SC1482

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 38 OF 2014

BETWEEN:

PETER CHARLIE
Appellant

AND:

THE STATE
Respondent

Kokopo: Kirriwom, Geita & Ipang, JJ
2015: October 26 & 30

SUPREME COURT – Appellant appeals against Conviction and Sentence of 20 years for one count of sexual penetration of a female child aged 10 years contrary to Section 229A(1)(3) of Sexual Offences and Crimes Against the Childrens Act, 2002.

SUPREME COURT APPEAL – Submission by appellant on grounds of appeal irrelevant and does not have any direct impact on grounds of appeal.

SUPREME COURT APPEAL – Supreme Court will not interfere or disturb a Conviction and Sentence imposed by a trial judge unless there is an identifiable error shown on the part of the trial judge

Cases Cited:
Wanosa & Ors v. Queen [1971-72] PNGLR 90
Pemu Muro v. State [2006] PGSC11; SC 842 (30 June, 2006)
John Beng v. State [1977] PNGLR 115
Ben Wafia v. State (2006) SC 851
William Norris v. State [1979]PNGLR 605
Rex Lialu v. The State [1987] PNGLR 487

Counsel:
Appellant in Person
P.Huygens, for the Respondent

JUDGMENT
 30 October, 2015
1. 	BY COURT: The appellant appeals against both his conviction and sentence by the National Court. He was convicted and sentenced to 20 years imprisonment on the 7th of November, 2014. He was convicted only on one (1) count of sexually penetrating a female child under the age of 16 years old then aged 13 years. At the time the offence was committed, the prisoner had an existing relationship of trust, authority and dependency. He was charged or indicted on one count contrary to s.229A(1)(3) of the Sexual Offences and Crimes Against Childrens Act 2002.
2. 	Initially before the National Court, the prisoner was indicted with four (4) counts of sexual penetration, however, through plea bargaining, the four counts were reduced to only one count. (Refer pp.15-28 of the Appeal Book). The appellant then pleaded guilty to one (1) count of sexual penetration. (Refer p.28 of the Appeal Book).
3. 	The brief facts upon which the prisoner pleaded guilty are as follows; on the 20th April, 2013 at the prisoner's dwelling house at Akun Compound at Tavilo, CCI Institution, the prisoner went to his house at around 2:00pm. He chased everyone out from the house except the victim, who was in the kitchen. Prisoner then went to the kitchen, put the victim down on the floor and sexually penetrated the victim without her consent. The step mother, Linda Peter, was suspicious came, peeped through the wall and saw the prisoner in the act of sexual intercourse with the victim so reported the matter to police. The victim was under the age of 16 years and there existed at that time, a special relationship of trust in that the victim is the daughter of the prisoner.
GROUNDS OF APPEAL
4. 	The appellant's grounds of appeal are: 
(i)	the appellant argues that his conviction was not based on all evidence that were before the Court. Appellant's view is that a voir dire trial should be conducted in relation to his arrest.

(ii)	Sentence of 20 years is too harsh in that the evidence was not properly presented before the Court.
PRINCIPLES ON APPEAL AGAINST CONVICTION AND SENTENCE
5. 	There are number of principles laid down by the Supreme Court to be followed when determining appeal against conviction and sentence. In relation to review of the discretion of the trial judge, the Court in Rex Lialu v. The State [1987] PNGLR 487 at p.495 stated:
"The primary role of the Supreme Court is to review the exercise of the discretion by the trial judge within the context of all circumstances in the particular case. In the course of dealing with the case, the Court will deal with general principles. These become the guiding principles to be applied in other cases."
6. 	Specifically in relation to appeal against conviction the Court in John Beng v. State [1977] PNGLR 115 stated:
"On an appeal against conviction, the Supreme Court must be satisfied that there is in all circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed."
7. 	In relation to appeal against Sentence, the Supreme Court in Ben Wafia v. The State (2006) SC 851 had stated:
"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."
8. 	Then in William Norris v. State [1979] PNGLR 605 at p.615 Kearney, J (as he then was) stated:
"The principle applicable is that the sentence imposed by the trial should not be disturbed unless the Appellant can show that an error had occurred which has the effect of vitiating the trial judge's discretion on sentencing."
9. 	The appellant must show or demonstrate that the trial judge erred or acted on wrong principle of law etc… See Wanosa & Ors v. Queen [1971-72] PNGLR 90; and also Muro v. State [2006] PGSC 11; SC 842 (30 June, 2006).
10. 	Prior to addressing each grounds of appeal, it is convenient that we re-visit part of the proceedings at the National Court commencing especially at the time when the initial indictment charge the appellant on four (4) counts of sexually penetration was presented.
BACKGROUND TO THE PROCEEDING AT THE NATIONAL COURT
 – PRESENTATION OF INDICTMENT

11. 	Much of the background relating to State's presentation of the indictment against the prisoner can be found on pages 19–29 of the Appeal Book. On page 19 of the Appeal Book, State presented the indictment charging the prisoner on four (4) counts of sexual penetration pursuant to s.229A(1)(3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Each count has been charged with circumstances of aggravation which is s.349(e) of the Code.
12. 	After the indictment was presented to the Court, charging the prisoner on four (4) counts of rape with aggravation and brief facts presented, the Defence Counsel, Ms. Kasa, sought an adjournment to briefly outline the brief facts to the prisoner before the prisoner's plea is taken. (Refer to paragraph 1 of the Appeal Book at page 22). 
13. 	After short adjournment, Ms. Kasa of counsel for the prisoner, at the National Court informed the Court that the prisoner has changed his instruction to plea not guilty to guilty. Ms. Kasa informed the Court that due to plea bargaining, the prisoner will plea guilty to one (1) count of sexual penetration and that was only to the fourth count (Refer Appeal Book at page 24, paragraphs 10-20).
14. 	The original indictment presented to the Court, charging the prisoner on four (4) counts of sexual penetration was formally withdrawn (Refer Appeal Book page 25, paragraphs 20-30).
15. 	An amended indictment charging the prisoner on one (1) count of sexual penetration was presented. (Refer Appeal Book page 26, paragraphs 20-30). After brief facts were put to the prisoner, the prisoner pleaded guilty to one (1) count of sexual penetration (Refer page 28 of Appeal Book paragraph 10). The prisoner's plea was then confirmed (Refer last paragraph on page 28 of Appeal Book).
16. 	The matter was then adjourned for Pre-Sentence Report (PSR) and Submissions on Sentence. Then the trial judge heard the submission on sentence by the Defence Counsel and the State Prosecutor. Subsequently, the trial judge sentenced the appellant to 20 years imprisonment. 
SUBMISSION BY APPELLANT
17. 	The appellant appeared in person, presented his typed submission and argued his appeal. The appellant raised three (3) issues in his submission and they are:
•	the NARI Security Guards entered his premises at CCI and took his family away at the time the offence was committed.

•	when he was in custody at Kerevat Correctional Institute (CIS) he raised the possibility of having the matter referred back to Law & Order Committee at CCI; and 

•	that he (the prisoner) was coached by his lawyer to changed his plea from not guilty to guilty.
REPLY BY THE RESPONDENT
18. 	Mr. P. Huygens of counsel for the Respondent addressed the court orally and relied on his Extract of Submission. He briefly outlined what actually transpired at the National Court when the indictment on four (4) counts of sexual penetration was presented. Thereafter, a short adjournment was sought by the Defence Counsel following which Defence counsel informed the Court of his client's wish to change his plea from not guilty to guilty. What immediately followed was the withdrawal of the indictment and then an amendment indictment charging the prisoner on one count of sexual penetration was presented on which the prisoner pleaded guilty and was convicted.
19. 	The Respondent therefore submitted that there can be no error found in the proceedings.
20. 	In relation to the second ground of appeal, the Respondent submitted that the trial judged in arriving at the sentence of 20 years imprisonment took account of all relevant facts and circumstances of the case, the applicable legislation, medical report, submission by both counsels, the mitigating and aggravating factors, the allocutus, the Antecedent Report and the relevant case precedents. Therefore, the Respondent submitted that there is no error on the part of the trial judge exercising his discretion with the sentence of 20 years imprisonment.
ANALYSIS ON GROUNDS OF APPEAL

(i)	Conviction was not based on all evidence that were before the Court

21. 	The appellant's conviction was based on his plea of guilty so there can be no argument on conviction. The appellant's appeal against conviction is therefore misconceived. The ground relied upon ia also baffling and we comment no further.

(ii)	Sentence imposed by the trial judge is too harsh
22. 	On this ground of appeal, the appellant appeals that a sentence of 20 years imprisonment is too harsh.
23. 	The evidence from the Court transcript and judgment dated 7th November, 2014 which is on page 52 of the Appeal Book, both the Defence counsel, Ms. N. Kasa and Mr. L. Rangan, made their respective submission on sentence. There was Medical Report and the Pre-Sentence Report (PSR) which the Court took in to account. The mitigating factors and aggravating factors were considered. The trial judge had addressed his mind on the appropriate penalty for the prisoner. Refer to page 61 of the Appeal Book. 
24. 	The trial judge applied the cases of State v. Peter Lare (2004) N2557, State v. Pennias Moke (No.2) (2004) N2635, State v. Eddie Trosty (2004) N2681; State v. Bianson Benson (2005) N2799 and State v. Joel Remi (2014) CR. No. 733 of 2012 (Refer pages 62 & 63 of the Appeal Book). The trial judge decided to follow Sawong, J in State v. Joseph Ureap CR. No. 292 of 2010 in which Sawong, J sentenced the prisoner to 20 years imprisonment for sexually penetrating his own daughter.
25. 	In arriving at a sentence for 20 years imprisonment for the appellant, the trial judge has considered all the relevant facts of the case, the applicable legislation (Criminal Code (Sexual Offences and Crimes Against The Childrens Act 2002), and other factors as we have alluded to earlier.
26. 	We find the appellant has not shown any identifiable error on the part of the trial judge. This is a very bad case of sexual penetration involving serious betrayal of trust between father and his biological daughter. We find the trial judge made no error when exercising his sentencing discretion to impose this sentence. In our view the sentence of 20 years imprisonment will obviously deter the appellant from repeating the same offence and will also deter potential like-minded persons who will like or think about committing the same offence in the near future. 
27. 	We therefore, dismiss the appeal and confirm the conviction and sentence of 20 years imprisonment.
ORDER

1.	Appeal is dismissed.
2.	Conviction and Sentence confirmed.
_________________________________________________________________
Appellant appears in Person
Public Prosecutor: Lawyer for the Respondent