Peter v State [2006] PGSC 42; SC1316 (3 November 2006)

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CRIMINAL LAW – appeal against sentence – rape – whether sentence manifestly excessive – increase in sentencing tariffs since date of trial – whether question of excessiveness of sentence determined by tariffs applying at date of trial or date of appeal

The appellant was sentenced to 17 years imprisonment for rape. He appealed against severity of the sentence. The appeal was heard five years after sentence was imposed. It was acknowledged that sentences for rape had generally increased substantially over that period. The question arose, amongst others, whether, in determining if a sentence was excessive, the Supreme Court should apply the sentencing tariffs applying at the date of trial or those current at the time the appeal was heard.

James Mora Meaoa v The State [1996] PNGLR 280
John Aubuku v The State [1987] PNGLR 267
Lawrence Hindemba v The State (1998) SC593
Norris v The State [1979] PNGLR 605
The State v Eddie Peter (No 1) (2001) N2296
The State v Eddie Peter (No 2) (2001) N2297.
Thomas Waim v The State (1997) SC519

1. BY THE COURT: This is an appeal against a sentence of 17 years for rape. The appellant, Eddie Peter, was convicted by the National Court (Kandakasi J) after pleading not guilty. The trial was held in Alotau, Milne Bay Province, in October 2001. The appellant appealed within a month after the trial. We will comment later in the judgment on the delay in having the appeal heard. The appellant appealed against both conviction and sentence but withdrew the appeal against conviction at the hearing of the appeal. The National Court judgments on verdict and sentence have been published as The State v Eddie Peter (No 1) (2001) N2296 and the State v Eddie Peter (No 2) (2001) N2297.

2. The appellant, aged 34 at the time, committed the offence at Naura, near Alotau, on 26 August 1998. The victim was a girl aged 14. She was on her way to school, around 7.00 am, when she saw a masked man, the appellant. She tried to run away but he caught up with her when she fell face down, crying. The appellant placed a grass-knife on her neck, lifted her by her hands, took her to the side of a river, forced her to lie down on a log, forcefully removed her clothes then sexually penetrated her without consent. She felt pain and cried and he again threatened her with the grass-knife and ordered her not to cry. After raping her he told her to go to Naura Hospital for medical treatment. She went there and was later taken to Alotau Hospital. She had sustained injuries to her knees and was in a general state of shock. The main issue at the trial was identification. The trial judge accepted the victim's evidence. Though the offender had his face masked, she could recognise him by his voice and features. The offender was related to her by marriage and she called him 'uncle'.

3. The trial judge observed that the maximum sentence for rape is life imprisonment. His Honour agreed with what the Supreme Court said in John Aubuku v The State [1987] PNGLR 267 about the seriousness of the crime of rape and the need to impose custodial sentences on offenders unless wholly exceptional circumstances exist. His Honour observed that if the offender is a person known to the victim the betrayal of trust constituted by a rape is a serious aggravating factor. That was emphasised by the Supreme Court in James Mora Meaoa v The State [1996] PNGLR 280.

4. His Honour expressed disagreement with the Supreme Court's decision in Thomas Waim v The State (1997) SC519, which found a sentence of 25 years imposed by the National Court excessive on the ground that it represented a quantum leap in the appropriate sentence and reduced the sentence to 18 years. His Honour felt that the quantum leap principle should not constrain a sentencing judge who was in the best position to arrive at the appropriate sentence in view of his or her intimate knowledge of the facts of the case and the circumstances of the offender. His Honour cited with approval the dicta of the Supreme Court in Lawrence Hindemba v The State (1998) SC593, which indicated that a guilty plea for rape with aggravating circumstances such as the young age of the victim, abduction and use of force or threatened force can attract sentences in the range of 14 to 18 years imprisonment.

5. His Honour expressed concern that despite judicial pronouncements about the seriousness of the crime of rape and the need for sentences to act as a deterrent, the crime was becoming more prevalent. In the present case his Honour regarded the following as aggravating circumstances:

6. His Honour did not identify any mitigating circumstances. His Honour considered the personal circumstances of the appellant. He was aged 34 at the time of the offence, married with two children. He was educated to grade 6. He spent three years, one month and 15 days in custody before the date of sentence. He had no prior convictions. His Honour concluded that 17 years imprisonment was the appropriate sentence less the pre-sentence period in custody.

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

8. The approach to be taken by the Supreme Court when it hears an appeal against sentence was set out in Norris v The State [1979] PNGLR 605. There are two questions to be addressed:

9. Question 1 – Has the trial judge made an identifiable error which has the effect of vitiating (making invalid) the sentence? That is, has the trial judge made a mistake on the facts? Applied a wrong law or taken account of an irrelevant consideration? Failed to take account of a relevant consideration? Clearly given too much weight or too little weight to a relevant factor?

10. If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. The new sentence can be more or less severe than the original sentence, as in Lawrence Hindemba v The State (1998) SC593, where the Supreme Court increased a rape sentence on appeal from 10 years to 15 years. If no, the Supreme Court should proceed to question 2.

11. Question 2 – Is the sentence obviously (not merely arguably) excessive (or lenient)? That is, even though no particular error by the trial judge can be identified, is the sentence out of reasonable proportion to the circumstances of the crime?

12. If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. Again, the new sentence can be more or less severe than the original sentence. If no, the trial judge will have imposed a correct sentence. The appeal against sentence will be dismissed. We now apply those principles to the present case.

13. We agree with the sentiments expressed by the trial judge about the seriousness of the offence of rape and the need for strong, deterrent sentences. We also agree that most of the aggravating factors referred to were relevant. However, we consider that his Honour made two errors in the exercise of the sentencing discretion.

14. First, his Honour took into account that the appellant had earlier tried to have sex with the victim without success. That was an irrelevant consideration as the appellant was not charged over what is alleged to have happened on a previous occasion and it was not proven or conceded in the trial that there had been a previous incident.

15. Secondly, his Honour focussed only on aggravating factors and did not address his mind to any mitigating factors, for example:

We consider that these errors vitiate the sentence and require that it be quashed and substituted by a lower sentence.

16. In addressing this issue we emphasise that the appellant was sentenced five years ago, in October 2001. It is generally acknowledged that in recent years sentences imposed by the National Court for all crimes of violence, eg wilful murder, murder, manslaughter, rape and armed robbery have increased substantially. The courts have responded to concerns in the community that people, especially women and children, do not feel safe on the streets and in their homes anymore. Strong, deterrent sentences have been called for and they are being imposed. In 2002 the National Parliament amended the Criminal Code by passing the Criminal Code (Sexual Offences and Crimes against Children) Act No 27 of 2002. The new law commenced operation in April 2003. The sentences for sexual offences against children were substantially increased. A new sentencing regime was introduced for rape through the insertion of a new Section 347. The maximum sentence for rape in circumstances of aggravation is life imprisonment. If there are no aggravating circumstances the maximum is 15 years imprisonment.

17. We point out these changes in the law and sentencing practices as we consider it necessary that this appeal – including the issue of whether the sentence was manifestly excessive – be determined having regard to the law and sentencing principles that applied at the time of sentence, in October 2001. At that time the leading cases on sentencing for rape were those set out by the trial judge, so it is useful to consider the facts of those cases and the principles emerging from them.

18. In John Aubuku v The State [1987] PNGLR 267 (Bredmeyer J, Los J, Hinchliffe J) the offender was a police officer who raped a married woman suspect detained in custody at Banz police station. He threatened her with a knife. His application for leave to appeal against a sentence of 10 years was refused. The Supreme Court set out the following sentencing guidelines, identifying four categories of rape cases:

No	Circumstances in which rape committed	Starting point
1	Rape committed by an adult without any aggravating or mitigating features.	5 years
2	Rape committed by: two or more persons acting together; or a person who has broken into or otherwise gained access to a place where the victim is living; a person who is in a position of responsibility towards the victim; or a person who abducts the victim and holds her captive.	8 years
3	Rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger.	15 years
4	Rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, where the accused is likely to be a danger if at large in the community.	Life imprisonment

19. In James Mora Meaoa v The State [1996] PNGLR 280 (Kapi DCJ, Los J, Doherty J) it was held that the way an offender conducts himself can give rise to a relationship of trust; and that if such a relationship is violated, it is an aggravating factor. In that case the offender was the operator of a dinghy travelling from Port Moresby to Lavare, Gulf Province. The victim, a 12-year-old girl, was a passenger. The dinghy capsized. The offender helped the victim, a non-swimmer, to shore. Then he raped her, leaving her to fend for herself. She was then raped by two other men and suffered horrific injuries. The offender's appeal against conviction and sentence of 14 years imprisonment was dismissed.

20. In Thomas Waim v The State (1997) SC519 (Kapi DCJ, Andrew J, Sakora J) the Supreme Court found a sentence of 25 years imposed by the National Court excessive on the ground that it represented a quantum leap in the appropriate sentence and reduced the sentence to 18 years. The offender pleaded guilty to four counts of rape. The victim was with her boyfriend when she was abducted by the offender and others who chased away the boyfriend and then subjected her to a horrific series of gang rapes, in which she was seriously assaulted and subject to prolonged sexual indignities and perversions.

21. In Lawrence Hindemba v The State (1998) SC593 (Woods J, Injia J, Sawong J) the Supreme Court increased a sentence on appeal from 10 years to 15 years. The offender grabbed the victim, a 10-year-old girl, as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let her go when her sister intervened to free her and sexually penetrated her by force. The victim was in immense pain and suffered vaginal injuries. The offender pleaded guilty

23. The present case was a serious case of rape but the aggravating circumstances were not as severe or numerous as those in the above cases. If we were to apply the sentencing guidelines in Aubuku, it would be placed in the lower range of category No 2, resulting in a starting point of 8 years. Allowing for the fact that sentences increased between 1987 and the date of sentence in the present case, 2001, and comparing the facts of the present case with those in the other cases referred to, we consider that a sentence of 17 years was obviously excessive. It was out of kilter with the range of sentences being imposed in 2001 for the type of rape that was committed. For that reason also, we will quash the sentence.

24. Having identified two errors in the exercise of the trial judge's discretion and decided that the sentence was obviously excessive, we decide for the purposes of Section 23(4) of the Supreme Court Act that a less severe sentence is warranted in law. We will quash the sentence of 17 years and pass in substitution for it a sentence of 12 years imprisonment.

25. Before pronouncing the order of the Court we express our concern about some aspects of this case. It took five years for this appeal to be heard, which is an unacceptable delay. We made informal enquiries with the Deputy Registrar of the Supreme Court who said that the appellant (together with six other appellants whose appeals we heard the same day as this one) had been imprisoned at Gile Gile Jail, Milne Bay Province, since they were sentenced in October 2001. They all appealed within a month after sentence and their appeal books were compiled soon afterwards. The Deputy Registrar had been asking the Correctional Service to transfer the appellants to Bomana Jail, National Capital District, so their appeals can be heard. But the Correctional Service has cited 'funding difficulties' as the cause of the delay. The Supreme Court has not sat in Alotau during the last five years. It was only in July this year that the appellant and his colleagues were transferred to Bomana.

26. That explanation is not a good one. All individuals and institutions involved in the administration of justice – especially the Courts and the Judges and officers of the National Judicial Staff Service, the Correctional Service and its officers, the Public Solicitor, the Public Prosecutor and his officers and the Ombudsman Commission and its officers – must be vigilant against these sorts of delays, and do something about it. The delay in the present case was especially regrettable as in addition to the inordinately long time it took for his appeal to be heard, the appellant had been in custody for over three years before his trial was heard.

27. We question why the Public Solicitor, who represented the appellant at the trial, appears to have taken no interest in prosecuting an appeal that has been shown to have merit and no interest in expediting its appeal. A prime function of the Public Solicitor under Section 177(2)(a) of the Constitution is to provide legal aid, advice and assistance for persons in need of help by him and in particular those charged with offences punishable by imprisonment for more than two years.

28. Section 37 of the Constitution gives every person in this country – especially those in custody or charged with offences – the right to the full protection of the law. A person charged with an offence must be afforded a fair hearing with a reasonable time. That right extends to having an appeal against sentence being heard within a reasonable time.

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Lawyer for the appellant : Self-represented
Public Prosecutor: Lawyer for the Respondent

Supreme Court of Papua New Guinea

Peter v State [2006] PGSC 42; SC1316 (3 November 2006)