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Acting Public Prosecutor v Haha [1981] PNGLR 205 (2 July 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 205 - Acting Public Prosecutor v Konis Haha 

[1981] PNGLR 205

SC202

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ACTING PUBLIC PROSECUTOR

V

KONIS HAHA

Waigani

Kidu CJ Andrew J Kapi J Pratt J Miles J

26-27 May 1981

2 July 1981

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Powers of court on appeal - Discretion not unfettered - Pre-Independence Full Court decisions not followed - Supreme Court Act, 1975, s. 23[cccxvi]¹.

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Robbery with violence - Two counts - Cumulative sentences of 2˝ months - Also cumulative on 3 years for rape - Concurrent sentences of 2 years imposed - Principles applicable on discretion to make sentences concurrent or cumulative.

On an appeal against inadequacy of sentence by the State under s. 23 of the Supreme Court Act 1975 the Supreme Court does not have an unfettered discretion to vary the sentence appealed against and will only do so where it is clearly shown that the trial judge has fallen into error in the exercise of his discretion; and the principles to be applied are the same as those applicable when the question arises whether the sentence is excessive.

Griffiths v. The Queen (1977) 51 A.L.J.R. 749 at p. 757 and

R. v. Liekefett; Ex parte Attorney-General [1973] Qd. R. 355, approved.

The Public Prosecutor v. John Aia and Peter Pino [1978] P.N.G.L.R. 224 referred to.

Regina v. Pia-Afu [1971-72] P. & N.G.L.R. 393 and

Wanosa and Others v. The Queen [1971-72] P. & N.G.L.R. 90, not followed.

On appeal against sentences of two and one half months imprisonment on two counts of robbery with violence ordered to be served cumulatively and also cumulative on a sentence of three years for rape:

Held:

(Miles J. dissenting)

(1)      The sentences were so lenient as to indicate an error of principle and ought not to stand;

(2)      Taking into account the totality or aggregate sentencing principles, sentences of two years imprisonment should be imposed in respect of each count to be served concurrently, and cumulatively on the sentence of three years for rape.

Discussion by Kapi J. of the principles applicable in exercising the discretion to make sentences cumulative or concurrent.

Appeal.

This was an appeal against sentence, on the ground of inadequacy, by the Acting Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975.

Counsel:

K. Roddenby and L. Gavara Nanu, for the appellant.

C. Bruce, for the respondent.

Cur. adv. vult.

2 July 1981

KIDU CJ ANDREW J PRATT J:  The Acting Public Prosecutor appeals against sentences imposed by the National Court upon the respondent in respect of his conviction on 27th October, 1980, of two offences of robbery with violence. The respondent was sentenced to imprisonment with hard labour for a period of two and one half months on each count, which sentences were ordered to be served cumulatively upon each other and cumulative upon a sentence of three years imposed at the same time for the offence of rape.

The appeal is brought pursuant to s. 23 of the Supreme Court Act 1975 which provides that:

“23.    Appeal by Public Prosecutor Against Sentence.

(1)      The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.

(2)      In Subsection (1)—

‘sentence’ includes any order made on conviction with reference to the person convicted or his property.”

There is nothing in the words of this section which limits the exercise of the discretion conferred on the Supreme Court. In the pre-Independence case of Reg. v. Pia-Afu[cccxvii]² the then Supreme Court considered the effect of the very similar provision of s. 29(1) of the Supreme Court (Full Court) Ordinance, 1968 and concluded that on the hearing of such an appeal against sentence the then Full Court had an unfettered discretion to vary the sentence imposed by the trial judge. That case was regarded as having settled the law in this area and was followed in subsequent appeals by the Public Prosecutor by both the pre-Independence Supreme Court (Full Court) and by the post-Independence Supreme Court.

The court in Reg. v. Pia-Afu[cccxviii]³ found that although the Full Court had an unfettered discretion it would not interfere with the sentence pronounced by the trial judge unless it was clearly satisfied that the sentence should be altered and that it would give due weight to the opinion of the trial judge, and would recognize that the just sentence to be passed on an offender by a trial judge may depend on circumstances not apparent or available to the court of appeal. Reliance was placed on R. v. Beevers[cccxix]⁴ and Whittaker v. The King[cccxx]⁵.

It appears to us, with respect, that the court is saying first, that the discretion is unfettered and secondly, that it is to be exercised only in certain circumstances.

It has often been said that in an appeal by the Public Prosecutor the Supreme Court has an unfettered judicial discretion to alter sentences. Very similar provisions to s. 23 of the Supreme Court Act are in force in Australia and Whittaker v. The King (supra) was cited as an authority for this statement.

However in Griffiths v. The Queen[cccxxi]⁶ the High Court of Australia had cause to reconsider the effect of its own decision in Whittaker (supra) and Barwick C.J. at p. 757 said this:

“It has been said that this Court in Whittaker v. The King decided that the Supreme Court sitting as a Court of Criminal Appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.

“In my opinion, this Court decided no such thing in Whittaker v. The King. It is quite true that what was said by the Chief Justice and Powers J. in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J. or Higgins J. would do so. The remaining two Justices, Gavan Duffy J. and Starke J., in refusing special leave, said that the Court of Criminal Appeal ‘in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts’. This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the court acted was, in their opinion, the correct principle.”

The Chief Justice of the High Court then concluded:

“It seems to me that the misapprehension as to the effect of this Court’s decision in Whittaker v. The King had led to much more frequent appeals by the Attorney-General than might properly have been expected. Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the from in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle.”

For very similar reasons to those expressed by Barwick C.J. in Griffiths[cccxxii]⁷ the Queensland Court of Criminal Appeal in R. v. Liekefett, Ex parte Attorney-General[cccxxiii]⁸ also found that the judgment in Whittaker[cccxxiv]⁹ was no warrant whatsoever for the statement that the Court of Criminal Appeal had an unfettered discretion to alter sentences. That court disapproved of its earlier decision in R. v. Beevers[cccxxv]¹⁰ and found that on an appeal by the Attorney-General against any sentence pronounced, the Court of Criminal Appeal does not have an unfettered discretion of its own: the appeal is against the exercise of judicial discretion and should be determined by established principles. The principles to be applied in deciding whether a sentence is inadequate are the same as those applicable when the question arises of whether it is excessive.

This question was again argued before the Supreme Court in The Public Prosecutor v. John Aia and Peter Pino[cccxxvi]¹¹. Having referred to the principles laid down in Reg. v. Pia-Afu[cccxxvii]¹², Whittaker (supra) and the remarks of Barwick C.J. in Griffiths (supra), Raine D.C.J. approved of the analysis of Whittaker (supra) by Barwick C.J. but did not finally decide the point as in his view the appeal should have succeeded whatever test was applied. Wilson J. was of the view that if the Supreme Court was to be invited to overrule an earlier decision of the Supreme Court it was desirable that the court be constituted by more than three judges and if possible, the Chief Justice of the day should preside. Andrew J. was of the view that the weight of authority was now overwhelming that the appellate court should only vary a sentence, on an appeal by the State, where the trial judge had fallen into error in the exercise of his discretion and said that the Supreme Court should no longer follow the pre-Independence Supreme Court in Reg. v. Pia-Afu (supra).

In re-examining the reasons published by the court in Reg. v. Pia-Afu[cccxxviii]¹³, we think it is important to bear in mind several historical factors—

(a)      The court in Pia-Afu (supra) simply agreed with its earlier decision in Wanosa and Others v. The Queen[cccxxix]¹⁴ and continued to follow Whittaker v. The King[cccxxx]¹⁵. It appears that there were detailed submissions made by counsel in Pia-Afu[cccxxxi]¹⁶, upon which the court was able to deliberate.

(b)      The only written judgment dealing exhaustively with the court’s rights and duties under what is now s. 22(4) and s. 23(1) of the Supreme Court Act (appeals against sentence by the defendant and by the State) is that of Clarkson J. (with which Raine J. agreed) in Wanosa’s case[cccxxxii]¹⁷. The Chief Justice did not deal with the issue, probably because it was not properly before the court, and certainly it was not a matter which was relevant to the appellant’s case. It is difficult to imagine therefore that any of the appellant’s submissions were directed to the substance or effect of what is now s. 23 (1). His Honour therefore formulated certain views without the assistance of full argument.

(c)      Until the judgment of Barwick C.J. in Griffiths v. The Queen[cccxxxiii]¹⁸, it has generally been accepted that Whittaker (supra) supported the proposition that the court had an unfettered discretion in deciding appeals by the Crown on sentence. This was a “misapprehension as to the effect of (the) Court’s decision” (Barwick C.J. at p. 757). It would seem that, in common with courts of other jurisdictions, the pre-Independence Supreme Court was under a similar “misapprehension” which undoubtedly affected the approach of the Full Court to the whole problem.

(d)      The effect of such misapprehension was more than a mere mental conditioning. At the time the then Full Court handed down judgments in Wanosa (supra) and Pia-Afu (supra), decisions of the High Court of Australia were binding on the Supreme Court, and appeals still lay from the Full Court of the Supreme Court to the High Court. If therefore the Full Court were of the view that the majority judgments in Whittaker v. The King[cccxxxiv]¹⁹ established an unfettered discretion on Crown appeals against sentence, then it was bound by that interpretation whether it agreed with it or not. The only room for manoeuvre was an argument based on the proposition that the ratio of Whittaker’s case (supra) did not support such unfettered discretion, and the judgments do not indicate whether this aspect was considered.

Crown appeals against sentences have no traditional part in the administration of criminal justice under the common law. Appeals by the Crown against sentences imposed by judges at first instance do not exist in the United Kingdom. They exist in Canada, New Zealand and five of the six Australian States (Criminal Appeal Act, 1912 (New South Wales) s. 5D; Crimes Act, 1958 (Victoria) s. 567A; Criminal Code, 1924 (Tasmania) s. 401(2); The Criminal Code, 1899 (Queensland) s. 699A; The Criminal Code, 1913 (W.A.) s. 688(2)(D)): See R. v. Tait[cccxxxv]²⁰.

In each of the Australian States with a Criminal Code similar to our own and with a provision very similar to our Supreme Court Act s. 23 it has been held that upon the hearing of an appeal by the Attorney-General against any sentence pronounced, the Court of Criminal Appeal does not have an unfettered discretion of its own: the appeal is against the exercise of judicial discretion and should be determined by established principles. The principles to be applied in deciding whether a sentence is inadequate are the same as those applicable when the question arises of whether it is excessive: See R. v. Liekefett, Ex parte Attorney-General[cccxxxvi]²¹, R. v. Thomas[cccxxxvii]²² and R. v. Lawlor[cccxxxviii]²³.

Section 23 of the Supreme Court Act and s. 21 (which provides for a convicted person’s right of appeal against conviction and sentence) do not provide any basis for distinguishing between the general principles to be applied by the appeal court when determining an appeal in either case. The principles which limit the exercise by an appellate court of its jurisdiction with respect to a discretionary sentence apply in each class of case. See R. v. Tait (supra) and Kovac v. The Queen[cccxxxix]²⁴.

In Harris v. The Queen[cccxl]²⁵ the High Court considered an appeal against sentence under s. 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with a sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise.

An appeal against a sentence is an appeal from a discretionary act of the court responsible for the sentence and:

“The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.” Cranssen v. The King[cccxli]²⁶.

We agree with the reasons for judgment of Isaacs J. in Whittaker v. The King[cccxlii]²⁷ and would not depart from the settled law of appellate discretionary jurisdiction. The jurisdiction under s. 23 of the Supreme Court Act whilst discretionary, is an appellate power to control an order that is itself discretionary. The appellate court will not interfere with the primary judge’s own exercise of discretion unless it is shown that the judge has not exercised his discretion or unless he has done so under a clear mistake. The discretion under s. 23 must be exercised “according to law” or, in other words, judicially.

We are also in agreement with the remarks of Barwick C.J. in Griffiths v. The Queen[cccxliii]²⁸ that the views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. They are in reality in a better position to assess the proper sentence than is a court of appeal, error or breach of principle being absent.

Despite the fact that the Constitution gives decisions of the pre-Independence Full Court persuasive effect only, the present Supreme Court would only depart from the reasoning of the earlier judgment with the greatest reluctance. Certainty in the law is just as important as reform, and a departure from what has been accepted as legal principle for some time is only warranted where the present Supreme Court has come to a view that the early interpretation was clearly misconceived or that it is inapppropriate to the circumstances of the country. The interpretation which we place on s. 23(1) not only reflects what we appreciate to be the true legal position, but is one which is the most appropriate to the circumstances of Papua New Guinea. It might be said that the comparative lack of experience of some of our counsel and judges may be a justification for permitting greater latitude to the State, but in our view such an approach is not warranted. If such lack leads to a misapplication or omission of principle, then the remedy is there. Rather, the matter of experience may lead to a belief that because one’s views or opinions are different they are therefore necessarily right. For this latter reason alone, it seems to us more appropriate to Papua New Guinea circumstances that some fetter be placed on the State, at least to the same extent as that faced by a convicted appellant. The law as it presently stands may well be construed as a justification for appeal by the State merely because it has formed a different view to the trial judge, and thus an encouragement to lodge appeals with a greater frequency “than might properly have been expected”.

It follows that in our view this Court should no longer follow the pre-Independence Supreme Court in Reg. v. Pia-Afu[cccxliv]²⁹ and with the greatest respect for the views of Clarkson J. it is nevertheless our opinion that it is illogical and undesirable that a convicted person who desires to challenge his sentence must show some error or misunderstanding on the part of the trial judge whilst the State can invite this Court to substitute its view of the correct sentence.

In our view, on an appeal against sentence by the State under s. 23 of the Supreme Court Act 1975, this Court does not have an unfettered discretion to vary the sentence appealed against and will only do so where it is clearly shown that the trial judge has fallen into error in the exercise of his discretion. And the principles to be applied are the same as those applicable when the question arises of whether the sentence is excessive.

In the light of these principles we turn to the present appeal.

Briefly stated, the relevant facts are that the respondent and one other, who has not been brought before the court, attacked the two victims, a male and a female, at a place near Port Moresby. The victims were on their way to the Goldie River Army barracks when they were help up, threatened with a knife, robbed of K5 each and then whilst a knife was held at their throats, the female victim was raped by the respondent and his companion.

The respondent pleaded guilty to two charges of stealing with threats to use actual violence, the sum of K5. He also pleaded guilty to the charge of rape. It appears that separate indictments were presented at the same time, apparently by consent. No point is taken as to the propriety of such a course and as it appears to us that it has not led to any miscarriage of justice, we do not propose to deal with it.

The learned trial judge, in his judgment on sentence, said:

“Sentence;

2 1/2 months—1st count.

2 1/2 months—2nd count.

3 year —3 years.

“Total 3 years 5 months cumulative.

“The prisoner deserves more time in prison. However, when considering the evidence, the prosecutrix and her boyfriend invited this trouble. The soldier and his girlfriend got off (the taxi) not because they were short of money but to have sexual intercourse. They were caught in the act.

“The prosecutrix did not report the offence until the next day because her boyfriend prevented her from reporting it.

“The additional two counts are aspects of the same rape with violence. State is entitled to invoke the full vigour of the law, but it is not to be encouraged.”

In our view this judgment includes errors of fact and considerations which ought not to have affected the trial judge’s exercise of discretion in arriving at the sentence he did.

It is true that a submission was made to the trial judge that the accused believed, or that he held the view that the victims were engaged in the act of sexual intercourse when he first came upon them. This was denied by both victims. The only other evidence which could be relevant to this point was that both victims said they did not have sufficient money to afford the taxi fare from Port Moresby to the Goldie River Army barracks and that it was for this reason that they got out of the taxi. Yet the fact is they were in possession of K5 each when robbed. On this evidence alone it would not, in our view, reasonably be open to make a finding either that they got out of the taxi in order to have sexual intercourse or that they were in fact engaged in such an activity at the time they were attacked. Furthermore, the finding that this conduct invited the trouble amounts, in our view, to a consideration which ought not to have been taken into account. In our opinion, whatever one’s moral view of such conduct, it could not be fairly said that this could or should invite the offences of armed robbery and of rape. Yet it was this very finding which led the trial judge to reduce the sentence. In our view it is clearly shown that the trial judge has fallen into error in the exercise of his discretion and the sentence in itself is so inadequate as to be indicative of error.

It also appears to us that a further error was revealed by the finding that the prosecutrix did not report the offence until the next day, having been prevented by her boyfriend from doing so. This does not amount to a legitimate reason for a reduction of sentence and should not have been regarded as conduct which would mitigate any punishment deserved.

In our view the sentence was manifestly inadequate. The conduct of the respondent was violent in the extreme. The lives of the victims were threatened by the use of a knife. They were placed in extreme terror. They were robbed and the female victim was raped. The whole affair was an outrage.

It is essential that crimes of violence should be visited with punishment sufficiently severe to demonstrate the community’s concern that its members be allowed to live in peace and to demonstrate that the courts, for their part, will take whatever action is appropriate to deter others who might disturb that peace: See R. v. Prindable[cccxlv]³⁰.

In the result the trial judge’s sentence was so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others. It is thus the duty of this Court to determine the appropriate sentence which would produce such a result.

There has been no appeal against the sentence of three years’ imprisonment imposed for the offence of rape. But that offence arose shortly after the armed robbery and within a limited time. We would be unable to determine the appropriate sentence without reference to the whole incident. If the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require as to indicate an error of principle, the appellate court should intervene: See R. v. Prindable[cccxlvi]³¹.

We have taken into account the respondent’s comparative youth and his prior good character and record. We consider that the inherent gravity of the offence of rape on the one hand and armed robbery on the other and their separate nature, albeit committed within a short space of time, should lead to separate and consecutive sentences. Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’...

“The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases ‘the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive’. Bocskei (1970) 54 Cr. App. R. 519.”

See Principles of Sentencing, 2nd ed. by D. A. Thomas.

In the result we think that the appropriate order should require the respondent to undergo a custodial sentence of two years on each charge of stealing with actual violence, such sentences to be served concurrently but cumulatively upon the sentence of three years imposed for the offence of rape.

The judgment of the court is that the appeal be allowed and that the respondent be imprisoned upon each charge of stealing with violence for a period of two years with hard labour. Such sentences are to be served concurrently but cumulatively upon a sentence of three years imposed by the National Court at Port Moresby on 27th October, 1980, upon a charge that the respondent did on 8th August, 1980, in Papua New Guinea, commit rape upon one JL.

KAPI J:  I agree with the majority judgment in relation to the proper interpretation to be given to s. 23 of the Supreme Court Act 1963. The Public Prosecutor must show that there was error in the exercise of discretion by the court below. An error by the court below may be demonstrated in two ways. It may be demonstrated in the reasons for sentence on the treatment of facts or law or, in the absence of reasons, it may be inferred from the length of the sentence itself.

Counsel for the appellant criticized his Honour’s reasons on the basis that he allowed irrelevant factors to influence his mind when sentencing the accused on robbery offences. His Honour made the following remarks on sentence:

“The prisoner deserves more time in prison. However, when considering the evidence, the prosecutrix and her boyfriend invited this trouble. The soldier and his girlfriend got off (the taxi) not because they were short of money but to have sexual intercourse. They were caught in the act.

The prosecutrix did not report the offence until the next day because her boyfriend prevented her from reporting it.”

It is difficult to tell from this whether his Honour directed these remarks to the offence of rape or to the robbery offences. However, it is not necessary for me to determine this as I consider that two and one half months is inadequate for the offence of robbery in the circumstances of this case.

The sentencing task becomes more complex when more than one offence is included in the same indictment. In this case two separate indictments were dealt with together. One indictment contained one count of rape and the other indictment contained two counts of robbery. Whether or not this is permissible, these matters were dealt with together by consent.

Where a sentencing authority is faced with imposing sentence for more than one offence, it is important that the court approaches its task in the proper way.

Each offence under the Criminal Code is constituted by a wrongful act or omission. The Code stipulates the punishment for each offence. The court must treat each offence separately regardless of their relationship in time or kind. This is because the punishment provided is for different “punishable acts”. There is one exception to this and that is where the same “punishable act” constitutes two different offences (s. 16 of the Code. See Tapopwa Thomas v. The State.)[cccxlvii]³². Having fixed the punishment for each offence the court must next consider the aggregate (total) effect of sentences imposed for all the offences. This consideration relates more to the effective sentence to be imposed for offences related to each other in time and place. This does not relate to the proper sentence for the “punishable act” in each offences. Clearly if the offences were committed at different times and in different places the punishment would be imposed separately for each offence.

Under s. 20 of the Criminal Code, where a person is found guilty upon indictment, the sentence commences from the first day of the sittings of the court at which the person is found guilty. Under the same provision the court has power to make a sentence cumulative upon another. In exercising its discretion on whether the court should make sentences cumulative or concurrent, the task is not made easier as the principles of law are not clearly defined. In Tremellan v. The Queen[cccxlviii]³³ the majority state the principle in these terms:

“It cannot be said that the cases show any clearly discernible principle governing the making of sentences cumulative or concurrent. So much depends upon the facts of each particular case and the way in which the judge approaches the imposition of sentence. However, we feel that generally speaking sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.” (Emphasis mine.)

In Wari Mugining v. The Queen[cccxlix]³⁴ the majority of the judges accepted the general principle stated in Tremellan’s case (supra) but by no means as an inflexible rule. However a further consideration arose in this case: that is when the offences occur close together in time and place consideration must be given to whether they are different in character and involve different subject matter.

The Chief Justice in a recent case The State v. Kamo Bawai, Soga Gusi and Aputi Omui[cccl]³⁵ was dealing with two offences of rape and unlawful wounding. In applying the proper principles, his Honour said:

“In the present case the deceased was raped and then stabbed. She was not stabbed in order to be raped nor was she raped in order to be stabbed. That the two offences were related generally as to time and place is not questionable. However, they were committed one after the other—two different offences committed separately.” (Emphasis mine.)

No proper test can be deduced from the decided cases, however in exercising its discretion the court should have regard to the following matters:

(a)      whether or not the offences arise out of the same or closely related facts;

(b)      whether or not the offences are different in character and involve different subject matter;

(c)      whether or not the offences from part of each other in the manner they were committed.

Having come to a view, having regard to these considerations, the court should then have regard to the aggregate effect of the sentences. The final sentence must bear some proportion to the offences and the circumstances surrounding them. In other words, the final sentence must not be inadequate or excessive. Whether or not the aggregate effect of a sentence is inadequate or excessive depends on the facts of each case.

Applying these principles to the present case, there was no appeal on the sentence of three years for rape so it must stand.

In relation to the punishment imposed on the robbery case, I consider that two and one half months is inadequate. Crimes of violence, such as robbery, must be met with sufficient punishment to show the disapproval of the law of such unlawful behaviour. The circumstances in this case show that the victims were placed in a position of terror and threatened with a knife. They ran a real risk of injury if they refused to give in to the demands made or tried to fight back. The two and one half months imposed did not reflect these considerations. I infer from this that the trial judge fell into error. I would impose a penalty of two years for each offence.

I consider the two robbery offences as two distinct acts, however they relate much more closely to each other in the manner in which they were committed. In my view the first robbery had a lot to do with the second robbery. It could be said the second robbery was more easily committed because of the first robbery. Also, having regard to the amounts that were taken, it would be an appropriate case for making the two sentences for robbery concurrent rather than cumulative.

In relation to the sentence for rape, this is not only a separate offence in its nature but it could not be said that the robbery offences were committed in order to rape. Having regard to the serious nature of the two types of offence, a concurrent sentence in the circumstances would not be appropriate. A cumulative sentence would, in my view, reflect sufficient punishment. I would make the rape sentence cumulative upon two years for the robbery offences. I have come to this conclusion on the basis that three years is the proper punishment for rape as there was no appeal. However I would have imposed a much higher sentence for the rape. But I have not allowed this to be a reason for inflating the sentence for the robberies, or for making the robbery sentences cumulative on the rape sentence.

The effective sentence would then be five years in hard labour.

MILES J:  I have read the judgment of the majority of the court and agree with the reasons set out therein as they relate to the principles to be applied in appeals against sentence brought by the Public Prosecutor. I also agree that for the further reasons advanced the sentences of two and a half months imprisonment on each of the counts of armed robbery were inadequate and should be set aside.

The question of what sentence should be substituted is complicated by the fact that the Public Prosecutor has not appealed against the sentence of three years imprisonment for rape. One has to start with the premise that that sentence for rape was a proper one, although it was based on the same considerations as led to error in determining the length of the sentences for the robberies.

On an overall view the sentencing judge may have reached a right result for wrong reasons. He may have taken the view that starting with the sentence of three years for rape, and looking at the three offences generally, a total period of imprisonment of three years five months was desirable. On this basis his Honour may well have thought that the appropriate way to reach the desired result was to tack on to the sentence for rape two cumulative sentences for the robberies.

This method of implementation was wrong for a number of reasons. First, it involved the imposition of sentences for armed robbery which were too low in themselves. Secondly, it ignored a consideration of the proper principles as to whether the additional sentences should be served concurrently with or cumulatively upon the original sentence for rape. Thirdly, the sentences for armed robbery should not have been cumulative upon each other since they clearly arose out of the same series of events and were closely associated with each other.

It has been repeatedly and rightly said that a sentencing judge has to be very careful in applying the principles relating to sentencing for multiple offences and to be as clear as possible in the terms of the sentences imposed. One of the reasons would be that if for any reason one or more of the convictions were quashed, the whole pattern would be disrupted and the sentences for the remaining convictions might be quite inappropriate.

Mr. Roddenby submitted that the correct procedure for relating sentences for multiple convictions is as follows. The sentencing court should first arrive at what it considers to be an appropriate sentence for each offence making no allowance for the other convictions. Having arrived at a tentative decision about those sentences the court should then consider whether in the exercise of its discretion it will order that the sentences or any of them be served concurrently or consecutively. I agree. It is unfortunate that the sentencing judge did not have the assistance of submissions from counsel on the principles to be applied when exercising this discretion.

The power to order one sentence to be served consecutively upon another derives from s. 20 of the Criminal Code. At common law a sentencing court was not entitled to postpone the commencement of a sentence for felony: Thomas Castro v. The Queen[cccli]³⁶ and prima facie all sentences were to be served as from the time they were imposed. I would think that the postponement of the commencement of a prison sentence should only occur for good reason. At any rate it is now recognized that if the offences arose “out of the same transaction”, the sentences for those offences should be served concurrently. See Wari Mugining v. The Queen[ccclii]³⁷. Even if they did not, the court should nevertheless go on to consider whether the totality of all the sentences is in the circumstances excessive. “It is the totality principle which requires that when consecutive sentences are imposed a final review of the sentence is to be made by the Court to ensure that the total is not excessive”: The Public Prosecutor v. Terrence Kaveku[cccliii]³⁸ per Frost C.J. See also Secretary for Law v. Suares[cccliv]³⁹ per Prentice J. (as he then was).

This “totality” principle was expressed in an English case R. v. Bentham[ccclv]⁴⁰ in terms which explain it clearly:

“... when a man is being sentenced at the same time for a number of different crimes it is necessary, when fixing the length of each sentence, to take into account whether it is going to be made consecutive to or concurrent with other offences. Thus, when a man is being sentenced for, say, four separate burglaries, it is not unusual for him to be sentenced to three years on each count concurrent. While each count, considered alone, merits three years’ imprisonment twelve years would be too severe a punishment for the whole course of crime.”

It is permissible and in most cases necessary that if the totality principle shows the aggregate to be excessive, then the head sentence is adjusted upwards to some extent. It must not be increased however to take it beyond any statutory maximum, nor indeed should it be extended beyond what might be regarded as the top of the range for that particular offence in the circumstances of the particular case. Thomas (Principles of Sentencing (1979) 2nd ed., London, 1974, p. 59) says:

“... the aggregate sentence should not be longer than the upper limit of the normal bracket of sentences for the category of cases in which the most serious offence committed by the offender would be placed. This formulation would allow an aggregate sentence longer than the sentence which would be passed for the most serious offence if it stood alone, but would ensure that the sentence bore some recognizable relationship to the gravity of that offence.”

I refer to these English sources not because of their authoritative nature but because of the lack of previous local exposition of principle and because they assist in ensuring that the Papua New Guinea law on sentencing develops as a coherent system: Constitution Sch. 2.4.

Returning to the facts of the present case, it would have been appropriate for the sentencing judge to have regarded the facts surrounding the rape to have been so closely associated with the robberies to justify all sentences being imposed concurrently on the “one transaction” principle. As I have already said, the two robberies were so closely associated with each other that it was wrong to order the sentences for the robberies to be served cumulatively one upon the other. Although there are decisions in which appellate courts have held that on application of the “one transaction” principle a sentencing judge was wrong in ordering sentences to be served cumulatively, I have not been able to find any case in which an appellate court has upset the sentencing judge’s order that sentences be served concurrently.

In any event, the application of the “totality” principle to the present case requires that the sentences be served concurrently. The most serious aspect of the events which took place was the rape. According to the indictment the precise additional charges alleged against the respondent were robbery with threat of violence whilst being armed, offences under s. 398 of the Criminal Code. It was the threat of violence by the use of the knife accompanying the theft of the wallet which removed those offences out of the category of stealing. But that same aggravating factor of the threat with the knife was just as relevant to the charge of rape. Rape is generally more serious than robbery. Rape at the point of a knife is more serious than robbery at the point of a knife. Although both rape and armed robbery each carry maximum sentences of life imprisonment, the rape in this case deserves a heavier sentence than the robberies. Yet the sentence of three years for the rape has to be accepted as not inadequate. The Public Prosecutor has not appealed against it, nor has counsel for the respondent had any opportunity to reply to a suggestion, if it were made, that the sentence for rape was inadequate.

What the sentencing judge should have done in the present case, having determined provisionally that an appropriate sentence for the rape was three years, was to turn his mind to what was appropriate for the robberies. As they were less serious, they would attract sentences of less than three years, possibly two to two and a half years, concurrent with each other. The totality principle may then be applied. Would the three years for rape added to the two to two and a half years concurrent for each of the robberies, a total of five to five and a half years, be too severe a punishment for the course of those offences?

In my view it would be too severe. It would mean that the respondent, a young man now aged seventeen years, would be at least twenty-two when released from prison. The respondent has already indicated his propensity to be led astray by others. But he has no record of past misbehavior. The next few years are important if not critical in his development towards maturity. It is unrealistic to suggest that he is more likely to be deterred from future crime by five and a half years rather than by three years in prison. Other persons are more likely to be deterred from committing armed robbery by the sentence imposed for that offence than by an order that the sentence be fixed consecutively upon a sentence for another offence. It was said in Secretary for Law v. Suares[ccclvi]⁴¹ that “the denunciatory nature of a sentence is more apparent at least to persons other than the prisoner, if concurrent sentences of relatively substantial length are imposed rather than a series of minor sentences”.

It remains to be decided whether this Court may do what the sentencing judge might properly have done, that is, after deciding that the imposition of consecutive sentences would be inappropriate he should have revised his provisional decision on the sentence for the most serious offence, that is the rape, raised it to the three years five months which he considered to be appropriate overall, and then ordered the sentences for robbery to be served concurrently with the sentence for rape. But this Court is in no position to revise the three year sentence for rape for reasons to which I have already referred. It would be possible with the exercise of ingenuity to maintain the total sentence of three years and five months by, for instance, imposing that term in respect of one or both of the robbery convictions—but that would not be a proper application of principle in view of the relative seriousness of the rape when compared with the robberies.

My decision is in no way intended to imply that the total of the three years and five months was excessive. The result is however that the appellant’s total term of imprisonment is reduced by five months. The need for the application of proper principle is displayed by this very appeal. Mr. Roddenby properly informed us that the purpose of the appeal was to ensure the application of proper principle and not necessarily to ensure that the respondent spent a longer term in prison.

I would allow the appeal, set aside the sentences imposed on the first and second counts of the indictment alleging the offences of armed robbery, and in lieu thereof order that in respect of each count the respondent be sentenced to two and a half years imprisonment, such sentences to be served concurrently with each other and concurrently with the sentence imposed for the offence of rape charged in the other indictment.

Appeal allowed. Sentences of two years plus two years concurrent substituted for sentences of trial judge.

Solicitor for the appellant: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the respondent: A. Amet, Public Solicitor.