Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998)

Unreported Supreme Court Decisions

SC593

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO. 81 OF 1997
BETWEEN: LAWRENCE HINDEMBA
APPELLANT
AND: THE STATE
RESPONDENT

Wewak

Woods Injia Sawong JJ
26-27 October 1998

CRIMINAL LAW - Appeal against sentence - Prisoner appeal - Appeal against 10 year sentence for rape - Power of Supreme Court to increase sentence - Sentence increased to 15 years - Supreme Court Act (Ch. No. 37), Section 23(4), Criminal Code (Ch. No. 262), Section 347.

Cases Cited:

The King -v- Ettridge [1909] UKLawRpKQB 62; [1909] 2 K.B. 24.

Harris -v- The Queen [1953-54] 90 CLR652.

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

John Aubuku -v- The State [1987] PNGLR 269.

The State -v- Richard Aimuna Koupa [1987] PNGLR 208.

The State -v- Peter Kaudik [1987] PNGLR 201.

The State -v- Thomas Waim [1995] PNGLR 187.

Sinclair Matagal -v- The State SCRA 95 of 1996 (4 June 1998).

Counsel

Appellant in person

C Manek for the Respondent

27 October 1998

WOODS INJIA SAWONG JJ: On 27 October 1998, we heard this appeal against sentence only and dismissed the appeal, quashed the sentence of 10 years for rape imposed by the National Court and increased the sentence to 15 years. Due to time limitations we have on circuit, we gave brief reasons then and indicated we would give full reasons later. This we now do.

On 27 October 1998, our brief reasons were:

“The appellant appeals against the sentence of ten (10) years imposed for the rape of a small ten (10) year old school girl on the 16th April 1997. The appellant grabbed the victim as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let the victim go when the victim’s sister intervened to free her and had sexual intercourse with the victim by force. During the encounter the victim was in immense pain and her vagina bled. The doctor’s report confirmed forced sexual intercourse took place with visible injuries to her vagina.

“The appellant pleaded guilty to the charge before the trial judge. The trial judge took into account the seriousness of the offence and the presence of special aggravating factors, in particular the fact that the victim was very young and a weapon was used to threaten her and force was used. These factors were balanced against two mitigating factors namely, the appellant’s guilty plea and his record of no prior conviction. The trial judge then imposed a sentence of 10 years.

“The appellant has now asked us to reduce the sentence on the basis of his first offender status, his guilty plea, his co-operation with the police, and the fact that the trial judge imposed lesser sentences in other previous similar cases. The State Prosecutor submits that the sentence in the circumstances was so inordinately low that the appellant’s appeal should not only be dismissed but that the sentence should be increased to 15 years imprisonment.

“The offence of rape under Section 347 of the Criminal Code (Ch. 262) is a very serious offence for which the maximum punishment is life imprisonment. The Supreme Court in John Aubuku v The State [1987] PNGLR 267 stated that the offence of rape should be visited with a strong deterrent and punitive sentence in the form a custodial sentence. In a case where a woman or girl is abducted, taken captive and raped, the Supreme Court suggested a starting point of 8 years imprisonment. The Supreme Court also pointed out that the presence of special aggravating factors such as the use of excessive force and the very young age of the victim should attract sentences above the starting point of 8 years. Also in the past, the rape of victims of the ages of 17 years and above have attracted sentences between 10 years to 18 years: see John Aubuku v The State (supra), The State v Richard Aimuna Koupa [1987] PNGLR 208, and the State v Peter Kaudik [1987] PNGLR 201.

“In the present case we are of the view that given the fact that the victim was very young, excessive force was used and the victim sustained vaginal injuries warranted a sentence over 10 years, even in the presence of the mitigating factors put to us and before the trial judge by the appellant. Although we agree with the trial judge that this was a serious rape we think the trial judge’s sentence does not reflect the seriousness of this particular offence and the abhorrence of society.

We are also of the view that because both the appellant and the State have asked us to re-visit the sentence we must invoke our power under the Supreme Court Act Section 23(4) to decide whether the sentence should be increased or decreased. We consider that Section 23(4) gives this Court wide powers to increase or decrease the sentence of the trial judge in appropriate cases either on this Court’s own initiative or upon the application of the State at the hearing of an appeal by a convicted appellant. In the circumstances of this case, we are inclined to dismiss the appeal against the sentence, the sentence in our view being so inordinately low. We are inclined to increase the sentence. Given the limitations in time we have on circuit, we are unable now to give full reasons for increasing the sentence. We will do so at a later date. It is sufficient to-day to simply say that in the circumstances of the present case, a sentence in the range of 15 to 20 years is appropriate and should have been imposed by the trial judge. We impose a sentence of 15 years in lieu of the 10 years imposed by the trial judge. This should also serve as a warning to like-minded would-be offenders like the appellant that sentences for sexual abuse of small children, an offence which is becoming prevalent in this country, should and will be visited with a stern punishment. It should also serve as a warning to appellants who challenge lenient sentences for serious and prevalent crimes involving violence such as rape and armed robbery and murder that they risk losing the benefit of the lenient sentence and receiving a heavier sentence on appeal.” (Edited version).

The Supreme Court Act provides for determining appeals against conviction and/or sentence of the National Court. Although S.23(4) is the provision which gives the Supreme court power to increase or decrease a sentence of the National Court, we first lay out the scheme of Sections 22, 23,24 and 25 which provide for appeals by a convicted appellant or by the Public Prosecutor.

Section 22 provides for appeals by a convicted appellant. Section 22(a), (b) and (c) allows a connived appellant to appeal against conviction and S.22(d) allows a convicted appellant to appeal against sentence. Section 23 which is entitled “Determination of appeals in ordinary cases” provides for the manner in which appeals against conviction or sentence are to be determined. Section 23(1), (2) and (3) provides for the manner in which appeals against conviction are to be determined whilst section 23(4) provide for the manner in which appeals against sentence are to be determined. Section 23(4) provides:

“On an appeal against sentence, if the Supreme Court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.”

Section 23 however is silent on the question of whether it (S.23) applies to appeals by convicted appellant under the preceding S.22 or it also applies to appeals by the Public Prosecutor under the succeeding provisions of Section 24 and Section 25.

Section 24 allows the Public Prosecutor to appeal against sentence and Section 25 allows the Public Prosecutor to appeal against conviction only in relation to a National Court judgment quashing a conviction on appeal.

It is clear to us from the scheme of the legislative provisions referred to above that an appeal by a convicted appellant under S.22 is treated as an ordinary or normal appeal, the manner of determining the appeal for which is provided for in the succeeding provision in S.23. Hence S.23(1), (2) and (3) deal directly with appeals against conviction only under S.22(a), (b) and (c) and S.23(4) deals directly with appeals against sentence only under S.22(d). Appeals by the Public Prosecutor against conviction in limited cases and against sentence generally are accorded special treatment in Sections 24 and 25. Both S.24 and S.25 enable the Public Prosecutor to appeal against conviction and sentence and also provide for the manner in which such appeals are to be determined. Therefore, it is our view that the provisions of S.23, have no application to appeals by the Public Prosecutor under S.24 and S.25.

In our opinion, once an appellant appeals against his sentence under S.22(d), it is open to the Supreme Court under S.23(4) to exercise its discretion to increase or decrease the sentence of the National court, if it is of the opinion that that sentence was warranted. Section 23(4) applies to both appeals from prisoners who are convicted and sentenced upon a not guilty plea or after a guilty plea: see Rex v Ettridge [1909] UKLawRpKQB 62; [1909] 2 K.B. 24 at 29 for an interpretation of similar provisions in the English Criminal Appeal Act, 1907, S.4(3). This discretion may be exercised either on the Court’s own initiative or upon application by the State Prosecutor at the hearing of the appellant’s appeal against sentence provided the appellant is given an opportunity to be heard on the option.

The principles applicable to determining whether a sentence ought to be increased or decreased are once again the same as those applicable to the question of whether the sentence is manifestly excessive or manifestly inadequate. These principles are well settled in our jurisdiction. The Court does not have an unfettered discretion. The discretion must be exercised judicially. It is to be exercised where there is a clear error or mistake in the exercise of the trial judge’s judicial sentencing discretion and such that the sentence of the National Court is manifestly inadequate or manifestly excessive, as the case may be, in the circumstances. In essence this means:

“The jurisdiction to revise such a discretion must be exercised in accordance with recognised 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.” (Harris v The Queen [1954] HCA 51; [1953-54] 90 CLR 652 at 655-565).

The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State sc 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years.

In the present case, the trial judge gave very brief reasons for imposing the 10 years sentence as follows:

“You have pleaded guilty to a charge that on the 16th of April 1997, at Turubu you committed rape upon one Merolyn Jeas.”

“This is an aggravated case of rape because the victim was only 10 and you attacked her on her way home from school and threatened her with a knife. it is a frightening thing when school children of this age are not safe from simply attending school.

“Rape is a serious offence which unfortunately is now prevalent throughout the country.

“It take into account the fact that you pleaded guilty and that this is your first offence. For those reasons, your sentence will be reduced. In all the circumstances I sentenced you to imprisonment “with hard labour for 10 years.”

In our view, we consider that although the trial judge did mention the frightening nature of the offence on the young victim, and the serious and prevalence of the offence generally and the need to protect young school girls, His Honour failed to fully appreciate the total circumstances of the offence and the need to impose a punitive and deterrent sentence. The trial judge failed to take into account the following significant factors:-

1. Although the accused was 20 years old, he displayed strong perversive behaviour that day when he refused to listen to the victim’s sister and stop what he was going to do to the victim. He also told her to shut up and threatened to take her to the bush as well. The rape occurred in broad daylight. The victim separated the victim from other young school girls and preyed upon the victim and grabbed her carried her into bush and had sexual intercourse with her by force in the presence of other school children. The other school children saw this and ran away.

2. The injuries inflicted on the victim’s vagina and genital area. The victim sustained torn hymen which caused severe bleeding and caused an opening in her vagina which could admit one finger.

3. The humiliation and emotional and physiological damage occasioned to her that day and the stigma that would remain with her for the rest of her life.

We are of the view that the trial judge’s failure to fully appreciate and take into account the above factors resulted in imposing a sentence which we consider “manifestly inadequate” in the circumstances.

At the hearing of this appeal, the appellant whilst pressing his own case for leniency appeared not to have any regard for the seriousness of the crime he committed. In his vigorous pursuit of his own interests, our invitation to him to address us on the State’s application to increase the sentence received no response from him.

For these reasons, upon the application of the State Prosecutor at the hearing of the appellant’s appeal against sentence, we exercised our discretion conferred by S.23(4) to dismiss his appeal, quash the sentence of 10 years imposed by the trial judge and in its stead, imposed a sentence of 15 years.

Appellant in person

Lawyer for the Public Prosecutor: Public Prosecutor