SC2296

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 25 OF 2022

DOWNES KORIBISENI
Applicant

-V-

THE STATE
Respondent

Alotau:  Yagi J, Kariko J & Bona J
2022: 24th & 25th August

CRIMINAL LAW – application for review of sentence – s 155(2)(b) Constitution – sexual penetration, s 229A(1) & (3) Criminal Code – sexual touching, s 229A Criminal Code - whether sentence manifestly excessive – whether allegations of other similar offences wrongly considered - no reference to comparative sentences –concurrent or cumulative sentences – totality principle

The applicant was convicted upon his guilty pleas to an indictment containing one count of sexual penetration of a female child aged about 9 years and a separate indictment alleging one count of sexual touching of another female child aged about 9 years. He was sentenced to 15 years imprisonment for the first offence (to be served cumulative upon a previous sentence) and 7 years imprisonment for the other offence (to be served cumulative upon the sentence of 15 years). He seeks review of the sentences pursuant to s 155(2)(b) Constitution. 

Held:

1.	Where an offender has pleaded guilty, a sentencing judge must apply the facts to which the offender pleaded. 
2.	For a prior conviction to be considered an aggravating factor for the purpose of sentencing, the prior conviction must be for an offence committed before the offence under consideration.
3.	A judge shall give reasons or his decision and where no reason is provided the law will deem that there is no good reason.
4.	Concurrent sentences may be appropriate even if there are different victims where the offences are committed in the course of a single transaction. 
5.	The total sentence must be appropriate considering the totality of the applicant’s criminal behaviour. 
6.	Application for review upheld.

Cases Cited:

Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314
Ben Wafia v The State (2006) SC851  
Ju Maima v The State (2016) SC1504
Mase v The State [1991] PNGLR 88
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747 
Public Prosecutor v Kerua [1985] PNGLR 85 
Sabiu v State (2007) SC866 
Yalibakut v The State (2006) SC 890 

Counsel:

Mr F Kirriwom, for the Applicant
Mr D Mark, for the Respondent

APPLICATION

This is an application for review of sentences.

25th August, 2022

1.	BY THE COURT: The applicant was tried separately on two indictments, and he pleaded guilty to the charges contained therein and was duly convicted. The first indictment contained one count of sexual penetration of a female child named BR aged about 9 years (contrary to s 229A (1) & (2) Criminal Code), while the second indictment alleged one count of sexual touching of another female child named VK, aged about 10 years (contrary to s 229B (1)(a), (4) & (5) Criminal Code). 

2.	He was sentenced to 15 years imprisonment for the first offence (to be served cumulative upon a previous sentence imposed by Toliken J on 14 July 2020) and 7 years imprisonment for the second offence (to be served cumulative upon the sentence of 15 years). 

3.	He seeks a review of the sentences imposed pursuant to s155(2)(b) Constitution. 

FACTS

4.	The applicant was a teacher at Wamawamana Elementary School, Alotau District. The victims of the offences were female pupils of his class. While the exact dates of the offences are not known, it was alleged they occurred on a date before July 2016. The offences were committed on different occasions when the applicant and the girls were alone with him in the classroom.

5.	In relation to the first indictment, the charge was for sexual penetration of a child under 12 years of age, and when there existed a relationship of trust. It was alleged the victim was called into the classroom and told to lie down, and the applicant inserted his finger into her vagina.

6.	The second indictment contained a charge of sexual touching of a child under the age of 12 years and there existed a relationship of trust. The State alleged that the applicant touched the victim’s vagina with his fingers when he was alone with her in the classroom.     

SUBMISSIONS

7.	In his application for review, the applicant argues that the sentence of 15 years is not justified and that the total sentence to be served of 29 years is manifestly excessive. 

8.	He contends that the trial judge improperly considered facts to which the applicant pleaded guilty, and that the totality principle was not properly considered and applied, resulting in the aggregate of the sentences being a crushing one and therefore manifestly excessive. 

9.	The State counters that the applicant has not demonstrated any identifiable error in the exercise of the sentencing discretion by the trial judge – the irrelevant” factors referred to by the applicant were in fact not considered by the trial judge in deciding sentence, and there was reference made to the totality principle.  

LEGAL PRINCIPLES

10.	For the relevant legal principles to be applied in deciding this application, we refer to Ju Maima v The State (2016) SC1504 and Ben Wafia v The State (2006) SC851.  

11.	The applicant in a review of a sentence, is in the same position as a person appealing against the sentence, and so he must show that the primary Judge either made an identifiable error that has the effect of vitiating the sentence or that the Judge imposed a sentence that was obviously (not merely arguably) excessive; Ju Maima v The State (supra). 

12.	The legal principles in relation to an appeal against sentence, are well settled. The Supreme Court in Ben Wafia v The State (supra) stated them this way:

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: William Norris v The State [1979] PNGLR 605.

IRRELEVANT MATTERS

13.	We accept the submission that the trial judge erred by improperly having regard to allegations of other similar sexual offences against the applicant. 

14.	We note that in the committal court depositions: 
•	The statements of the victims BR and VK contain allegations of several other sexual offences committed by the applicant on each of them, and 
•	The police witnesses in their statements mention pending investigations into alleged sexual offences committed by the applicant on other female pupils at the school. 

15.	In the judgement on sentence in respect to the sexual penetration charge, his Honour stated:
	
Although he has not charged with one count of sexual penetration on the victim, the statement she made to the police dated 1 July 2016 shows he had committed similar acts of sexual penetration on that same victim on several occasions in the same office, the same year. And so in my view he is a child sex predator. He was previously convicted by the Alotau National Court for committing similar offence on minora and he is serving these sentences at Giligili jail.

On the file are statements of some victims and they are part of the committal depositions presented to court by the State Prosecutor. He is yet to be investigated and charged with sexual offences. 

16.	In relation to the sexual penetration charge, his Honour stated:
	
In my view, he is a sex predator engaged in sexual activities with female students whose ages range from 10 to 12 years. There are complaints from other female students attending the same school against the prisoner and police are yet to investigate those complaints. In this case, he will be sentenced for this offence alone and not those yet to be investigated by the police, So this is the reason why he is being called a sex predator. It is not only one child, almost most of the young girls at the school. 

17.	With respect, we consider the conclusion that the applicant is a “sex predator” is not properly established by facts. Where an offender has pleaded guilty, a sentencing judge must apply the facts to which the offender pleaded; Yalibakut v The State (2006) SC 890 . The applicant did not plead guilty to the other allegations contained in the victims’ statements to the police. Furthermore, the complaints of similar offences under police investigation were not relevant matters for consideration. While the trial Judge mentioned that he would not consider the other alleged offences, it appears that his Honour was nevertheless influenced by these matters and unduly weighed them against the applicant. In this regard, his Honour erred in law.

PRIOR CONVICTION

18.	In deciding sentence, the trial Judge also referred to a conviction of the applicant by Toliken J on 14 November 2019. For a prior conviction to be considered an aggravating factor for the purpose of sentencing, the prior conviction must be for an offence committed before the offence under consideration. In this case, the prior conviction against the applicant was for sexual touching (committed upon another female pupil at the same elementary school on or about the same time as in the present cases). We find that his Honour erred in law and fact in viewing the prior conviction as an aggravating factor.

NO REASONS

19.	The trial judge also erred in not giving reasons as to:

(i)	why he deemed as appropriate the sentence of 15 years imprisonment for the sexual penetration offence; and 

(ii)	why each of the sentences were ordered to served cumulative upon the previous sentences.

20.	Counsel cited several cases for comparative sentences. Defence counsel suggested sentence of seven years imprisonment for each offence while the prosecution submitted for a starting point of 10 years imprisonment for sexual penetration and made no submissions regarding the offence of sexual touching. 

21.	The trial Judge made no reference to these cases or any other case authorities for comparative sentences before imposing the sentences he did. He merely referred to the seriousness of the offences, the other complaints of sexual abuse by the applicant, and the prior conviction before pronouncing the term of years of imprisonment and that they be served cumulatively upon the previous sentence. 

22.	The courts have held that where no reason is provided the law will deem that there is no good reason; Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) SC797. This constitutes an error of law. 

APPROPRIATE SENTENCE

23.	We have given due consideration to counsel’s submissions and after balancing the relevant facts, the mitigating and aggravating factors, and having regard to Sabiu v State (2007) SC866 which recommends a starting point of 15 years imprisonment for the offence of sexual penetration (commonly penile penetration), we think that the type and extent of the sexual penetration in the present case (insertion of the finger once only and without force) warrants a sentence of 13 years imprisonment for the sexual penetration charge.   

24.	The sentence of 7 years imprisonment for sexual touching is the same as that ordered in the case tried by Toliken J which involved pleas of not guilty to two counts of sexual touching. See State v Korisibeni (2020) N8421. In the present case, the applicant pleaded guilty and to one count of sexual touching. Compared to the previous case, he should have a been given a lesser sentence. We think 5 years imprisonment as appropriate.

25.	As to the applicable principles in relation to considering whether sentences should be cumulative or concurrent, we refer to the Supreme Court cases of Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 which state that:

•	where two or more offences are committed in the course of a single transaction the sentences should be concurrent;
•	where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative; 
•	after deciding whether sentences should be concurrent or cumulative, the court must consider whether the total sentence is just and appropriate, and if it is not, the court must vary one or more sentences to get a just total (the totality principle).
 
26.	Counsel submitted that the sentences were correctly ordered to be served concurrently, as different victims were involved. While there were different victims, and therefore these offences and those dealt with by Toliken J would normally attract cumulative sentences, we note that all the offences were committed within a relatively short period, one after the other, and in the course of a single transaction or purpose, namely sexual abuse of pupils. In the circumstances, it would have been proper for the sentences to be served concurrently and we therefore find his Honour erred. 

27.	The total sentence to be served is therefore 13 years imprisonment, which we view appropriate considering the totality of the applicant’s criminal behaviour. 

REMARKS

28.	In cases such as the present concerning multiple similar offences by the same offender, the prosecution might carefully consider how it intends to proceed against the offender, and decide whether it is appropriate to: 
•	present separate indictments; or
•	present one indictment charging all offences, or 
•	present one indictment containing one or several of offences and have the court take into account the outstanding charges pursuant to under s 603 Criminal Code. 

29.	It seems to us that perhaps s 603 is not being utilized as often as it should be, and it could have been considered in the present case. Where there is multiple or a series of offences charged against an accused person, the procedure under s 603 is an available option for purposes of sentencing. The procedure benefits both the State and the accused. It is reasonable and convenient, and it allows for one comprehensive and adequate sentence for all offences admitted to by an accused person; See Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314. 

ORDER

(1)	We uphold the application for review.
(2)	The sentences imposed upon the applicant by the National Court at Alotau on 22 July 2021 are quashed and are replaced by the following:
(a)	For the conviction for sexual penetration contrary to s 229A Criminal Code, a term of imprisonment of 12 years in hard labour; and
(b)	For the conviction for sexual touching contrary to s 229B Criminal Code, a term of imprisonment of 5 years in hard labour, and
(c)	Both sentences shall be served concurrently with each other, and with the sentence of 7 years imprisonment imposed by the National Court on 14 July 2020. 
(3)	Fresh warrants of commitment reflecting the new sentences will be issued accordingly.

Office of the Public Solicitor: Lawyers for the Applicant 	
Office of the Public Prosecutor: Lawyers for the Respondent