Vola, Public Prosecutor v [1981] PGSC 26; [1981] PNGLR 412 (19 October 1981)

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CRIMINAL LAW - Sentence - Suspending portion of term of imprisonment - Proper basis and procedure for - Criminal Code s. 19(f)[dclviii]1.

The power of a sentencing judge to suspend portion of a term of imprisonment pursuant to the proviso to s. 19(f) of the Criminal Code is discretionary and must be exercised upon some proper basis; it is not permissible to take into account the same factors which have been taken into account in arriving at the sentence imposed.

Where a sentencing judge proposes to suspend portion of a sentence under the proviso to s. 19(f), as the suspension is effective only upon the offender entering into the recognizance proposed, the offender should be given the opportunity of entering into the recognizance before commencing to serve the portion of the term ordered to be served.

KAPI J PRATT J MILES J: The decision of the court in this matter was handed down on 26th August 1981. We now publish our reasons.

This was an appeal by the Public Prosecutor against sentence. The respondent pleaded guilty in the National Court to a charge of rape. He was sentenced to a term of two and a half years imprisonment with hard labour. Pursuant to the proviso to s. 19(f) of the Criminal Code the learned National Court judge ordered that the respondent be imprisoned for nine months portion of that term and that execution of the sentence for the remaining portion of the term be suspended upon the respondent’s entering into a recognizance in the sum of K200.00 to keep the peace and be of good behaviour for a period of two years. The Public Prosecutor now submits that the sentence of two and one half years imprisonment was inadequate and further that his Honour erred in exercising his discretion to suspend execution of portion of that term of imprisonment.

The learned National Court judge did not record his findings of fact. From the material before him it seems that the respondent was a single man, nineteen years of age and from the East New Britain Province where he had been educated at a Mission High School (to what level is not clear). He had a good family background. At the time of the offence he had been for about a year a trainee mechanic in the defence force stationed at Murray Barracks. A defence force officer gave evidence before his Honour and spoke of the respondent’s good record within the force.

The rape itself occurred one morning when the respondent was visiting the complainant’s family at Gerehu. The other members of the family had left the house. The complainant who was about fourteen years of age and the respondent were alone in the house. The respondent took advantage of the situation to have intercourse with the complainant against her will. There was no physical injury but the complainant struggled and resisted the efforts of the respondent and also called out for help. After the offence the respondent left the house and the complainant reported the incident to a neighbour who was a policeman.

The facts do not indicate that the offence committed was a rape of the most serious kind. Nor however was it in the nature of a technical rape. Rape is of course a most serious offence punishable by imprisonment for life. Force was used and the girl was quite young. The appellant was several years her senior. Bearing in mind his age and the fact that he was a member of the defence force, he is to be regarded as a young man and not a mere youth.

Various decisions both at first instance and on appeal were cited to us with the purpose of showing that the common pattern of sentencing for rape, where there are no especially aggravating or mitigating factors, lies in a range from about two and a half years to eight years. The decision of the Supreme Court in The Public Prosecutor v. Arape Etape and Ors.[dclix]² was relied upon by the appellant to support the submission that there is a basic tariff in “normal” rape cases of three years imprisonment. We would urge caution in adopting such an approach to the many questions that arise in sentencing in a particular matter, and point out that in any event the decision in Arape Etape (supra) was based on clearly identifiable error on the part of the trial judge.

N1>In the case now under appeal the reasons for sentence of his Honour the National Court judge were brief in the extreme and are as follows:

“2 1/2 years to be imprisonment with hard labour; but in view of the excellent record, his pleading, his youthfulness, his first act of sexual intercourse, his obvious remorse, the offender is to serve 9 months and the rest will be suspended on 2 year good behaviour bond in a non cash sum of K200.”

Insofar as his Honour did not express any reasons for the sentence of two and one half years, we are not able to identify any error on his part and we think that it is sufficient to say that the sentence imposed was not so inadequate that we ought interfere. Different considerations apply however to his Honour’s decision to exercise his discretion to suspend portion of the sentence.

The power of a sentencing judge to suspend portion of a term of imprisonment pursuant to the proviso to s. 19(f) of the Criminal Code has been the subject of recent decisions of this Court: see Acting Public Prosecutor v. Andrew Lalaiva and Angelo Ume[dclx]³ and Acting Public Prosecutor v. Clement Maki and Tom Kasen[dclxi]⁴. The power is a discretionary one and this Court is no more likely to interfere when the sentencing judge has decided to exercise it than when he has declined to exercise it. But the power to exercise the discretion must be exercised on some proper basis. It would be impossible to categorize the range of situations in which it would be proper to suspend a portion of a term of imprisonment. Some of them were mentioned in the decisions just referred to. With respect to the learned National Court judge, it seems to us that the reasons he advanced for suspending portion of the sentence in the present case were not proper reasons bearing in mind that the term of imprisonment already fixed was quite short and indicates a high degree of leniency. The factors which led his Honour to partially suspend the sentence were factors which should have been—and presumably were —taken into account in reducing the term from life imprisonment to two and a half years imprisonment. To use those same factors again to justify the partial suspension appears to have led in effect to a double discount in the respondent’s favour. To that extent we conclude that his Honour fell into error and that part of the sentence must be set aside.

N1>We wish to remark on the procedure to be adopted by a sentencing judge who proposes to suspend portion of a sentence pursuant to the proviso to s. 19(f) of the Criminal Code. As the suspension is effective only upon the offender entering into the recognizance proposed, it would normally be advisable for the sentencing judge to give the offender the opportunity of entering into the recognizance before commencing to serve the portion of the term ordered to be served. We mention this because the respondent in the present appeal has not entered into the recognizance which was a condition of the partial suspension of his sentence and because the warrant of commitment to the Corrective Institution did not accurately record the sentence. If an offender declines to enter into the recognizance he will of course be committed to prison for the entire term; if he does enter into the recognizance he will be committed to prison only for that portion ordered to be served.

N1>The appeal is allowed, the sentence of the National Court is set aside and in lieu thereof the respondent is sentenced to a term of two and one half years imprisonment with hard labour to commence from the beginning of the sittings at which the respondent was convicted.

[dclviii]The proviso to s. 19(f) provides:

Provided that whenever the court shall sentence any person so convicted to a term of imprisonment, it may further order that the offender be imprisoned for such portion of that term as it shall think fit and that the execution of the sentence for the remaining portion thereof be suspended upon his entering into a recognizance, with sureties if so directed, as aforesaid but further conditioned that, if called upon, he shall appear and receive judgment in respect of his service of the portion of his sentence so suspended and any judge of the court may, upon being satisfied that the offender has committed a breach of any of the conditions of the recognizance, forfeit the recognizance and commit him to prison to undergo the portion of his sentence so suspended or any part thereof.

Supreme Court of Papua New Guinea

Vola, Public Prosecutor v [1981] PGSC 26; [1981] PNGLR 412 (19 October 1981)

Papua New Guinea Law Reports - 1981