State v Allan Uru [1998] PGSC 50; SC586 (30 October 1998)

Unreported Supreme Court Decisions

SC586

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 84 OF 1996
THE STATE
APPELLANT
V
ALLAN URU
RESPONDENT

Waigani
2 August 1998
30 October 1998

CRIMINAL LAW – Sentence – Unlawful and Indecent dealing with a girl under the age of 16 years – Guidelines – Different Kinds of indecent dealings – Aggravating circumstances – Mitigating factors – Criminal Code (Ch No. 262) s.217(2).

CRIMINAL LAW – Sentence – Appeal – Unlawful and Indecent dealing with a girl under 16 – Trial – Repeat offender – Victim step daughter – Breach of Trust custodial sentence.

APPEAL AGAINST SENTENCE

This was an appeal against sentence on the ground of inadequacy imposed on two convictions for two offences of unlawful and indecent dealing with a girl under the age of 16 years contrary to s. 217(2) of the Criminal Code (Ch. 262).

Counsel

D Mark for the Appellant

G Gendua for the Respondent

30 October 1998

The Public Prosecutor appeals against a sentence imposed by the National Court upon the respondent in respect of convictions on 10 October 1996 of two offences of unlawful and indecent dealing with a girl under the age of 16 years. The respondent was sentenced to six months imprisonment on only one count and the said sentence was wholly suspended on two conditions. The conditions were that, first that the respondent be placed on a good behaviour bond for 18 months and secondly that he pay the sum of K1,200.00 to the victim as compensation.

The respondent was charged with one count of unlawful and indecent dealing with a girl under the age of 16, and one count of unlawful carnal knowledge of a girl under the age of 16 years and in the alternative for unlawful and indecent dealing with a girl under the age of 16 years. The respondent pleaded not guilty to all the charges. A trial was conducted, and he was found guilty and convicted on two counts of unlawful and indecent dealing.

The first act was committed on 23 September 1994. The offence was committed at the Budget Inn in Port Moresby. In that case, the respondent, his wife and the children including the victim were unable to travel home that evening. They therefore booked a room at the motel. Whilst the rest of the family including the respondent slept on the floor, the victim slept on the bed. In the course of the night, the respondent climbed onto the bed on the pretext of sharing a bed cover with her, whilst under the bed cover he removed her clothing and his own clothing and then pushed his fingers into her genitals and also forced her to hold his private parts. The victim felt pain and cried out. This woke her mother up, who went over to the bed, removed the bed cover and saw the incident.

The second incident occurred on 18 March 1995. This time the incident occurred at their house at their village at Gabagaba. On this occasion the respondent called her to go and scratch his back as he was lying on his bed, but when she went to him, he forced her to hold his genitals.

The appeal is brought pursuant to s.24 of the Supreme Court Act (Ch No. 37) which provides that: “24. Appeal by Public Prosecutor against sentence.

1. In this section “sentence” includes any order made on conviction with reference to the person convicted or his property.

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

It is trite law that an appellate court does not interfere with the sentence imposed by the court below because it is of the view that the sentence is either inadequate or excessive. It interferes only if it is apparent that the sentencing judge has fallen into an error in acting on a wrong principle or has misunderstood or wrongly assessed the facts of the case. The error may appear in the reasons for sentence or the sentence is so inadequate or excessive so as to manifest error. See Acting Public Prosecutor v. Uname Arcmane [1980] PNGLR 510, Acting Public Prosecutor v. Kovis Hala [1981] PNGLR 205.

Mr Mark has submitted that the sentence imposed by the learned trial judge was manifestly inadequate. He advances two grounds. Firstly he submitted that the learned trial judge had erred in law in giving insufficient weight to the seriousness of the offence. Secondly he submitted that the learned trial judge had erred in exercising his sentencing discretion in that the sentence he imposed was a significant departure from the established range of sentences imposed for sexually related offences involving under aged girls and where a breach of trust is involved in the commission of the offences.

He submitted that in these circumstances, the trial judge clearly made errors, which warrant this court to vitiate the learned trial judge’s sentencing discretion and impose a higher sentence.

Mr Gendua, in essence has submitted that the trial judge made no errors in the exercise of his sentencing discretion. He submitted that the trial judge had considered all relevant factors both in favour and those against the respondent and imposed the sentence which was quite open to him.

In his reasons for sentence the trial judge made reference to the position of trust existing between the respondent and the victim. She was his step daughter and aged 12 years so was a very young girl, he having married her mother. She was in his care and custody. He refers to the Supreme Court decision in James Amor and Mea v. The State No. 42 of 1995. In that case the court said, interalia, “A breach of a position of trust warrants a heavier sentence.”

He then refers to the mitigating factors in favour of the respondent, and that he had no prior convictions, that he has had a good employment record, that he has a large family to look after. He then says that the respondent’s “Case is one of those special cases which calls for leniency”.

We have considered the submissions. We accept the submissions put by the State. We are of the view that the trial judge had fallen into errors in acting on wrong principles, in the exercise of his sentencing discretion. Whilst he properly referred to the principles relating to sentencing on sexually related offences involving young girls where breach of position of trust is involved we are of the view that in applying these principles to the facts of this case, he fell into an error.

Further, we consider that he also fell into an error in taking into account as a mitigating factor the period the respondent had spent in custody. In our view it is wrong in law to treat such a custodial period as a mitigating factor.

Finally, we consider that trial judges sentence was so lenient for such a young girl aged only 12 years that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deferent to the respondent and to others. It is thus the duty of this court to determine the appropriate sentence which would produce such a result.

It is our considered view that the court must take a stern view of and send a stern warning that this kind of behaviour is repugnant, offensive and is an unnatural offence against a child, such that in our view an immediate deterrent custodial sentence must be imposed. Such a sentence is clearly called for in cases where there is a breach of trust and or other circumstances of aggravation such as where the offence is repeated, or where a trial is conducted.

We note that the respondent has paid the sum of K1,200.00 as compensation to the girl. But the compensation cannot substitute the penalty prescribed by the law.

We have taken into consideration the respondent’s age, and his prior good character. However, we consider the inherent gravity of the offences he committed warrants a custodial sentence. The trial judge did not impose another sentence on the other count. This we believe is an error. Although the offences were committed on different dates, nevertheless they were committed on the same victim and the facts constituting the offence were different, we consider that a different sentence ought to be imposed on the second count.

We uphold the appeal and quash the sentence that was imposed by the trial judge. Taking into account time spent in custody we substitute a sentence of 12 months imprisonment with hard labour on each count. In the circumstance of this case we consider that the sentences should be made concurrent.

Lawyer for the Appellant: Public Prosecutor

Lawyer for the Respondent:Public Solicitor