Criminal Code – Rape of Child under 16 years – Totality Principle

Cases cited 

Maima v. Sma [1972] PNGLR 49,
John Beng v. The State [1977] PNGLR 115, SC 112, 
William Norris v. The State [1979] PNGLR 605,
Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205,
Ted Abiari v. The State (No.1) [1990] PNGLR 250, SC 389, 
Paul Mase and Kopa Lore John v. The State [1991] PNGLR 88, SC404, 
Rawson Construction Ltd v. Department of Works (2005) SC 777.
Ben Wafia v. The State (2006) SC851, 
Stanley Sabiu v. The State (2007) SCRA No. 10 of 2006, Wewak, 

Counsel:

Appellant, in person
F.K. Popeu, for the Respondent

30 August, 2007

1. BY THE COURT: Introduction: The appellant was convicted of 3 counts of sexual penetration of the victim contrary to s. 347(1) and (2) Criminal Code following a trial. He appeals his conviction and the sentence of 45 years in hard labour that was imposed upon him.

2. The grounds of appeal are that:

a) there was evidence available at the time to prove the appellant's 	innocence although this evidence was not available at the time of trial,

b) the victim was not raped, she was the appellant's wife,

c) the sentence was and is manifestly excessive in the circumstances.

Appeal against conviction

3. As to an appeal against conviction, s. 23(1) (a) Supreme Court Act states:

"Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that –

a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;…."

4. The Supreme Court case of John Beng v. The State [1977] PNGLR 115 SC 112, after considering various authorities, held that the equivalent section in the former Supreme Court Act 1975, should be interpreted to mean that;

"the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed."

First ground

5. As to the first ground that there was evidence available at the time to prove the appellant's innocence although this evidence was not available at the time of trial; if the evidence was available at the time of trial the appellant should have brought that evidence before the Court at the time of trial. If the evidence was not available at the time of trial and constitutes fresh evidence then application should have been made by the appellant before or at the hearing of the appeal; Section 6(1) (a) Supreme Court Act, Ted Abiari v. The State (No.1) [1990] PNGLR 250, SC 389, Rawson Construction Ltd v. Department of Works (2005) SC 777. No such application was made. The Court is not able to consider evidence that is not before it. Consequently, this ground of appeal is dismissed.

Second ground

6. As to the second ground that the victim was not raped, she was the appellant's wife; the first observation we make is that since the coming into law of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002, which inter alia, repealed and replaced s. 347 Criminal Code, because a woman is a wife does not mean that her husband is unable to commit the offence of rape against her.

7. The trial judge in our view, thoroughly considered all of the evidence concerning the relationship between the appellant and the victim and concluded that the victim was not the wife of the appellant but was considered as the sister of the appellant; the actual blood relationship being one of the degrees of "cousin". We are satisfied that there is no merit to this ground of appeal and it is dismissed.

Appeal against Sentence - Third Ground
 
8. An appeal against sentence is governed by s. 22(d) and s. 23(4) Supreme Court Act. The legal principles on an appeal against sentence are well settled in this jurisdiction and were reiterated in the recent Supreme Court case of Ben Wafia v. The State (2006) SC 851; 

"A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605."

9. To determine whether the trial judge has erred in the exercise of her discretion requires a consideration of previous sentences that have been imposed for this category of offence. 

10. Counsel for the State and the appellant during the trial, submitted that a sentence of between 17 and 20 years imprisonment for each count was appropriate. Counsel for the appellant submitted that the sentences for each count should be served concurrently while Counsel for the State submitted that the sentences should be served cumulatively.

11. The trial judge imposed a sentence of 20 years on each count and ordered that the sentences be served cumulatively as each count involved 3 different sets of facts although the victim was the same. The trial judge then suspended 5 years for each count on the "totality principle" giving a total of 45 years and then deducted 10 months of pre-trial custody leaving a period of 44 years and two months of imprisonment to be served.

12. The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence is prescribed under s. 347(1) where there are circumstances of aggravation under s. 347(2), as life imprisonment. In this instance the circumstances of aggravation were included in the indictment.

13. In the recent case of Stanley Sabiu v. The State (2007) SCRA No. 10 of 2006, Wewak, the Supreme Court considered sentences that have been imposed by the National Court for offences against s. 229A Criminal Code which provides that it is a crime to engage in acts of sexual penetration with a child under the age of 16 years. The maximum penalty for this crime where there are no aggravating factors is 25 years imprisonment. It was noted in that case that in 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

14. Where the victim is under the age of 16 years the question of consent is the only element that differentiates the offence under s.229A from the offence under s. 347(1). Consequently sentences imposed for offences committed against s.229A can be considered when determining sentences to be imposed for offences committed against s. 347(1) and vice versa.

15. The trial judge took into account the following factors against the appellant; that he denied the charges and thereby forced the victim to give evidence in court, the victim was the equivalent of being the appellant's sister and was in a position of trust and or authority to the appellant, the appellant severely breached that trust, the victim was treated like a slave and also a sex slave, the period of mistreatment lasted 4 years, the appellant had weapons nearby when having sex with the victim and the acts of sex were forced and without consent. We note a further aggravating factor was that the victim became pregnant by the appellant and subsequently gave birth.

16. The trial judge took into account the mitigating factors which were; that it was the appellant's first offence, that he was remorseful and pleaded for mercy.

17. After considering the reasoning of the trial judge, all the factors taken into account and the severity of this particular case we are more than satisfied that it was open to the trial judge to impose an initial sentence of 20 years imprisonment upon the appellant in respect of each count.

Consecutive sentences

18. As to whether the sentences should have been consecutive or concurrent, we are satisfied on the authority of the Supreme Court case of Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205, that it was open for the trial judge to impose the sentences of imprisonment consecutively as there were 3 different offences although they were against the same victim. The offences do not come within the ‘one-transaction rule’ referred to in Thomas, Principles of Sentencing (2nd ed), at 53-61.

Totality

19. As to the trial judge’s application of the ‘totality rule’ we have had recourse to the Supreme Court case of Paul Mase and Kopa Lore John v. The State [1991] PNGLR 88, SC404. In the judgment of Kidu CJ., and Amet J., (as they then were), it was stated:

" We do not consider that there is any hard and fast rule to be followed although it would be permissible for a sentencer to take into account the maximum penalties provided by law for each offence and whether or not each offence committed falls into the worst, most serious or less serious of its kind. Also the sentencer should ensure that the total sentence imposed is not substantially above the normal sentence for the more serious (not the worst type) of the offences. The rationale behind this is….. common sense. Apart from the "worst type" of cases where the maximum sentences are justified in cases of "more serious type" an aggregate sentence might be too crushing….., or manifestly excessive."

20. In this instance, we consider that the total sentence of 45 years imposed by the trial judge is excessive when regard is had to what the normal sentence is for the more serious cases of rape. As referred to previously, the more serious cases of child sexual penetration, where the victim is between 13 and 15 years of age, range up to 20 years. For the crime of rape with which the appellant was charged, the more serious cases have had sentences imposed of up to 27 years; The State v. Moses Winga (2005) N 2952.

21. In the circumstances, having found that the sentence of 20 years imprisonment on each count was appropriate, in accordance with the totality principle we reduce the sentence on each count by 12 years. This results in 3 sentences each of 8 years, to be served consecutively; a total of 24 years imprisonment with hard labour less 10 months pre-trial custody already served.

Judgment

22. Grounds of appeal one and two are dismissed. Ground of appeal three is upheld. The sentence imposed by the trial judge is quashed and is substituted with a sentence of 24 years imprisonment in hard labour less 10 months pre-trial custody already served.
_______________________________________________________

Appellant - In person 
Public Prosecutor: Lawyers for the Respondent