SC2716
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO.36 OF 2024

ROGER TALEI
Applicant

V

THE STATE
Respondent

ALOTAU: TOLIKEN J, LIOSI J, DOWA J
23, 25 MARCH 2025

REVIEW OF SENTENCE – sexual touching – sentence of 15 years – sentence exceeded maximum penalty prescribed in law – glaring identifiable error – trial judge’s sentencing discretion vitiated – review allowed – sentence quashed – substituted with sentence of 10 years less time in pretrial detention and period already served - Criminal Code Ch. 262, s229B (1)(a)(4)(5); Supreme Court Act Ch.37, 23 (4).

SENTENCE – prior conviction for similar offence – portion of sentence suspended on condition – probation – breach thereof – trial judge purportedly enforced breach of probation – reinstated suspended portion of sentence - sentences to run cumulatively – trial judge fell into error – breach of probation – proper procedure to enforce breach discussed – order quashed – Probation Act Ch. 381, s 20. 

Cases cited
Goli Golu v The State [1979] PNGLR 653 
William Norris v The State [1979] PNGLR 605
Lawrence Simbe v The State [1994] PNGLR 38
Michael Mikoro v The State (2015) SC1424
State v John Mai (No.2) (2017) N6629
State v James Elias (2020) N8393
State v Karl Pitpaia (2024) N10796

Counsel
C Namono for the applicant 
D Kuvi for the respondent

JUDGMENT

1.	BY THE COURT:  On 7 April 2021, the Applicant, Roger Talei was convicted on a guilty plea for one count of sexual touching with circumstances of aggravation contrary Section 229B (1)(a)(4)(5) of the Criminal Code (the Code). On 13 April 2021 he was sentenced to 15 years imprisonment. 

2.	In addition, the trial judge ordered the Applicant to serve a period of 3 years, 7 months and 8 days which was the suspended portion of a sentence for a prior conviction purportedly for breaching a condition of the suspension. This was to be served with the sentence of 15 years for a cumulative period of 18 years, 7 months and 8 days.

3.	The Applicant seeks to have that sentence reviewed. 

Background

4.	The Applicant is the maternal grandfather of the 8-year-old victim. On the date of the offence, the victim was walking along a bush track to visit her grandmother in another village when the Applicant called her to accompany him to the garden to pick pineapples. The victim followed him and along the track he removed her clothes and pushed her to the ground. He then removed his own clothes, laid on top of her and began rubbing his penis on her vagina. He was, however, disturbed by a passerby and fled the scene.

5.	The applicant did not appeal his sentence within the prescribed period of 40 days. However, on 16 May 2024, he applied for leave to review his sentence. Leave was granted by Cannings J on 17 May 2024. On 31 May 2024, the Public Solicitor filed this Review on behalf of the Applicant.
 
Grounds of Review

6.	The Application raised a single ground – that there was a serious error of law.

Relief Sought
7.	The Applicant sought the following relief –

(1)	That the Review be allowed.
(2)	The sentence of 18years 7 months and 8days be set aside.
(3)	Any other orders the Court deems fit.
The Law
8.	In an appeal or review against sentence, an appellant/applicant, must demonstrate that the trial judge made an identifiable error, whether in law or fact, or mixed fact and law which has the effect of vitiating the sentence. Where no error is identifiable, an error can be inferred if the sentence is out of all reasonable proportion to the crime. (Section 23 of Supreme Court Act 1974; William Norris v The State [1979] PNGLR 605; Michael Mikoro v The State (2015) SC1424.

9.	To fully appreciate what is required of an appellant or applicant to convince this Court to disturb a sentence, it is appropriate to quote fully from what Kearney J relevantly stated in William Norris (supra) said at pp. 612 and 613:
“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.
Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) [ now s 23 (4)] of the Supreme Court Act 1975), that a different sentence should have been passed; this is because there is no precise sentencing tariff.
To state in a notice of appeal as the only ground of appeal, that a sentence is manifestly excessive, when what in truth is relied on is an identifiable error, conceals the question which this Court will be asked to determine.”
ISSUES

10.	We proceed now to consider the ground of Review. The general issue raised here is whether there was a serious error of law. This, however, is premised on two equally important sub-issues.  They are:

1.	Whether the sentence of 15 years exceeded the maximum prescribed penalty for the offence of sexual touching.

2.	Whether the trial judge erred in ordering the sentence to be served cumulatively with his suspended sentence for a prior conviction.
  
Issue (1): Whether the sentence of 15 years exceeded the maximum prescribed penalty. 

11.	The maximum prescribed penalty for the offence of sexual touching with circumstances of aggravation under s 229B(1)(a)(4)(5) of the Code is 12 years.  The provision relevantly provides:
229B. SEXUAL TOUCHING.
 (1) A person who, for sexual purposes –
(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or
(b) …
is guilty of a crime.
Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.
(2) …
(3) …
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
(5) 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 to imprisonment for a term not exceeding 12 years.
12.	The Applicant contended that the trial judge committed an identifiable error in sentencing him to a term of imprisonment that exceeded the maximum penalty of 12 years.

13.	The Respondent (State) conceded this ground of Review. We also agree that the trial judge fell into a glaring error. He imposed a sentence that exceeded the maximum penalty prescribed in law. While the sentencing judge had wide discretion, this error vitiated the sentence he imposed. This ground of the appeal is therefore allowed. The sentence of 15 years must be quashed and set aside. 

14.	This necessarily take us to the next question – what should have been or should be an appropriate sentence for the Applicant?

15.	Section 23 (4) of the Supreme Court Act, Ch. 37, provides that “On an appeal against sentence, if the Supreme Court is of the view that some other sentence, whether less or more severe, is warranted in law and should have been passed, it shall quash the sentence and pass the sentence in substitution for it, and in any other case shall dismiss the appeal.”   

16.	We heard submissions by counsel on this issue. Mr. Namono submitted on behalf of the Applicant that an appropriate sentence ought to be 10 years.

17.	Mr. Kuvi, for the Respondent essentially agreed with a 10-year sentence. Counsel cited three cases involving 8-year-old victims where offenders were sentenced to 5 and 7 years. (See State v John Mai (No.2) (2017) N6629; State v James Elias (2020) N8393; State v Karl Pitpaia (2024) N10796)

18.	 It is trite that the maximum penalty is usually reserved for the worst instances of offending and that a sentence must reflect the circumstances of each case. (Goli Golu v The State [1979] PNGLR 653; Lawrence Simbe v The State [1994] PNGLR 38)

19.	So, is this a worst instance of sexual touching? We do not think that it is. However, there were factors that seriously and significantly aggravated the offence. These are:

(i)	The victim was a child below the age of 12 years. She was only 8 years old. 
(ii)	The Applicant stood in a very close position of trust and dependency in respect of the child. She was his own biological granddaughter. Therefore, there was a very serious breach of trust.
(iii)	The Applicant was not a first-time offender. He had been convicted for the same offence only 3 years prior to his current offence. He was sentenced to 5 years, of which he was ordered to serve 1 year while the balance was suspended upon him entering into a period of probation. He re-offended after he was released while on probation. He is therefore a repeated offender – a sexual predator or paedophile to it bluntly.
(iv)	He used his penis to sexually touch the victim’s vagina. For all we know he would have penetrated her if he was not disturbed.
(v)	Finally, this a prevalent offence.

20.	The Applicant’s guilty plea and his apology pale into insignificance when considered against the aggravating factors. The only thing that prevents us from treating this offence as a worst case, is the fact that he did not inflict any physical injuries on the victim.  

21.	We are therefore of the view that 10 years imprisonment would be an appropriate sentence given those circumstances. We do not think that a sentence in the range of the sentences imposed in the cases cited by Mr. Kuvi would be appropriate because the offenders in those cases were first-time offenders. 

22.	A sentence of 10 years is not a quantum leap but one that should give effect to Parliament’s clear intention – the protection of vulnerable children from all forms of sexual abuse and that offenders must be severely punished. Furthermore, it would serve to exact out of the Applicant and others who may be similarly inclined, respect for vulnerable children and their bodily autonomy, and for the law. In short, this sentence is for retribution or punishment and for personal as well as general deterrence.

23.	We therefore quash the sentence of 15 years and substitute it with a sentence of 10 years. The pretrial period and the period the Applicant had already served shall be deducted from the sentence of 10 years.

ISSUE (2): Whether the trial judge erred in ordering the sentence to be served cumulatively with his suspended sentence for a prior conviction.
 
24.	 Both counsel agree that the trial judge erred in this respect. We too agree that his Honour did in fact fall into an identifiable error. Again, in our view, he exceeded his jurisdiction or acted beyond his powers. 

25.	There is no question that the Applicant had breached his probation order. The proper thing for his Honour to have done was to take that into account as an aggravating factor only – a serious and significant one at that.  It was not for him, to use his own words, “activate” the Applicant’s suspended sentence in the proceedings before him ina summary manner.

26.	Mr. Kuvi submitted that it was for the State to commence the appropriate process to enforce the breach of the probation order either under Section 20 of the Probation Act Ch. 381, or by way of a Motion as the standing practice was prior to the Criminal Practice Rules 2022.

27.	We agree with counsel but note that the order was not given under the Probation Act but rather in the exercise of unfettered discretion under Section 19 of the Code. If it were the case, the Applicant would be charged for the breach under Section 20 of the Probation Act. Since it was not, then the proper course as submitted by Mr. Kuvi is for the State to file a Notice of Motion with a supporting affidavit, preferably by the Applicant’s Probation Officer, to enforce the breach and reinstate the suspended portion of the sentence. 

28.	This was not done; hence we quash the order of the trial judge to reinstate the suspended portion of the Applicant’s sentence of 17 March 2017. We also quash his Honour’s further order that this be served cumulatively with his new sentence. We recommend that the State takes the appropriate action to enforce the breach of the orders of 17 March 2017.

Conclusion

29.	Given the above, we therefore allow the Review and quash the orders of the National Court dated 13 April 2021.

Orders

1.	The Review is allowed.
2.	The order of the National Court dated 13 April 2021, sentencing the Applicant Roger Talei to 15 years imprisonment is quashed and substituted with a sentence of 10 years less the pretrial detention period and the period he had already served.
3.	The order of the National Court ordering the Applicant to serve the suspended portion of 3 years, 7 months and 8 days of his sentence of 17 March 2017 cumulatively with his 15 years sentence of 13 April 2021 for purportedly breaching of a condition of his suspended sentence is quashed.
4.	A fresh Warrant of Commitment shall be issued.
5.	The State is at liberty to commence appropriate proceedings to enforce the breach of the orders of 17 March 2017.

Ordered accordingly.
________________________________________________________________
Lawyer for the appellant:		L B Mamu, Public Solicitor
Lawyer for the respondent:	R Luman, Acting Public Prosecutor