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Mase and John v The State [1991] PNGLR 88 (1 March 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 88 - Paul Mase and Kopa Lore John v The State 

[1991] PNGLR 88

SC404

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MASE AND ANOTHER

V

THE STATE

Waigani

Kidu CJ Amet Brown JJ

30 July 1990

24 September 1990

1 March 1991

CRIMINAL LAW - Sentence - Jointly charged offences - Cumulative sentences - Totality approach - Whether just and appropriate - Relevant considerations - Maximum penalties - Prevailing community perceptions of relative seriousness - General sentencing ranges - Totality of criminal behaviour.

CRIMINAL LAW - Appeal against sentence - Jointly charged offences - Armed robbery - Abductions - Rape - Whether individual sentences appropriate - Whether cumulative sentences appropriate - Totality of criminal behaviour - Total of 18 years reduced to 14 years.

On appeal against sentence of 10 years for rape, cumulative on eight years for armed robbery and four years for abduction, imposed on pleas of guilty,

Held

(1)      It is proper for a trial judge when sentencing to quote from the evidence of witnesses, either to emphasise the seriousness of the offence or to emphasise factors in favour of the accused person.

(2)      The individual sentences imposed for rape and armed robbery were within the range of sentences currently imposed by the National Court and were, in the circumstances, proper sentences.

(3)      (By Kidu CJ and Amet J) In applying the totality principle to jointly charged offences, the court:

(a)      must consider the appropriate sentence for each offence charged and then consider whether they should be concurrent sentences or cumulative sentences;

(b)      must, where sentences are made cumulative, consider whether the total sentence is just and appropriate;

(c)      must, if the total sentence is not just and appropriate, vary one or more of the sentences to get a just total.

Public Prosecutor v Sidney Kerua [1985] PNGLR 85 and Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214, followed.

(4)      (By Kidu CJ and Amet J) In determining whether the total sentence is just and appropriate the court:

(a)      may take into account the maximum penalties provided by law for each offence and whether or not each offence falls into the worst, most serious or less serious of its kind;

(b)      should ensure that the total sentence is not substantially above the normal sentence for the more serious (not the worst type) of the offence;

(c)      may have regard to the prevailing community perception of the relative seriousness of the different serious offences.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48 at 49, approved.

(d)      may have regard to the general sentencing ranges for other serious offences where totality of individual sentences for serious offences is obviously long;

(e)      must assure relativity between all the offences, their seriousness and criminal culpability so that the sentences imposed reflect, in principle, the relative seriousness of the offences and their consequences.

Rex Lialu v The State [1990] PNGLR 487 at 495, per Kapi Dep CJ, disapproved.

(5)      (Brown J dissenting) In the circumstances, the total sentence of eighteen years were not just and appropriate for the totality of the criminality involved and should be reduced to eight years for rape and six years for armed robbery making a totality of 14 years.

Cases Cited

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

Aubuku v The State [1987] PNGLR 267.

Gimble v The State [1989] PNGLR 271.

Kalabus v The State [1988] PNGLR 193.

Public Prosecutor v Sidney Kerua [1985] PNGLR 85.

R v Holder and Johnston (1983) 13 A Crim R 375.

R v Morley (1984) 13 A Crim R 431.

R v Tait [1979] FCA 32; (1979) 46 FLR 386.

Rex Lialu v The State [1990] PNGLR 487.

State, The v Polin Pochalon Lopai [1988-89] PNGLR 48.

Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230.

Appeals

These were appeals against sentences imposed on pleas of guilty for offences of rape, armed robbery and abduction.

Counsel

F Pitpit, for the appellants.

R Auka, for the respondent.

Cur adv vult

1 March 1991

KIDU CJ AMET J: The appellants pleaded guilty in the National Court to rape, armed robbery and abduction. The sentences imposed on them were ten years for rape, eight years for armed robbery and four years for abduction. His Honour, the learned trial judge, ordered that the sentence for armed robbery be served consecutively with the sentence for rape. So the sentence each appellant was ordered to serve was eighteen years less time spent by each in custody while awaiting trial.

Both appellants appealed against the total sentence they each received.

Mr Fraser Pitpit for both appellants very ably argued that not only were the individual sentences for rape and armed robbery excessive, but the total cumulative sentences for each appellant of eighteen years were also manifestly excessive.

SENTENCES FOR RAPE, ARMED ROBBERY AND ABDUCTION

The learned trial judge’s assessment of the sentence appealed against cannot be faulted; that is, the sentences of ten years for pack rape and eight years for armed robbery are both proper sentences. They come within the sentences that have been imposed by trial judges in the National Court in the last decade or so. The seriousness of the offences was quite properly emphasised by the learned trial judge by his quoting from the evidence of the two victims. Mr Pitpit sought to show that the course his Honour took was improper. He submitted that by doing this the trial judge showed his emotions, over-emphasised the seriousness of the offences and down-played the mitigating factors relevant to each appellant.

We consider that his Honour did not err in the course he took. It is usual for sentencing judges to quote from evidence of witnesses, either to emphasise the seriousness of the offence or to emphasise factors in favour of accused persons. It must be pointed out once again that, the more serious an offence is, the higher the sentence should be. As an offence approaches the worst type of category of its kind, mitigating factors, such as pleas of guilty, past good character and so forth, lose their significance in the sentencing process.

With respect to mitigating factors, his Honour did consider each of these factors raised by the defence and he said of each of them as follows:

“Firstly, that neither of you have prior convictions. It seems to me though that the fact that you have no prior convictions becomes very insignificant when considering penalty in such a serious case as this one.

Secondly, that both of you have pleaded guilty. That is an important point and I will take particular note of what the Supreme Court said in Aubuku v The State [1987] PNGLR 267. Your plea of guilty will save the victims from being cross examined, ie, publicly in the witness box and therefore not having to relive the nightmare that they went through. Needless to say, even a plea of guilty in a case as serious as this loses some of its weight.

Thirdly, that you co-operated with the police. Although I do note that you, Paul Mase, denied the rape at first. Your lawyer said that I should take note that you surrendered to the police but I also note from the record of interview that because of family pressure you had little choice but to surrender.

Fourthly, that you are young men. I take note of that but again I say that it become less important because of the facts of this case. The two victims did not have a chance against you. You were all young and strong (there are five of them). The victims were middle-aged. You cared not about their advancing years and attacked them in a pack in such a way that can only be described as cowardly and brutal. People such as you are usually strong in a pack. Either of you by yourself would probably not have the courage of a small child.

During your attack real threats were made on the lives of both the victims. That is with the gun and also knives. The female victim received a cut to her left hand. It indicates to me that you and your associates meant business and I am satisfied that the victims stood a very real chance of being murdered on the evening. The knife attack on the male victim is an example of that. It seems to me that it was only a matter of inches between life and death. He could have had his head separated from the body. The threats on the female victim’s life continued in the car before and after the time that she was raped. Your treatment of her can only make any real man feel sick in the stomach.”

So, contrary to the submissions by Mr Pitpit, the trial judge did deal with and considered the mitigating factors and took them into account in assessing the sentences he imposed.

The alcohol factor was also mentioned in mitigation but as far as I am concerned it could have no bearing on the sentences. If people drink liquor, get drunk and commit crime they must not expect leniency from the courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility. Such was not the case here.

We consider that the sentences for the rape and armed robbery are within the range of sentences that have been imposed by the National Court. We need only refer to the guidelines set out by this Court in Kalabus v The State [1988] PNGLR 193, Aubuku v The State [1987] PNGLR 267 and Gimble v The State [1989] PNGLR 271. His Honour the learned trial judge did not err in the application of these guidelines.

TOTALITY OF SENTENCES

It is clear from the judgment that the learned trial judge considered the totality principle for in his judgment he said towards the end:

“Your lawyer has asked me to consider the principle of totality and I do so. I must say this though that I have given serious consideration to a term of life imprisonment because of the enormity of the crime. But I have decided against it in particular because of your plea of guilty and the fact that most of the property has been recovered.”

This Court has already dealt with this principle in previous cases. In Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, the joint judgment of Kidu CJ, Andrew J and Pratt J contains the following, at 214:

"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." ...'

See D A Thomas, Principles of Sentencing (2nd ed, 1979).

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 sentence to be served concurrently but cumulatively upon the sentence of three years imposed for the offence of rape."

In Public Prosecutor v Sidney Kerua [1985] PNGLR 85, the Court said, at 91:

“The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences 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 and appropriate for the totality of the criminal behaviour.”

It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to 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. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.

In this case the decision under appeal shows quite clearly that the trial judge did not observe the sentencing principle mentioned above. It is explicit from the judgment that the appropriate individual sentences and whether or not to make any of them cumulative, were considered together and no consideration was given as to whether the total cumulative sentence of 18 years in each case was just and appropriate for the totality of the criminal behaviour. There is a clear error in this regard. Also it appears that the trial judge decided to make the sentences for rape and armed robbery cumulative before he determined the appropriate sentence for each offence. We consider that again the trial judge erred in application of the sentencing principles laid down by this Court. As we have already said (despite the errors we have found) the sentences for the individual offences are within the range of sentences for these offences. Mr Pitpit conceded that making two of the sentences cumulative was proper and we have no reason to disagree.

The question to be answered is whether or not the trial judge would have imposed the total sentences of eighteen years on each appellant if he had properly applied the totality principle to the case. How does a sentencing judge (a magistrate) arrive at a total sentence which is just and proportionate to the totality of the criminal behaviour involved in all the offences concerned? We do not consider that there is any hard and fast rule to be followed although it would be permissible for a sentencer to take into account the maximum penalties provided by law for each offence and whether or not each offence committed falls into the worst, most serious or less serious of its kind. Also the sentencer should ensure that the total sentence imposed is not substantially above the normal sentence for the more serious (not the worst type) of the offences. The rationale behind this is, we consider, common sense. Apart from the “worst type” of cases, where the maximum sentences are justified, in cases of “more serious type” an aggregate sentence might be too crushing, especially on young people like the appellants, or manifestly excessive.

In this case the trial judge should have assessed the total criminal behaviour of the appellants on the basis, inter alia, that they committed two offences which carry the statutory maximum of life imprisonment (that is, armed robbery and robbery); that these offences fell into the more serious (not the worst type) of their type; they also committed a third offence carrying the statutory maximum of seven years and that it is also of a more serious kind. The other more important consideration would then be the question whether the aggregate sentence exceeded the normal level of sentence for the most serious of the individual offences. The more serious of the offences in this case are armed robbery and rape and in both cases the normal level of sentences were imposed. By making the two sentences cumulative the result in the total sentence exceeded the rape sentence by eight years and the armed robbery by ten years — that is, it exceeded the normal level of sentence for the more serious type of rape by eight years and exceeded the sentence for the more serious type of armed robbery by 10 years.

Because the totality of such individually high sentences for serious offences such as rape and robbery are obviously long, we do not consider that it would be wrong in principle nor indeed inappropriate to make reference to and have some regard to general sentencing ranges in other serious offences.

We have in mind particularly homicide offences of manslaughter, murder and wilful murder.

Whilst we acknowledge that the elements of the offences and the circumstances and the punishable acts may differ markedly, we do not believe it is inappropriate to have some regard to the relative seriousness of the different serious offences. It is not wrong in principle to have regard to the prevailing community perception of the relative seriousness of the different serious offences. Indeed, it is in our view most appropriate to so have regard to the community perception of the relative seriousness of the different offences and to have it reflected in the level of sentences.

We consider therefore that Bredmeyer J was correct when he said in The State v Polin Pochalon Lopai [1988-89] PNGLR 48 at 49 that: “I believe the community regards manslaughter as more serious than rape.”

We also agree with the view expressed by Bredmeyer J (at 49) that: “... the tariff for manslaughter should be fixed slightly higher than for rape because death is a more serious consequence than the injury and trauma suffered in a rape.”

This is obviously an expression in principle; it cannot be a hard and fast rule. We do not believe this is meant to be a rigid rule, with the suggested range of sentences being fixed. We have ourselves individually expressed similar views and now restate them, that sentences for offences resulting in death, ought in principle to be generally higher than for offences against the person and property where no death results. Death of a victim is always a more serious consequence than offences against the person where no death results such as rape and robbery and offences of misappropriation.

And so in this case, when one pauses to review the total sentence of eighteen years, it is equivalent to the sentence normally reserved for a serious wilful murder. It is even higher that the average sentences of four and a half years to twelve years for manslaughter and murder. We remind ourselves that no victim has died in this case.

We believe that there must be some relativity between all the offences, their seriousness and criminal culpability and the sentences imposed must reflect, in principle, the relative seriousness of the offences and their consequences.

We do not mean by this that such relative regard and reference to sentences for other types of offences is to be used to determine the actual sentence for another offence. We therefore disagree with Kapi Dep CJ’s criticism in Rex Lialu v The State [1990] PNGLR 487 at 495 of Bredmeyer J’s relative analysis of manslaughter against rape in The State v Polin Pochalon Lopai.

In all the circumstances we consider that the total sentence of eighteen years was far in excess of what could be justified. They were not just and appropriate for totality of the criminal behaviour.

We have accepted that the individual sentences for the rape and armed robbery are within the normal range and we would not interfere with them. We accept also that the accumulation of the two sentences for the different offences of armed robbery and rape are, in principle, correct.

We consider that in these circumstances, the most appropriate course to take is to vary one or both of the head sentences to arrive at a “just total”. We consider that a just total sentence would be fourteen years and the appropriate variation should be of two years each from the respective sentences. Thus the sentence for armed robbery should be varied to six years and the sentence for rape varied to eight years.

We order accordingly.

BROWN J: I have had the benefit of reading the reasons given by the Chief Justice, Sir Buri Kidu and my brother Amet J. I agree with them where they address the submissions of the appellants’ counsel on the trial judge’s use of mitigating factors raised at the trial. I also agree with the majority that the individual sentences for rape and armed robbery are within the range of sentences recently imposed by the National Court. Further, the fact that such sentences have been made cumulative is correct. Robbery and rape, different in kind as they are, may quite properly be made cumulative.

Once cumulative, there still remains the last crucial look, as it were, at the total sentence to see if it is just and appropriate. This, I shall refer to, as the second leg. It is here that I disagree with my learned brethren for I consider the sentence should stand. I believe so when I have regard to the total criminality of the offences described and found by the trial judge.

Mr Pitpit, for the appellant, sought to colour the judge’s summation of that criminality by a suggestion of evident emotionalism on the judge’s part. I do not accept that. Rather it affords this Court some assistance in determining the manner in which the robbery and rapes were carried out. Hence, they justify the trial judge’s findings of these offences in the more serious category.

I do not consider a trial judge need refer to the range of sentences for these individual offences a second time. At that stage of the sentencing process, he shall look to the criminality. Thomas emphasises this aspect by illustrations of arithmetic aggregations as faulty when comparing the “totality of criminal behaviour”: D A Thomas, Principles of Sentencing, 2nd ed (1979) p 56.

The New South Wales Court of Criminal Appeal in R v Holder and Johnston (1983) 13 A Crim R 375 is revealing in its use of the phrase “principle of totality” (per Street J at 389):

“As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregation is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order.”

In that case the court was unanimous in finding that the trial judge had paid insufficient regard to the total criminal behaviour and increased the sentence of the prisoner.

It is a non sequitur to argue that, because sentences for manslaughter should be slightly higher than for rape, the cumulative sentence in this case must bear some relation to an average sentence for the more serious of the particular offences committed or even the particular sentence for the worst case.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48 may be authority for the proposition stated by Bredmeyer J that death is a more serious consequence than the trauma of rape. But I note that manslaughter sentences for part of 1990 range from one year (suspended) to twelve years IHL. Rape sentences in the same period range from eighteen months (suspended on bond) to ten years IHL. Those sentences reflect, no doubt, the gravity of the crimes and take into account mitigating factors.

But when looking at an appropriate total, on cumulation, a trial judge, unless dealing with offences similar in kind, will be led into error by choosing one or other of the offences committed and attempting to proposition that total sentence to the sentence for any such one offence. The proper course must be to look to the totality of the criminality.

It must not be overlooked that in both instances the maximum penalty prescribed by legislation for these two crimes is life imprisonment. To that extent, then the cumulative total does not approach the maximum provided for by the Code for either offence. This Court’s guidelines must always take account of Parliament’s directive that in appropriate cases life imprisonment is available, for a single instance of the crime of rape or robbery.

I adopt the recitation of principle by Kapi Dep CJ in Rex Lialu v The State [1990] PNGLR 487 at 495:

“The primary role of the Supreme Court is to review the exercise of discretion by the trial judge within the context of all the circumstances in the particular case. In the course of dealing with the case, the court will deal with general principles. These become the guiding principles to be applied in other cases. In this regard the Supreme Court plays a vital role in laying down guidelines for the lower courts.”

I would extend that principle to consideration of the totality of criminal behaviour when considering the second leg.

The sentencing judge then must be shown to be in error (R v Tait [1979] FCA 32; (1979) 46 FLR 386 at 388 referred to by Street CJ in R v Holder and Johnston) and the decision of the sentencing judge must be regarded as prima facie correct (Issacs J in Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230). The criticism here is that the trial judge has not, as is commonly accepted, further discounted the two sentences, once he has added them together. In other words, he has not telescoped the sentences.

Such a course is not out of the ordinary. I would recognise the peculiar dangerous nature of these prisoners as justification for the departure from this de facto principle of telescoping. The trial judge has alluded to the nature of these appellants in his summing up. They had, for instance after the multiple rape, had the female victim continue to drive them, under duress, in an endeavour to escape apprehension in the face of police gun fire until the vehicle crashed and the two appellants, with others, decamped. The robbery was carried out with callous indifference to the continued well-being of those subject to their depredations. These appellants’ nature, then, could be described as dangerous in the extreme.

I consider that telescoping the individual sentences, the de facto principle “may be over ridden where there is a particular need for preventive custody” (Thomas at 61). Not to discount further in these circumstances is a valid exercise by the trial judge of his discretion.

In R v Morley (1984) 13 A Crim R 431 at 438, the Court of Criminal Appeal (Western Australia) put it thus:

“The mere recital of the essential facts makes it clear that this was the kind of case in which the deterrent aspect of punishment was of primary importance ... punishment must be assumed to have been evaluated and thus there can be no other class of case in which the deterrent effect of punishment can be more confidently expected to operate. Without losing sight of the principle that ‘enough is enough’ in cases of this kind the most efficient means available to the courts to enforce the relevant prohibition is the imposition of sentences of unequivocal severity.”

While that case involved Morley in eight months of law breaking, particularly multiple robberies, the Crown appealed against the trial judge’s sentence of five years, a cumulative total. The Appeal Court increased the sentence to a cumulative total of 13 years, fixing a minimum term under that State’s peculiar penalties legislation.

Again, in Rex Lialu, Kapi Dep CJ said (at 495):

“As a matter of general principle, it is questionable whether the courts in Papua New Guinea should simply adopt a tariff of sentences in England. The tariff of sentence should reflect the values, the aspirations and the circumstances in Papua New Guinea. In many classes of offences, the circumstances would differ and this should be reflected in the tariff of sentences. Depending on the circumstances and facts of each case, sentences in Papua New Guinea may be more or less than the tariff in England. No tariff of sentences should be adopted from any other jurisdiction without enquiring into the applicability of the tariff to the circumstances of Papua New Guinea.”

In that case I find implied criticism of the United Kingdom application of some mathematical formulae to the sentencing process.

At the time of these offences, there was (and still is) a high rate of crimes coupling rapes with robberies. Where such obvious disregard (as is apparent in this case) for human well-being has been displayed, the judge’s refusal to exercise a discretion to again discount what has become the total cumulative sentence is not ill-founded. The particular need for preventive custody and the warning it must sound in the community for like miscreants is justifiable. I would dismiss the appeal.

Appeal allowed

Sentence reduced

Lawyer for the appellants: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.