|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR NO 19 0F 2006
BETWEEN
JACK MARI
Applicant
AND
THE STATE
Respondent
Lae: Sakora, Davani & Cannings JJ
2007: 26 February, 2 March
CRIMINAL LAW – review of sentence after plea of guilty – duty of trial judge to sentence offender on the basis of the facts to which he or she has pleaded guilty – duty to act on the version of facts which, within the bounds of possibility, is favourable to the offender.
CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years – Criminal Code, Section 229A
The applicant sought review of a sentence of 20 years imprisonment imposed by the National Court after he pleaded guilty to an offence under Section 229A of the Criminal Code, engaging in an act of sexual penetration with a child under the age of 16 years. The child was a 14-year old girl, his stepdaughter. He appealed outside the 40-day time limit imposed by the Supreme Court Act but satisfied the Court that there were good reasons for dealing with his case as a review of the National Court's decision. The main issues on the review were whether the trial judge had erred by (a) misdirecting himself as to the maximum penalty; and (b) finding as a fact, and regarding as an aggravating factor, that the incident over which the applicant was convicted was the last in a series of incidents over a number of years in which the applicant had sexually abused the victim, when that allegation was not put to him when he pleaded guilty and he denied it during his police interview.
Held:
(1) The maximum penalty for an offence under Section 229A of the Criminal Code depends on whether circumstances of aggravation are charged in the indictment and whether they are proven.
(2) The prescribed circumstances of aggravation are where the child is under the age of 12 years and/or where there was an existing relationship of trust, authority or dependency between the accused and the child; in which case the maximum penalty is increased from 25 years to life imprisonment.
(3) When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty.
(4) As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.
(5) If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
(6) In the present case the trial judge erred by regarding the maximum penalty as life imprisonment as, notwithstanding the presence of a circumstance of aggravation (the relationship of trust between the accused (stepfather) and the victim (step-daughter)) that circumstance was not charged in the indictment. The maximum penalty was therefore 25 years imprisonment.
(7) The trial judge also erred by sentencing the offender on the basis of aggravating facts to which the offender did not plead guilty and had no opportunity to rebut.
(8) There were identifiable errors in the sentence, which were serious and vitiated the exercise of the trial judge's discretion as to sentence. The Supreme Court was obliged to quash the sentence and pass a substitute sentence.
(9) Notwithstanding the errors, the overriding consideration was that, for reasons explained by the trial judge, the applicant had committed a very serious offence and a strong sentence was required. The sentence of 20 years was set aside and substituted with a sentence of 15 years imprisonment.
Cases cited
The following cases are cited in the judgment:
Application by Herman Joseph Leahy (2006) SC855
Mark Bob v The State (2005) SC808
Saperus Yalibakut v The State (2006) SC890
The State v Binga Thomas (2005) N2828
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v John Andrew CR No 98 of 2000, unreported
The State v Michael Butemo Jiregari [1984] PNGLR 62
William Norris v The State [1979] PNGLR 605
REVIEW
This is a determination of an application for review of a sentence for the offence of engaging in an act of sexual penetration with a child under the age of 16 years.
Counsel
J Mari, the applicant, in person
M Zurenuoc, for the respondent
2 March, 2007
1. BY THE COURT: This is a review of a sentence of 20 years imprisonment imposed by the National Court on the applicant, Jack Mari, after he pleaded guilty to a charge of engaging in an act of sexual penetration with a child under the age of 16 years.
2. On Wednesday 9 July 2003 the applicant was involved in an incident at Polomo, Manus Province, in which he allegedly sexually penetrated a 14-year-old girl, his stepdaughter. The police investigated the incident. The applicant was charged and committed for trial on 27 October 2003. He was indicted before the National Court at Lorengau on 7 April 2006. He pleaded guilty. The presiding Judge, Sevua J, accepted the plea, convicted the applicant and on 13 April 2006 sentenced him. On 10 August 2006 the applicant gave a notice of appeal against sentence. This was more than two months outside the 40-day period permitted by Section 29(1) of the Supreme Court Act.
3. We inquired into the cause of the delay in lodging an appeal. We were told that there were problems in getting appeal documents to and from Manus Province during 2006 due to the poor condition of the Lorengau Jail and confusion caused by the transfer of many prisoners to Buimo Jail at Lae. Counsel for the State, Ms Zurenuoc, conceded that those were justifiable reasons for the delay. She did not object to this court reviewing the sentence under Section 155(2)(b) of the Constitution, which states:
The Supreme Court ... has an inherent power to review all judicial acts of the National Court.
4. It is important to note that the exercise of jurisdiction by the Supreme Court under this provision is not automatic. A person who has lost a right of appeal has to first convince the Supreme Court that it should engage in a review. After considering the explanation given for the delay, Ms Zurenuoc's concessions, the length of the sentence and perusing the appeal book, which shows that there are some significant and arguable points to be determined, we have concluded that the three criteria for granting leave are satisfied. That is:
(See Mark Bob v The State (2005) SC808; Application by Herman Joseph Leahy SCR No 34 of 2005, 15.12.06 unreported.)
5. Therefore we grant leave for the sentence imposed by the National Court to be reviewed by way of an application for review. The offender, who has lost his right of appeal, is referred to as 'the applicant', rather than 'the appellant'.
THE NATIONAL COURT PROCEEDINGS
Indictment
6. The indictment stated:
Jack Mari of Kakandetta, Oro Province, stands charged that he on the 9th day of July 2003 at Polomo ... sexually penetrated [the complainant], a girl under the age of 16 years.
7. It was presented under Section 229A (sexual penetration of a child) of the Criminal Code, which states:
(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.
Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
Arraignment
8. The trial judge put the allegations to the applicant in these terms:
On the evening of 9 July 2003 you and your family were at Polomo village and having dinner in the evening. After dinner you told the victim to go into your room to sleep. You then followed her into the room, and the State says then you had sexual intercourse with her in the room. The State says that at that time the victim was 14 years of age and the victim was your stepdaughter, the child of your wife. You understand the charge?
9. The applicant replied yes and that the charge was true. The trial judge entered a plea of guilty subject to reading the District Court depositions. The defence counsel, Mr Philip Kaluwin, said the plea was consistent with instructions and he had no application to make. The prosecutor, Mr Pondros Kaluwin, tendered the depositions. His Honour read the depositions and said that he accepted the guilty plea. The applicant had no prior convictions.
Allocutus
10. His Honour said that he would hear what the applicant had to say relating to punishment. The applicant said:
Your Honour, I would like to apologise to this court for what I have done. You Honour, I ask mercy from this honourable court.
Submissions
11. The defence counsel, Mr Philip Kaluwin, began by pointing out the offender's personal particulars: age 39, from Oro Province, married with five children including the victim (an adopted child), from the SDA Church, parents both alive, he has six brothers and three sisters, educated to grade 6 at Sorovi Community School, worked for Higaturu Oil Palm in Oro from 1986 to 1989 and for the Department of Civil Aviation in Port Moresby in 1991-1992. Mr Kaluwin submitted that the maximum penalty is 25 years imprisonment and that the court should exercise its discretion under Section 19 of the Criminal Code to impose a lower sentence. Mitigating factors were: the guilty plea, which saved the effort and time in running a trial and saved the victim the embarrassment of reliving her experience; no evidence of any sexually transmitted disease; no physical assaults or threats; the offender's apology and expression of remorse; the stigma that he will carry for the rest of his life; the suffering caused to his family; admissions made in the record of interview. Significantly, Mr Kaluwin added:
We do not dispute that the incident was perpetrated more than once.
12. Mr Kaluwin submitted that though there were a number of aggravating factors, the presence of many mitigating factors should result in a sentence considerably below the maximum of 25 years. A period of 10 to 15 years imprisonment would be appropriate.
13. The prosecutor, Mr Pondros Kaluwin, was not invited to, and did not, make submissions on sentence.
Sentence
14. The trial judge gave an oral judgment. His Honour rejected the defence counsel's submission on maximum penalty. There was an existing relationship of trust, authority and dependency so the appropriate penalty was set by Section 229A(3): life imprisonment. His Honour referred to the mitigating factors highlighted by defence counsel and said that he had taken them into account. However, there should not be any misconceived idea that the case is not serious. It is a very serious case, due to many aggravating factors, in particular:
15. His Honour reiterated that the maximum sentence is life imprisonment and any term of years is already a lenient sentence. This was a very serious case in which the aggravating factors outweighed the mitigating factors. His Honour imposed a sentence of 20 years imprisonment in hard labour and deducted the pre-sentence period in custody of one year and two weeks, leaving the offender facing custody for a further period of 18 years, 11 months and 2 weeks. After pronouncing the judgment, his Honour addressed the applicant directly and explained why he was being given a sentence of 20 years.
THE REVIEW
16. We are treating the notice of appeal as an application for review. It raised two grounds, both of which can be disposed of quickly. First, the applicant argued that the sentence was excessive. He referred to a previous case similar to his, in which, he stated, the offender received a sentence of only 10 years: The State v John Andrew CR No 98 of 2000. Secondly, he said the sentencing judge did not take his family circumstances into account. He is still required to provide for his wife and five children.
17. As to ground No 1, the decision in Andrew's case is unreported. Our checks with the Supreme Court Registry reveal that the offender's appeal against sentence was dismissed. The applicant did not furnish copies of the judgments of orders of the National Court or the Supreme Court. We can therefore attach no weight to his submission regarding that case.
18. As for ground No 2, the trial Judge took into account that the applicant was a family man. Unfortunately when a person commits a serious crime the punishment is felt by not only the offender but also his or her family. That is a fact of life and the trial Judge gave this factor the weight it deserved in the circumstances of this case. When he made his oral submission to the Supreme Court the applicant complained that he had asked the trial judge for mercy but his Honour did not show any. We do not accept that argument. His Honour set out the mitigating factors and explained carefully why he concluded that they were outweighed by the aggravating factors. We therefore dismiss both grounds in the notice of appeal.
New grounds
19. There were two significant points of law that came to light during the hearing of the review. First, whether the trial judge had erred by stating that the maximum penalty was life imprisonment. Secondly, whether his Honour erred by finding as a fact, and regarding as an aggravating factor, that the incident over which the applicant was convicted was the last in a series of incidents over a number of years in which the applicant had sexually abused the victim, when that allegation was not put to him when he pleaded guilty and he denied it during his police interview.
20. We discussed both of the above points with counsel for the State, Ms Zurenuoc, and she made submissions on them. The applicant was unrepresented. This was yet another of a number of appeals in the current Supreme Court circuit in Lae in which a prisoner seemed to have been abandoned by the lawyer who represented him in the National Court, the Public Solicitor. In the circumstances we considered that the points of law should be treated as new grounds of review, viz:
APPLICANT'S SUBMISSIONS
21. The applicant had little to say on the first new ground of review except to stress that he had pleaded guilty as he had committed the crime. On the second point, he said he committed the crime only once and it was never put to him in court that he had been doing the same thing over a number of years.
RESPONDENT'S SUBMISSIONS
22. As to the maximum penalty, Ms Zurenuoc submitted that his Honour had not erred as the relationship between the applicant and the victim was clearly one of trust, authority and dependency. Ms Zurenuoc conceded that an error might have been made when his Honour took into account the allegation that the applicant had committed the same offence previously, as that allegation did not form part of the facts to which the applicant pleaded guilty. However, if it was an error it was not in the circumstances a serious one as it was such a serious case, with many strong aggravating factors, that the sentence of 20 years was an appropriate one. The error, if it were made, did not, according to the principles established in William Norris v The State [1979] PNGLR 605, have the effect of vitiating the sentence.
PRINCIPLES FOR DETERMINING APPEALS AND REVIEWS REGARDING SEVERITY OF SENTENCES
23. The governing law is Section 23(4) (determination of appeals in ordinary cases) of the Supreme Court Act, which states:
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.
24. The practical application of this provision was explained in an often-quoted passage from the judgment of Kearney J in the Supreme Court's decision in William Norris v The State [1979] PNGLR 605. His Honour stated:
To succeed in an appeal against sentence an applicant (other than the prosecutor) must persuade this Court that a more lenient sentence was warranted in law and should have been imposed; when so persuaded, this Court must quash, and substitute the sentence which should have been imposed. ... In practice, in order to persuade this Court, an applicant will usually be required to show some error on the part of the trial judge, going to sentence; that approach accords with the approach followed by this Court and other appellate courts when reviewing any exercise of discretionary power ... The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to assess the proper sentence than is a court of appeal.
So the question in practice on a sentence appeal is usually this — has the applicant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating errors if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.
25. We agree that that is the proper approach to a sentencing review or appeal. Thus there are up to six steps for the Supreme Court to follow:
THE ISSUES
26. The first substantive issues to address are about whether the trial judge made any identifiable errors. In particular:
27. Other issues will then arise, according to the approach required by the Norris principles.
DID THE TRIAL JUDGE ERR BY MISDIRECTING HIMSELF AS TO THE MAXIMUM PENALTY?
28. The maximum penalty for an offence under Section 229A of the Criminal Code is 25 years imprisonment. If there are circumstances of aggravation the maximum penalty can be life imprisonment. The term "circumstances of aggravation" is defined by Section 1(1) of the Criminal Code to include:
... any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.
29. Circumstances of aggravation prescribed by Section 229A are where:
30. If either or both circumstances exist, the maximum penalty can be increased from 25 years to life imprisonment. However, application of the higher penalty (or "greater punishment", to use the language of Section 1(1)) depends on two pre-requisites being satisfied:
31. That is because of Sections 528(2) to (6) (form of indictment) and 538 (offences involving circumstances of aggravation) of the Criminal Code, which state:
Section 528
(2) Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment. [Emphasis added.]
(3) Where the circumstance of aggravation intended to be relied on is a previous conviction, the conviction shall not be charged in the indictment, but written notice of an intention to rely on it as circumstance of aggravation shall be served on the accused person or his lawyer, before the commencement of the trial.
(4) Where a written notice has been served in accordance with Subsection (3) and the accused person has been convicted—
(a) of the offence charged in the indictment; or
(b) of any other offence of which he might be convicted under the indictment,
the prosecution may, after the conviction of the accused person but before sentence is imposed, allege and prove the previous conviction.
(5) On proof of the previous conviction the court may—
(a) convict the accused person of the aggravated offence as if the previous conviction had been charged in the indictment; and
(b) substitute a conviction for the aggravated offence for the conviction already recorded in the trial,
and the accused person is liable to punishment accordingly.
(6) It is sufficient to describe an offence in the words of this Code or the other written law defining it.
Section 538
Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—
(a) established by the evidence; and
(b) constituted by any act or omission that is an element of the offence charged,
with or without any of the circumstances of aggravation charged in the indictment.
32. There is a strong line of National Court cases in support of those propositions. For example: The State v Michael Butemo Jiregari [1984] PNGLR 62 (Pratt J); The State v Dibol Petrus Kopal (2004) N2778 (Lay J); The State v Binga Thomas (2005) N2828 (Lay J); The State v James Yali (2006) N2989 (Cannings J); The State v Jeffery Wangi (2006) N3016 (Cannings J). In the present case the offender was not charged with any circumstances of aggravation. The indictment did not state that there was an existing relationship of trust, authority or dependency. Though that aggravating factor was amongst the facts to which the applicant pleaded guilty, the failure to charge him with that circumstance means that the maximum sentence was not life imprisonment but 25 years imprisonment. We find, with respect, that the learned trial judge misdirected himself.
DID THE TRIAL JUDGE ERR BY SENTENCING THE APPLICANT BASED ON PREVIOUS INCIDENTS TO WHICH HE DID NOT PLEAD GUILTY?
33. His Honour made the point on two separate occasions in his judgment and when addressing the applicant that the applicant had committed the same offence previously. In the judgment, his Honour stated:
The worst aggravating factor in this case in my view is that the accused had perpetrated this heinous crime several times in the past. The evidence of the victim is that this started in 1999 when she was 10 years old and doing grade 1 in school. She was unable to recall the date, however, she was told that if she told anyone she would be killed. So another circumstance of aggravation is the threat to kill her. The victim said this happened to her several times between 1999 and 2003 until the victim revealed the incident of 9 July 2003, which led to his arrest and the subsequent charge. So the abuse continued for almost four years undetected until 9 July 2004.
34. In another part of the judgment, his Honour stated:
While the accused has expressed remorse, it is my view that such remorse will not restore the victim to her original status as a young virgin girl. She was robbed of her virginity at 10 years and that was perpetrated by none other than the stepfather who had an obligation both morally and legally and also customarily to protect the victim.
35. Addressing the applicant directly, his Honour stated:
Your case is worse because you first had sexual intercourse with her when she was 10 years old and you continued until – that was in 1999. She was in grade 1 in school and you continued until 2003, the last time she reported the matter to her mother. So you abused the child. It is your duty to protect her. You did not protect her, you started abusing her in 1999. ... You started to have sex with her when she was 10 years old. So you robbed her of her virginity.
36. With respect, we consider that his Honour should not have made the above statements as the applicant was not charged with any offences other than that to which he pleaded guilty: the offence committed on 9 July 2003. As an accused who pleaded guilty he had a right to be sentenced according to the allegations put to him on arraignment. Aggravating factors that arise from the trial judge's consideration of the depositions should be disregarded unless perhaps where they are clear and non-contestable.
37. In Saperus Yalibakut v The State (2006) SC890 the Supreme Court reaffirmed that the following principles apply when sentencing an accused who has pleaded guilty:
38. In the present case the learned trial judge went beyond the facts to which the applicant pleaded guilty. The applicant was not given the benefit of the doubt on the issue of whether he had been abusing the victim for almost four years, starting in 1999 when she was ten years old. The issue of whether there were any previous incidents was not raised by the prosecutor (who made no submissions on sentence). It was alluded to by the defence counsel when he made the startling concession that the incident had been perpetrated more than once. However, we do not think it was right or proper for the defence counsel to say such a thing when his client had not been given the opportunity to comment on it. With respect, we consider the trial judge should not have accepted what the defence counsel said.
39. The applicant had no opportunity to rebut the very serious allegations, indeed findings, made by the trial judge. Moreover his Honour made his findings on the basis of an unsworn and untested statement by the victim, a child who, at the time of making the statement, was 14 years old in grade 5 at school. In his police interview it was put to the offender that he had been having sex with the victim since 1999 and had threatened that if she told anyone she would be hurt. He denied the allegation. He admitted committing the offence once on 9 July 2003, explained why he had done it (because he was angry for not being respected by the girl's biological father and relatives) and was adamant that he had only done it once.
40. We find that his Honour, with respect, made an identifiable error by sentencing the offender as if he were guilty of previous offences, to which he did not plead guilty, and failing to give him the benefit of the doubt on aggravating factors.
DID THE ERRORS VITIATE THE EXERCISE OF THE TRIAL JUDGE'S DISCRETION?
41. We have identified two errors in the exercise of the trial judge's discretion: misinterpretation of the maximum penalty and taking account of previous alleged incidents of abuse. Before we address the extent, if any, to which these matters affected the sentence, we state that we consider that his Honour made no other errors in the exercise of his discretion.
42. His Honour properly emphasised that sexual penetration of young girls is a prevalent crime in Manus, requiring strong deterrent sentences. His Honour justifiably considered that the offender, being the victim's stepfather, was in effect her father and therefore guilty of a serious betrayal of trust. The victim was only 14 years old and there was a large age gap of 25 years between her and the offender.
43. However, when we turn our mind to the errors that we have identified, they were serious errors, which vitiate the exercise of his Honour's discretion. In light of the principles in Norris's case explained earlier we have moved to step No 3 of the decision-making process. We are obliged to quash the sentence and pass a substitute sentence. It is unnecessary to proceed to step Nos 4, 5 or 6. We are of the opinion that a less severe sentence is warranted in law and should have been passed. In deciding by how much the original sentence should be reduced, we remain influenced by the gravity of offence committed by the applicant. We will quash the sentence of 20 years and pass in substitution for it a sentence of 15 years imprisonment.
PLACE OF DETENTION
44. Under the Constitution, Section 37(20), a prisoner has a right to be detained in custody close to where his relatives reside. That right should be enforced in this case. We will order that the applicant be returned to Manus.
JUDGMENT
45. We will make an order in the following terms:
Judgment accordingly.
_____________________
Lawyer for the applicant: Self-represented
Public prosecutor: Lawyer for the Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2007/49.html