Babai v The State [1995] PGLawRp 666; [1995] PNGLR 179 (6 October 1995)

PNG Law Reports 1995

[1995] PNGLR 179 - Puka Babai v The State 

[1995] PNGLR 179

SC493

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUKA BABAI

V

THE STATE

Kimbe

Hinchliffe Andrew Sevua JJ

5 October 1995

6 October 1995

SENTENCING - Appeal against sentence - Incorrect to particularise precise periods being deducted - Only the time served in custody before sentence should be deducted from the head sentence.

Facts

The appellant was convicted and sentenced to eight years imprisonment in light labour for rape. The trial judge deducted two months and two weeks for the time already spent in custody prior to sentence and another nine months and two weeks for the appellants plea of guilty to the charge.

Held

N1>1.       The trial judge erred when he particularised the precise periods he was deducting.

N1>2.       A trial judge should mention all the points in the prisoner’s favour and then make a general deduction without any particularisation.

N1>3.       The only period to be deducted from the head sentence is the time the prisoner has served in custody prior to sentence.

Cases Cited

Papua New Guinea cases cited

John Aubuku v The State [1987] PNGLR 267.

Kesino Apo v The State [1988] PNGLR 182.

Counsel

Appellant in person.

P Mogish, for the respondent.

6 October 1995

HINCHLIFFE ANDREW SEVUA JJ: The appellant was convicted and sentenced to eight years imprisonment for rape by the National Court, Kimbe, on the 16 February, 1994.

He now appeals on the grounds that

N2>1.       the sentence was excessive;

N2>2.       other people in different rape cases at about the same time received lesser penalties; and

N2>3.       that he co-operated with the Court and the police.

The trial judge at page 2 of his Sentence stated as follows:

“Evidence shows that at about 3.00 a.m. while the victim Theresia Bate was asleep, with her children and one Selvia Samuel, her sister, inside her house at Siki Block you went with some Tolais who were armed with shotguns and knives and as she opened the door after she was threatened that she would be burnt with the house, she was abducted at knife point and dragged into the cocoa plantation where you had sexual intercourse with her, when John Bosco had a knife to her throat and was holding her down. You had done this in retaliation for her having reported you to the police for stealing. You had planned to do this as is clear from the record of interview.”

Clearly this is a rape involving more than one persons accompanied by violence and threats of violence together with threats with weapons. It falls into the category of cases referred to in John Aubuku v The State [1987] PNGLR 267 where a sentence of eight years imprisonment and upwards is appropriate in a contested case. Even though this case was uncontested we are satisfied that the trial judge has not fallen into error because, in particular, of the aggravation surrounding the rape. That is, the use of and threats of physical violence and also the involvement of dangerous weapons. We also take into account that the victim was forced from her house. Under the circumstances, the sentence is not excessive or manifestly excessive and we cannot see any identifiable or unidentifiable error on the part of the trial judge. In fact we are of the view that the trial judge was quite lenient.

Having said that, we are satisfied that the trial judge did fall into technical error when calculating the sentence and we propose to rectify it. On page 3 of the said sentence his Honour set out the method by which he arrived at a term of seven years to served in prison. It is incorrect. After sentencing the appellant to eight years imprisonment he then deducted two months and two weeks for the time served in custody prior to sentence and then he deducted nine months and two weeks for the plea of guilty, leaving seven years to serve of the eight year term. The “plea of guilty deduction” should have been completed before arriving at the head sentence. Therefore the head sentence should be seven years two months and two weeks. He should then have deducted the said two month and two weeks for the time already served which would have left a total of seven years imprisonment to serve of the seven years two months and two weeks sentence.

We are also satisfied that the trial judge fell into error when he particularised the precise periods he was deducting. That is, it is incorrect to say, for example, that two years are being deducted for “advanced age.” What a trial judge should do is mention all the points in the prisoner’s favour and then make a general deduction without any particularisation. See Kesino Apo v The State [1988] PNGLR 182.

The appellant also mentioned that there were other similar cases to his which only attracted two years imprisonment. If that is so this Court has no particulars of them before it and we cannot comment except to say that it is unusual to see a rape sentence as low as two year’s imprisonment.

It follows therefore that leave to appeal is granted and the appeal is upheld. The sentence of eight years imprisonment in light labour is varied and the sentence will now read:

N2>*        “Seven years two months and two weeks imprisonment in light labour.

N2>*        Less two months and two weeks already served in custody. Leaving seven years to serve of the seven years, two months and two weeks term.”

N2>*        The sentence is to commence from the 16^th February, 1994.

Appellant in person.

Lawyer for the respondent: Public Prosecutor.