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Sibona v State [2024] PGSC 144; SC2675 (20 December 2024)

SC2675

PAPUA NEW GUINEA
[IN THE SUPEREME COURT OF JUSTICE]

SCREV NO. 30 OF 2021

BETWEEN

KELLY SIBONA
Applicant

AND

THE STATE
Respondent

WAIGANI: BONA J, NAROKOBI J, TUSAIS J
30 NOVEMBER 2023, 20 DECEMBER 2024

CRIMINAL LAW – Supreme Court – Application for review of sentence s.155(2)(b) Constitution – Convicted of impersonation section 488 (1) Criminal Code, Robbery section 386 (1) & (2) (a) Criminal Code and three counts of rape, section 347 (1) & (2) with circumstances of aggravation under section 349A (b) &(d) Criminal code - Three cumulative sentences totalling 34 years – No error shown – Total sentence not manifestly excessive – Application for review dismissed – Sentence affirmed.

Cases cited:
Avia Aihi v The State (No.2) [1982] PNGLR 81
William Norris v The State [1979] PNGLR 605
Ju Maimai v The State (2016) SC1504
Ben Wafia v The State (2006) SC851
State v Mongi [2007] PGNC 135; N3259
Mugining v The Queen [1975] PNGLR 352
Mase v State [1991] PNGLR 88
Acting Public Prosecutor v Haha [1981] PNGLR 205
Public Prosecutor v Kerua & Ors [1985] PNGLR 85
Tremellan v The Queen [1973] PNGLR 116
Gimble v State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis and Others v The State (2000) SC564
State v Dai (2011) N5268

Counsel
Mr Giyomnawauri for the appellant
Mr. D. Kuvi & Mr N. Pare for the respondent

1. BY THE COURT: This is an application for review against sentence. The applicant was convicted by the National Court sitting at Waigani on one count of impersonation contrary to section 488 (1), one count of aggravated Robbery contrary to section 386 (1) & (2) (a) and four counts of aggravated rape contrary to section 347 (1) & (2) of the Criminal Code. He was sentenced on 9 August 2014 by Justice Mogish to three years for impersonation, eleven years for robbery and twenty years for each count of rape. Sentences for rape were made concurrent and ordered to be served cumulatively to the sentences for impersonation and robbery. No reduction was made to the total sentence of 34 years.
   
2. Leave was granted by Justice Cannings on the 13th of August 2023.
   

LEGAL PRINCIPLES

3. The law concerning a review against sentence pursuant to Section 155 (2) (b) of the Constitution is well settled in this jurisdiction: Avia Aihi v The State (No.2) [1982] PNGLR 81 44. The applicant in a review of a sentence, is in the same position as a person appealing against the sentence. The applicant must demonstrate 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 arguable) excessive: Ju Maimai v The State (2016) SC1504; Ben Wafia v The State (2006) SC851.
   
4. The legal principles in an appeal against sentence are well settled. The Supreme Court in William Norris v The State [1979] PNGLR 605 set them out as follows:
   

“ So the question in practice on a sentence appeal is usually this — has the appellant 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 error 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.”

5. In an appeal against sentence, the onus is on the appellant to persuade the Court that a more lenient sentence is warranted. He must show some error on the part of the primary judge in imposing that sentence. 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 access the proper sentence than is a court of appeal.
   
6. Sections 6 and 23 (4) of the Supreme Court Act provide that an appeal to the Supreme Court is a rehearing on the evidence given in the National Court and that the Supreme Court shall uphold an appeal if in its opinion some other sentence, whether more or less severe is warranted in law and have been passed, it shall quash the sentence and pass the other sentence for it, and in any other cases shall dismiss the appeal.
   

BACKGROUND

7. All of the offences were committed at a well secured, high rise apartment complex located in the prime residential area at Ela Beach, Port Moresby on the afternoon of 17 August 2011. The applicant dressed up in the uniform of a company named Ruswin and lied to the security guards that he was there to fix a faulty intercom in the unit occupied by the complainant and her husband. The applicant was an ex-employee of Ruswin and he had a grudge against the company for non payment of allowances. He also knew about the defective intercom units at Ela Beach Tower. The complainant, a Filipino woman was called down from another apartment in the complex where she was attending a gathering with her friends on the 11^th floor.
   
8. The complainant went back down to her apartment in unit number 5.3 located on the 3^rd floor. The applicant went up to the unit and the complainant let him in. The door of the apartment was left open. She carried the infant child of a friend while she waited in her living room for the applicant to fix the intercom. Applicant spent some minutes pretending to fix the faulty intercom before telling her that he could not fix it. He proceeded to close and lock the door turned around and pointed a knife at her and forced her to go into the bedroom. She left the baby on the table and went into the bedroom.
   
9. Inside the bedroom the applicant saw a laptop and told her to put it into a bag. Then the applicant ordered the complainant to remove her clothes and lie on the bed. He slept on top of her and inserted his penis into her vagina and had sexual intercourse with her. After a while he turned her over, put his penis into her anus and had sex with her. Next he removed his penis from her anus, forced it into her mouth and ordered her to suck it. Finally he put his penis back into her vagina and had intercourse until he ejaculated in her vagina.
   
10. When he finished having sex, the applicant tied the complainant’s hands and legs. He told her not to move and went around the apartment and stole a camera, three mobile phones and a Nintendo game before he left the apartment. Total value of properties stolen including the laptop was K8,400.
    

GROUNDS FOR REVIEW

11. The applicant contends that the sentencing Judge made an identifiable error by imposing cumulative sentences for offences which were all committed on the same victim. The main ground is that all the offences were committed at the same place, same time and against the same victim and so should be treated as ‘one transaction’.
    
12. Counsel argued that the trial Judge correctly ruled that the four acts of rape were perpetrated during the commission of other two offences of impersonation and robbery. Having said that his honour erred when he imposed cumulative sentences when he should have given concurrent sentences under the óne transaction rule’. Mr Giyomnawauri placed great reliance on the case of Mugining v The Queen [1975] PNGLR 352, a case of stealing as a servant and several counts of making false and fraudulent accounting. Trial Judge imposed cumulative sentences on all the offences but on appeal the Supreme court ordered that they all be served concurrently.
    
13. Applicant also argued that the sentence of 34 years was manifestly excessive in all the circumstances. It was argued that the different offences were not the worst of their kind and so it was suggested that concurrent sentences should have been imposed. Counsel referred to the case of Mase v State (1991) PNGLR 88 and urged the court to impose similar sentences in that case. Mase was sentenced to 8 years for robbery, 4 years for abduction and 10 years for rape. Sentences for robbery and rape were made cumulative resulting in 18-year final sentence. It was argued therefore that sentence of 19 years should be imposed in this case.
    

ISSUES

14. The issue in this case is firstly whether the trial Judge erred in imposing cumulative sentences. Second issue is whether the final sentence of 34 years is manifestly excessive in all the circumstances.
    

CONCURRENT / CUMMULATIVE

15. We start with the first issue of whether the sentences should all have been made concurrent to each other.
    
16. The basic principles of sentencing an offender convicted of multiple offences is to impose concurrent sentences if the victim is the same and the offences are the same in character. If there are separate victims and the offences are different in character then cumulative sentence is warranted.
    
17. The principles are set out in the cases of Acting Public Prosecutor v Haha [1981] PNGLR 205 and Public Prosecutor v Kerua & Ors [1985] PNGLR 85. In Kerua’s case, the Supreme court said at p 90:
    

“The first principle is what Thomas calls “the one-transaction rule”. Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117): ‘Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent...., sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.”

The facts of Tremelan’s case illustrate this rule. The counts were for stealing and for fraudulent and false accounting and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. .....

The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha’s case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible, it is a rule for guidance only and like the first rule is also subject to the totality rule.

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentence and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just an appropriate for the totality of the criminal behaviour.”

18. The sentencing Judge in this case referred to those principles when he decided to impose concurrent sentences on all four rape counts. That was proper because all the sexual acts were perpetrated on one victim at the same time and place.
    
19. Next is the sentence for robbery. We consider that there was no error in imposing cumulative sentence for rape and robbery. The two offences are separate and distinct even if committed at the same place and time as the robbery. Furthermore, the victim is not the only person who was robbed but also her husband and possibly her child as owner of the Nintendo game. Therefore, we are of the view that cumulative sentence is warranted as was done in Mase’s case.
    
20. The third offence is that of Impersonation. We do not agree with the applicant that this offence can be included with the two others under the one transaction rule. Applicant argued that this is because the victim is the same. Again we are of the view that there were more than one victim. The applicant used his disguise in Ruswin Company Uniform to deceive the security personnel at Ela Beach Tower apartment complex to let him enter the building. Once inside the premises he committed other crimes against the prosecutrix who is the other victim in this offence enabled by the crime of impersonation. It therefore becomes a separate standalone crime in and of itself. Thus, we do not find any error by the trial Judge in making sentence for impersonation cumulative on the sentences for robbery and rape.
    

MANIFESTLY EXCESSIVE

21. Are the individual sentences manifestly excessive? We do not consider that any of the sentences are in themselves out of range. The applicant did not refer the court to any cases to demonstrate that the individual sentences for the three main offences were excessive.
    
22. Sentences for robbery are classified into different categories. In the case of Gimble v State (1988 -89) PNGLR 271 the supreme court recommended tariffs in Robbery cases. On a plea of guilty by first time offenders carrying weapons and threatening violence:
    

(a) Robbery of a house – a starting point of 7 years
(b) Robbery of a bank – a starting point of 6 years
(c) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 5 years
(d) Robbery of a person on the street – a starting point of 3 years.

23. A decade later the Supreme Court further increased the sentencing tariffs by an additional three years in the subsequent case of Public Prosecutor v Don Hale (1998) SC564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC642. The current tariffs are as follows:
    

1. Robbery of a house – a starting point of 10 years
2. Robbery of a bank – a starting point of 9 years

100. Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 8 years

4. Street robbery - 6 years.
   

24. In this case the robbery was committed inside a dwelling house or residence. It is therefore classified as the most serious type of robbery. Sentence of 11 years is not far outside of that range. Courts have in fact imposed higher sentences in recent times because of the prevalence of this offence and the need for deterrence.
    
25. We are also of the view that 20 year sentence for rape is not manifestly excessive, Ju Maima v State (supra). This particular rape was aggravated by several serious aggravating factors. The offence was planned, motivated by payback, committed in the context of other offences and involved multiple acts of rape and violations. It involved the use of a weapon and threats.
    
26. The victim was violated in every possible way a woman can be raped. We take particular note of the third count of rape. There the applicant after placing his penis inside the victim’s anus withdrew it and forced the victim to suck it with her mouth. We are particularly repulsed by this depraved act because when his penis was placed inside the victim’s anus, it came into contact with human excrement or faecal matter and all the germs and harmful bacterial matter that are normally found in that part of the body. To intentionally put this matter inside a persons mouth is disgusting and perverted. In our opinion, sentence between 20 to 30 years for that kind of rape would not be excessive.
    
27. As for the sentence of impersonation, we do not find that the Judge erred in imposing three years. It is also not excessive in the circumstances.
    

TOTALITY OF SENTENCE

28. Should the trial Judge have adjusted the total sentence of 34 years to lessen the term to one that is not crushing on the applicant? We do not consider the total sentence of 34 years as crushing on the applicant. There are very few mitigating factors in this case apart from his lack of prior convictions. He pleaded guilty only after the victim had given evidence. The complainant flew back from the Philippines at her own expense to give evidence. Even though he pleaded guilty it was after the complainant’s evidence so he does not get the benefit of a reduced sentence that an early guilty plea would have entitled him to. Batari J in State v Dai (2011) N5268 remarked that where there is overwhelming evidence a late plea of guilty diminishes the value and weight to be given to the plea.
    
29. Her marriage suffered greatly as a result of the applicant’s serious violation of her. She separated from her husband after the rape. She continues to suffer mentally. Thirty-four years in the circumstances is just punishment and we will not disturb that sentence.
    
30. We make the following orders:
    
1. The review of sentence is dismissed.
2. The effective sentence of 34 years of imprisonment is confirmed.
   

Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Public Prosecutor