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Public Prosecutor v Kupari, Uld, Mek, Yok and Pera [1976] PGSC 1; SC101 (29 July 1976)

Unreported Supreme Court Decisions

SC101

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

APPEAL NO. 82 OF 1976 (N.G.)
BETWEEN: THE PUBLIC PROSECUTOR
APPELLANT
AND: PAHO KUPARI, KEPA ULD, KOT MEK, BAKERI YOK AND PUP PERA
RESPONDENTS

Waigani

Frost CJ Prentice DCJ Williams J
26-27 July 1976
29 July 1976

CRIMINAL LAW - Appeals against sentence - applications to increase sentence - pleas of guilty to housebreaking and entering with intent to commit a crime - acquittals of other offences charged - consideration of which points of evidence might be taken into account.

Order of the Court

That the appeal be dismissed.

FROST CJ PRENTICE DCJ WILLIAMS J: The Public Prosecutor contends in this appeal that the sentences imposed on the respondents were inadequate. Charges of breaking and entering a dwelling house at night time with intent to commit a crime, attempted rape, assault with intent to rape and unlawful wounding were preferred. Pleas of not guilty were entered to all but the breaking and entering charges. Pleas of guilty to the latter were accepted in full discharge of the indictment.

The incident involved the young respondents acting as a gang. A young woman was confronted, put in terror and driven from her house; and stones were thrown. The happenings were violent and ugly.

In all the circumstances, it is urged that His Honour the trial judge must have overlooked the factors of aggravation which obtained, or given insufficient weight to them. Taking into account time spent in custody awaiting trial, the sentences imposed amount effectively to 21 months in the case of the youngest offender, 26 months in the case of another, and 25 months in the cases of the remainder.

This Court has carefully considered the contents of the respective records of interview and statements made by the respective offenders. It finds itself in some difficulty, having regard to the words used therein, in deciding to what extent an actual resolution to rape (as distinct from intent to press for intercourse) would have been maintained. The trial judge it seems, may have entertained some doubt in that regard, for in his remarks on sentence he used the formula “the crime contemplated being some sort of violence of a sexual nature, there was a woman in the house upon whom they had designs”.

The respondents were, of course, found not guilty of attempted rape, and of assault with intent to commit rape. The charge to which they pleaded guilty included the words “with intent to commit a crime”. The word “crime” is therein used in the Code sense of an offence more serious than a “misdemeanour” or a “simple offence”. The only “crime” which would fit the indictment would seem to be that of rape. The notes of course do not indicate the precise form in which the accused were arraigned. But it is clear that no specific challenge was mounted at the trial against any of the evidence in the committal proceedings, such as would have required His Honour to proceed to a hearing of the evidence and to make findings of fact and law. The respondents’ counsel suggests that those specific elements of the evidence which would support the charges of which the accused were acquitted, should be ignored when the Court considers circumstances of aggravation to the housebreaking. Lovegrove v. The Queen SC101.html#_edn1" title="">[i]¹, R. v. WebbSC101.html#_edn2" title="">[ii]² and R. v. KingSC101.html#_edn3" title="">[iii]³ were cited in support of his submissions. These cases related to taking into account on lesser charges, matters of evidence possibly supporting graver charges of which the accused persons were acquitted. This Court is by no means persuaded that they are apt to the circumstances of this case. Even if, however, such facts be set aside in this case, the housebreaking was a bad one, motivated not as is usually the case by hunger or desire for money, but by sexual appetite.

There is no cross appeal against the propriety of conviction on the charge to which pleas of guilty were entered.

The Court is of the opinion that the sentences are indeed somewhat light having regard to the aggravated nature of the housebreaking involved. The Public Prosecutor urged most forcefully that sentences of up to 4 years’ imprisonment were called for. The Court initially felt disposed towards regarding 3 years as being about the sentence which it might have imposed. However, having regard to the considerations expressed above, the Court is of the opinion that no miscarriage of justice has actually occurred, and that none will occur if the appeal be dismissed. The appeal will be dismissed.

Solicitor for the Appellant: L.W. Roberts-Smith, Public Prosecutor

Counsel for the Appellant: L.W. Roberts-Smith; B.T.J. Sharp

Solicitor for the Respondents: N.H. Pratt, A/Public Solicitor

Counsel for the Respondents: C.F. Wall

SC101.html#_ednref1" title="">[i]^{(1961) Tas.S.R.106}

SC101.html#_ednref2" title="">[ii]^{(1971) V.R.147}

SC101.html#_ednref3" title="">[iii]^{[1925] NSWStRp 18; (1925) 42 W.N. (N.S.W.) 50}