SC2790
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO 27 OF 2023

LIMSON RONNIE
Appellant

V

THE STATE
Respondent

LAE: LIOSI, DOWA J, WAWUN-KUVI J
29 OCTOBER 2025

CRIMINAL APPEAL- SENTENCE-Rape, s 347(1), s Identification- Whether the trial judge exceeded statutory jurisdiction? And if so, what is the appropriate sentence?

The appellant was charged with rape under s 347(1) of the Criminal Code. He was sentenced to 16 years imprisonment.

Held:

1. The maximum penalty for rape under s 347(1) of the Criminal Code is 15 years imprisonment.
2. If the State intends to rely on circumstances of aggravation to increase the penalty to a higher maximum it must plead it in the indictment as required under ss 1, 528(2) to (6) and 538: see Garry Louha v The State (2024) SC 2551 and Palma v State (2008) SC1214.
3. It is the responsibility of counsel on an appeal against sentence to assist with the relevant principles and sentencing trend that have been followed up to time of sentencing.
4. Given the circumstances of the case, the comparable cases and the age of the appellant, a sentence of 5 years imprisonment is appropriate.
5. The appeal against sentence is allowed. The sentence of 16 years is substituted with time spent in custody being 5 years, 1 weeks and 4 days.

Cases cited
Garry Louha v The State (2024) SC2551
Henry v State [2020] PGSC 147; SC2063
Palma v State (2008) SC1214
State v Kuman (2017) N6925
State v Levo (2015) N6029
State v Kabonanga (2020) N8634

Counsel
V Ngibe for the applicant 
P Matana for the respondent

1.	BY THE COURT: The appellant was indicted on one count of rape under section 347(1) of the Criminal Code. He was convicted of the charge on 22 December 2022 and sentenced on 15 August 2023 to 16 years imprisonment.

2.	He now appeals against sentence only and abandons his appeal against conviction. 

3.	The State respondent concedes to the appeal accepting correctly that the trial judge had exceeded the statutory jurisdiction.

4.	The maximum penalty for rape under s 347(1) of the Criminal Code is 15 years imprisonment.

5.	This Court in Garry Louha v The State (2024) SC 2551 and Palma v State (2008) SC1214 upheld the appeals because the trial judges exceeded the statutory jurisdiction in imposing sentences in excess of the maximum prescribed under s 347(1) Criminal Code.

6.	As was said in Garry Louha v The State (2024) (supra):

“It is also well established that if the State wishes to rely on a circumstance of aggravation by reason of which an accused is liable to a higher maximum penalty it must be charged in the indictment: ss 1, 528(2) to (6) (form of indictment) and 538 (offences involving circumstances of aggravation) of the Criminal Code; Mari v State (2007) SC1147, The State v Michael Butemo Jiregari [1984] PNGLR 62; The State v Dibol Petrus Kopal (2004) N2778; The State v Binga Thomas (2005) N2828; The State v James Yali (2006) N2989 J); and The State v Jeffery Wangi (2006) N3016.
If a circumstance of aggravation is not charged in the indictment, it may nevertheless be taken into account as an aggravating factor when deciding on a sentence within the permissible range: The State v Kopal, supra, The State v Marcus Yame (2010) N4131 at [7]; The State v Mark Samuel Haupas (2007) N3186 at [15]. Indeed, a judge must take into account all established facts in determining sentence: The State v Miseal Butemo Jiregari [1984] PNGLR 62.”

7.	Given the position in law, the appeal against sentence must be upheld as the trial judge exceeded the statutory jurisdiction in imposing a sentence in excess of the maximum prescribed under s 347(1) Criminal Code.

8.	Having reached this decision, the issue before us now is what should have been the appropriate sentence. Both counsels have not provided any assistance. It is the responsibility of counsel having agreed that the sentence was outside of the prescribed maximum to then address this Court on the appropriate penalty.

9.	This Court in Henry v State [2020] PGSC 147; SC2063 said:

“the appellant is entitled to be sentenced in accordance with the principles and sentencing trends that had been followed to the time of his sentencing.”

10.	Here we are now left to decide what should have been the appropriate penalty.

11.	During submissions on sentence prosecuting counsel submitted a range between 17 and 25 years. The prosecutor had led the trial judge into error with that sentencing range. Counsel at trial for the appellant submitted a range between 4- and 12-years imprisonment. 

12.	On proper consideration of the facts peculiar to the case, the guidelines if any and comparable cases, there should not be an inconsistency in the sentencing range submitted by counsels.

13.	 Here, the facts show that he met the victim along the road to her garden. He threatened her with a knife and sexually penetrated her by inserting his penis into her vagina. She then ran off and informed her church members who told her to go wash in the river. She then went home and went to the hospital 3 days later. The medical report showed that she had scratch marks on her thighs and general pain around her vagina. 

14.	The following comparable cases are of assistance:

15.	Garry Louha v The State (2024) (supra) involved a position of trust. The applicant was a police officer who raped a woman in custody. The sentence of 15 years imprisonment was affirmed.

16.	 Palma v State [2008] (supra) involved a breach of a position of trust. The appellant was a city ranger who had caught the victim chewing betelnut. He forced sexual intercourse on her. The sentence of 16 years was quashed and substituted with a sentence of 10 years imprisonment.

17.	State v Kuman (2017) N6925, the offender used a coffee stick to hit the victim and raped her. She was walking back to the village when the offender dragged her into the bush. His accomplice who was also presented raped the victim while the offender acted as a watch man or look out. He was sentenced to 12 years imprisonment.

18.	State v Levo (2015) N6029 also involved a position of trust. The offender was a police man who raped a female detainee. He was sentenced to 10 years imprisonment.

19.	The foregoing cases are far more serious and attract a range between 10 and 15 years.

20.	 State v Kabonanga (2020) N8634 has similar features. In that case the offence occurred along a bush track close to the victim’s garden. The offender had his possession an axe and knife and pulled the victim into the bush. He forcefully undressed her and inserted his finger into her vagina. He was sentenced to 7 years imprisonment.

21.	Here, the facts indicate that it was a crime of opportunity as opposed to a premediated act. It is not as serious as the cases of Garry Louha v The State (2024) (supra), Palma v State [2008] (supra), State v Kuman (2017) (supra) and State v Levo (2015) (supra). A sentence of less than 10 years imprisonment is appropriate.
22.	The appellant was in Grade 9. His exact age is unknown. Considering that he was in high school and appears relatively young now, it can be accepted that he was a youthful offender at the time of sentencing. Given the circumstances of the case, the comparable cases and the age of the appellant a sentence of 5 years imprisonment is appropriate.

23.	Given that he has already served 5 years, 1 week and 4 days, we find that he has served his sentence.

24.	In conclusion, the appeal against sentence is allowed. The sentence of 16 years is substituted with time spent in custody being 5 years, 1 weeks and 4 days.

Orders

25.	The Orders of the Court are as follows:
1.	Appeal against sentence is allowed, and the sentence is substituted with time spent in custody which is 5 years, 1 week and 4 days.
2. He shall be released from custody upon Correctional Services receiving this Order.

Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor