SC2546

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 9 OF 2022

NICKSON PALAM
Applicant

V

THE STATE
Respondent

Waigani: Mogish, Berrigan & Carey JJ
2024: 26th & 28th March

CRIMINAL LAW – PRACTICE AND PROCEDURE - Review by Supreme Court of decision of National Court – Whether conviction unsafe or unsatisfactory – Whether sentence of 15 years of imprisonment manifestly excessive. 

The applicant sought review of his conviction for sexual penetration of a child, contrary to s 229A(1), Criminal Code on the basis that the trial judge failed to consider inconsistencies in the State’s case. The applicant further contends that his sentence should be reduced from 15 years to 10 years of imprisonment. 

Held:

(1)	The conviction was neither unsafe nor unsatisfactory. The trial judge considered the inconsistencies in rendering her verdict, none of which were material. 

(2)	There was no identifiable error in the exercise of the sentencing discretion. Considering that the maximum penalty for the offence of sexual penetration of a child contrary to s 229A(1) of  the Criminal Code is 25 years of imprisonment, and having regard to the aggravating factors present, the applicant failed to establish that the sentence of 15 years of imprisonment was manifestly excessive.

Cases Cited:

Papua New Guinean Cases
John Beng v The State [1977] PNGLR 115
Ano Naime Maraga & 2 Ors v The State (2009) SC968
Kandakason v The State (1998) SC558
Balbal v The State (2007) SC860
Karo Gamoga v The State [1981] PNGLR 443
Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942
Michael Tenarum Balbal v. The State (2007) SC860
Waranaka v Dusava [2009] PGSC 11; SC980
RD Tuna Canners Ltd v Sengi (2022) 
William Norris v The State [1979] PNGLR 605
Wera v State (2023) SC2367
State v Namaliu (2020) N8506
Sabiu v State (2007) SC866

Overseas Cases
Driscoll v R (1977) 137 CLR 517
R v Salih (2005) 160 A Crim R 310

References Cited
Sections 229A, 351 of the Criminal Code
Section 23(2) of the Supreme Court Act

Counsel:
N. Hukula, for the Applicant
E. Kave, for the Respondent/State

28th March 2024

1.	BY THE COURT: The applicant, Nickson Palam, was convicted of one count of abducting and one count of sexually penetrating a child under the age of 16 years (then 13 years of age), contrary to ss 351(1) and 229A(1) of the Criminal Code, respectively.  

2.	The Court found that the applicant abducted the complainant at night on New Year’s Eve and took her through a gate to a platform on his block of land where he sexually penetrated her.  He was sentenced to one year, and fifteen years of imprisonment, respectively, to be served concurrently.

3.	The applicant was granted leave to apply for review of both conviction and sentence.

CONVICTION  

4.	The applicant contended in his grounds of review that the trial judge erred in law and fact when she: a) did not take into account all of the inconsistencies in the State’s evidence; and b) convicted the applicant in the absence of a medical report. 

5.	It is convenient to deal with the contention that there was no medical evidence first. That contention was effectively abandoned during submissions and is clearly contrary to the record. 

6.	There was no dispute at trial and the medical evidence confirmed that the complainant was sexually penetrated.  The complainant suffered bruising to her face and bruising and lacerations to her vagina.   The critical issue in the case was the identity of the alleged perpetrator and the complainant was the critical witness in that regard. 

7.	The principal issue on the review of conviction is whether the finding by the learned trial judge that it was the applicant who sexually penetrated the complainant was unsafe or unsatisfactory.  

8.	The case was one of alleged recognition, the applicant being well known to the complainant.  

9.	As to reliability, whilst the principles in John Beng v The State [1977] PNGLR 115 were not expressly addressed by the trial judge, on the accused’s own evidence, and other evidence in the trial, there was sufficient light that night at the place at which the complainant was allegedly abducted for identification purposes.

10.	The critical issue was therefore one of credibility.

11.	The applicant relied on what he submitted were a number of prior inconsistent statements by the complainant. 

12.	It is well established that a trial judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events.  As a general rule a trial judge should identify the discrepancies in the evidence, say whether or not the discrepancies are significant and give reasons for their findings: Ano Naime Maraga & 2 Ors v The State (2009) SC968 at [24]. 

13.	It is also well established that a prior inconsistent statement does not of itself make a witness’s evidence unreliable: Kandakason v The State (1998) SC558.  It will depend upon the nature and materiality of the inconsistency.

14.	A prior inconsistent statement is a matter to be considered when assessing a witness’s credibility or reliability if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events: Driscoll v R (1977) 137 CLR 517.  A witness who makes a prior inconsistent statement is not necessarily lying.  As the Court observed in R v Salih (2005) 160 A Crim R 310, while dishonest witnesses may be more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details.  Furthermore, “[Q]uestions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive.  As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence: Balbal v The State (2007) SC860.  

15.	Returning to the present case, the main contention is that there were prior inconsistent statements by the complainant as to the location of the alleged offence.  In evidence she said that the offender took her through a gate and to a platform where he raped her. 

16.	The question put to the applicant by the investigating officer during the record of interview, which suggested that the offence took place on a “verandah”, with nothing more, was not evidence of any statement by the complainant.  Similarly, the medical practitioner was not cross-examined about the statements contained in her report to the effect that the child was dragged into the bush and grass. The complainant did not adopt those statements as her own. The trial judge nevertheless considered them and found them to be essentially consistent with the version of events given by the complainant in evidence that there was bush and grass around the platform.   

17.	Critically, there was no material inconsistency between the complainant’s evidence as to where the alleged offence took place and her prior police statement. Nor did she give a different version to police photographer, Samuel Koi, either as to the nature or location of the place at which the alleged offence occurred. Officer Koi confirmed in evidence that the platform the complainant identified to him was located in the applicant’s block.  That evidence was consistent with the evidence of another State witness and contradicted the applicant’s evidence in that regard. 

18.	As to whether or not the gate through which the complainant said she was taken by the applicant was chained at the relevant time, the trial judge considered the alleged inconsistency between the complainant’s oral evidence and her prior statement and found that there was none.  On the face of that material we see no error in the trial judge’s analysis. Nor are we of the view that the trial judge’s finding that it was possible for the applicant to pass through the opening in the gate in the circumstances described is glaringly improbable. 

19.	A finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where the decision at the trial was glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong: Karo Gamoga v The State [1981] PNGLR 443; Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942; Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980;  RD Tuna Canners Ltd v Sengi (2022). 

20.	The trial judge found the complainant to be credible.  She accepted the evidence of the State witnesses as to recent complaint, although in general terms it must be remembered that recent complaint goes only to the credibility of the complainant and not to the truth of the facts alleged. It is not clear to us that there was any real inconsistency in the evidence of the State witnesses as contended but the trial judge considered those matters and accepted the witnesses’ evidence having heard and observed them in the witness box. She was entitled to do so.

21.	It follows that the applicant has failed to establish that the verdict on the charge of sexual penetration of a child contrary to s 229A(1), Criminal Code should be set aside for being unsafe or unsatisfactory. 

22.	Before closing we note that no submission was made before us concerning the charge of abduction of girls under s 351, Criminal Code. It is neither necessary nor appropriate in the circumstances to consider the offence in detail. We do observe, however, that the statement of the elements of the offence in the trial judge’s decision are neither complete nor correct.  There is no need for the State to establish that carnal knowledge took place as required under s 350, Criminal Code. There are, however, other elements which must be established which were not expressly articulated nor considered in the decision.  Whilst there may have been some irregularity on the trial in this regard, we find on the evidence that there has been no miscarriage of justice and decline to set aside the verdict on that count: s 23(2) of the Supreme Court Act applied.

SENTENCE 

23.	An appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously (and not merely arguably) out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

24.	The applicant contends that the learned trial judge erred in finding that there was a relationship of trust when the evidence established that the applicant and complainant were only known to one another because they lived together in the same community.

25.	The State did not charge the applicant with committing the offence in circumstances of an existing relationship of trust, authority or dependency pursuant to s 229A(3) of the Criminal Code and the trial judge properly identified the maximum of 25 years of imprisonment accordingly. 

26.	It is true that there was no close familial relationship but there was no error in the trial judge’s finding that there was a relationship of trust. The applicant lived in the same community, was close friends with the complainant’s uncle and brother, and regarded the complainant as his little sister.  The trial judge was entitled to take into account the circumstance of aggravation in determining sentence within the permissible range of 25 years.

27.	There was no identifiable error in the exercise of sentencing discretion. The trial judge took into account all relevant considerations. 

28.	In our view, there was only one mitigating factor of any weight and that was that the offender was a first-time offender.  The offender was not obliged to and did not cooperate in any way with police warranting mitigation: Wera v State (2023) SC2367 at [16]; State v Namaliu (2020) N8506 at [55].  For obvious reasons, the fact that the applicant observed his bail conditions does not warrant mitigation.  The trial judge took into account that the applicant had paid some monies in compensation but it is also clear that he maintained his innocence and there was no true remorse.

29.	We wish to emphasise that the fact that the applicant did not use a weapon nor inflict physical injuries beyond those recorded in the medical report nor infect the complainant with some sexually transmitted disease nor cause her to fall pregnant are not matters warranting mitigation on sentence. They are simply not matters in aggravation.  To be clear whilst the presence or otherwise of such factors may be relevant when considering comparable cases they cannot properly be regarded as factors in mitigation.  

30.	The trial judge correctly identified the starting point for sentence as 15 years of imprisonment following Sabiu v State (2007) SC866. 

31.	Given the aggravating circumstances of this case, the age of the child, the age difference between the applicant and the complainant, the relationship of trust and the few factors in mitigation, the sentence cannot on any reasonable view be regarded as manifestly excessive. The trial judge might well have imposed a greater sentence.  Indeed had the State filed a cross-appeal we might well have imposed a greater sentence ourselves.  There was no such cross-appeal and the parties were not heard in this regard.  Few comparable cases were put before the Court.  

32.	Ultimately the question is not whether this Court would have imposed a different sentence but whether the sentence is obviously – not arguably – out of all reasonable proportion to the circumstances of the case.  We cannot make that finding.

33.	No submissions were made about the sentence imposed for s 351, Criminal Code, for which the maximum penalty is two years. In all the circumstances we find no error in the imposition of one year of imprisonment, to be served concurrently with the sentence for s 229A(1), Criminal Code.

34.	Accordingly, the applicant’s review of sentence also fails. 

35.	We make the following orders.

ORDER

1.	The review of conviction is dismissed.
2.	The convictions of the applicant are confirmed. 
3.	The review of sentence is dismissed.
4.	The effective sentence of 15 years of imprisonment is confirmed. 

___________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent