Nawa v State [2007] PGSC 50; SC1148 (2 March 2007)

SC1148

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 16 0F 2006

BETWEEN

JOE NAWA
Applicant

AND

THE STATE
Respondent

Lae: Sakora, Davani & Cannings JJ
2007: 26 February, 2 March

CRIMINAL LAW – review of sentence after plea of guilty – duty of trial judge to sentence the offender on the facts to which he or she has pleaded guilty – duty to act on the version of facts which, within the bounds of possibility, is favourable to the offender.

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 12 years – Criminal Code, Sections 229A(1) and (2).

The applicant sought review of a sentence of 20 years imprisonment imposed by the National Court after he pleaded guilty to an offence under Sections 229A(1) and (2) of the Criminal Code (engaging in an act of sexual penetration with a child under the age of 12 years). The child was an 8-year old girl, his stepdaughter. He appealed outside the 40-day time limit imposed by the Supreme Court Act but satisfied the Court that there were good reasons for dealing with his case as a review of the National Court's decision. The main issue on review was whether the trial judge had erred by finding as a fact, and regarding as an aggravating factor, that the incident over which the applicant was convicted was the third time he had sexually penetrated the victim, when that allegation was not put to him when he pleaded guilty and he made no admissions to that effect in his police interview.

Held:

(1) When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty.

(2) As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.

(3) If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

(4) In the present case the trial judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty and he had no opportunity to rebut.

(5) There was an identifiable error in the sentence. It was a serious error, which vitiated the exercise of the trial judge's discretion as to sentence. The Supreme Court was obliged to quash the sentence and pass a substitute sentence.

(6) Notwithstanding the error, the overriding consideration was that, for reasons explained by the trial judge, the applicant had committed an extremely serious offence and a strong sentence was required. The sentence of 20 years was set aside and substituted with a sentence of 17 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Mark Bob v The State (2005) SC808
Saperus Yalibakut v The State (2006) SC890
The State v John Andrew CR No 98 of 2000, unreported
The State v John Ritsi Kutetoa (2005) N2814
The State v Kemai Lumou (2004) N2684
The State v Saul Zowa CR No 294 of 2001, 22.10.03, unreported
William Norris v The State [1979] PNGLR 605

REVIEW

This is the determination of an application for review of a sentence for the offence of engaging in an act of sexual penetration with a child under the age of 12 years.

Counsel

J Nawa, the applicant, in person
M Zurenuoc, for the respondent

2 March, 2007

1. BY THE COURT: This is a review of a sentence of 20 years imprisonment imposed by the National Court on the applicant, Joe Nawa, after he pleaded guilty to a charge of engaging in an act of sexual penetration with a child under the age of 12 years.

2. On Sunday 14 August 2005 the applicant was involved in an incident at Ponam, Manus Province, in which he allegedly sexually penetrated an 8-year-old girl, his stepdaughter. The police investigated the incident. The applicant was charged and committed for trial on 29 December 2005. He was indicted before the National Court at Lorengau on 6 April 2006. He pleaded guilty. The presiding Judge, Sevua J, accepted the plea, convicted the applicant and on 10 April 2006 sentenced him.

3. On 10 August 2006 the applicant gave a notice of appeal against sentence. This was more than two months outside the 40-day period permitted by Section 29(1) of the Supreme Court Act. We inquired into the cause of the delay in lodging an appeal. We were told that there were problems in getting appeal documents to and from Manus Province during 2006 due to the poor condition of the Lorengau Jail and confusion caused by the transfer of many prisoners to Buimo Jail at Lae. Counsel for the State, Ms Zurenuoc, conceded that those were justifiable reasons for the delay. She did not object to this court reviewing the sentence under Section 155(2)(b) of the Constitution, which states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

4. The exercise of jurisdiction by the Supreme Court under this provision is not automatic. A person who has lost a right of appeal has to first convince the Supreme Court that it should engage in a review. After considering the explanation given for the delay, Ms Zurenuoc's concessions, the length of the sentence and perusing the appeal book, which shows that there are some significant and arguable points to be determined, we have concluded that the three criteria for granting leave are satisfied. That is:

1. it is in the interests of justice to grant leave; and
   
2. there are cogent and convincing reasons and exceptional circumstances; and
   
3. there are clear legal grounds meriting a review of the National Court's decision.
   

(See Mark Bob v The State (2005) SC808; Application by Herman Joseph Leahy (2006) SC855.)

5. Therefore we grant leave for the sentence imposed by the National Court to be reviewed by way of an application for review. The offender, who has lost his right of appeal, is referred to as 'the applicant', rather than 'the appellant'.

THE NATIONAL COURT PROCEEDINGS

Indictment

6. The indictment stated:

Joe Nawa of Ponam, Manus Province, stands charged that he on the 14th day of August 2005 at Ponam ... sexually penetrated [the complainant], a girl under the age of 12 years.

7. It was presented under Section 229A (sexual penetration of a child) of the Criminal Code, which states:

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Arraignment

8. The trial judge put the allegations to the applicant in these terms:

The State has brought this charge against you. The charge is one of sexual penetration. You pushed your penis inside the vagina of a young child.

The State says that on 14 August last year, 2005, you were at your place at Ponam Island. You took the little girl whose name we cannot mention because of her age, told her to lie down on a platform in the house then you had sexual intercourse with her. At that time the victim was in grade 3 at school and she was 8 years old and she was the daughter of your de facto wife. You understand the charge?

9. The applicant replied yes and that the charge was true. The trial judge entered a plea of guilty subject to reading the District Court depositions. The defence counsel, Mr Philip Kaluwin, said the plea was consistent with instructions and he had no application to make. The prosecutor, Mr Pondros Kaluwin, tendered the depositions. His Honour read the depositions and said that he would accept the guilty plea subject to the allocutus. The applicant had no prior convictions.

Allocutus

10. His Honour said that he would hear what the applicant had to say relating to punishment. The applicant said:

Your Honour, before you deliver the sentence, I say sorry for what I have done. Your Honour, I humbly ask this honourable court for leniency. Your Honour, that is all.

The trial judge said that there was nothing in the allocutus that made the plea equivocal and convicted the applicant.

Submissions

11. The defence counsel, Mr Philip Kaluwin, began by pointing out the offender's personal particulars: age 34, from Ponam Island, married with three children plus the victim (an adopted child), Catholic, parents both alive, he has one brother and three sisters, educated to grade 7 at Papitalai High School, no formal employment. Mr Kaluwin referred to a decision of Kandakasi J, in Manus, The State v Kemai Lumou (2004) N2684, in which the offender was sentenced to 17 years imprisonment for an offence under Section 229A. Mr Kaluwin submitted that the present case should be distinguished because in Lumou there were threats made with a weapon and aggravated physical violence, whereas in the present case those aggravating circumstances were not present. Further there was no evidence of physical injury or a sexually transmitted disease. A lower sentence, of 12 to 14 years, was warranted, the defence counsel submitted.

12. The prosecutor, Mr Pondros Kaluwin, was not invited to, and did not, make submissions on sentence.

Sentence

13. The trial judge gave an oral judgment. His Honour began by pointing out that the maximum penalty was life imprisonment. His Honour referred to the mitigating factors highlighted by the defence counsel and said that he had considered all those matters. However, a severe punishment was warranted due to a number of circumstances of aggravation, in particular:

1. The age of the victim. She was only eight years old and this meant that the fact that no weapon was used was irrelevant.
   
2. This was not the first time that the accused had committed this crime against the victim. He had done it twice previously, once at the beach and the other time inside their house. On both occasions the offender threatened the victim. The first time he threatened her with a bush-knife. The second time he told her he would kill her if she told her mother. His Honour was relying on a statement the victim made to the police, which was amongst the depositions. His Honour stated: The accused seems to be a sexual predator. He did it once and was not caught, so he did it the second time, but was not caught either because he had threatened the victim.
   
3. The offender was the stepfather of the victim. He was in a position of trust and responsibility. Though he was not her biological father he was still the victim's father. It was a serious betrayal of trust.
   
4. The strict Manus custom of treating adopted children or children of spouses who are not a person's own biological children is being devalued to the extent that many fathers are not respecting that custom any more. The paramount duty of a father is to protect his children and if he abuses that duty he must be taught a lesson that he will never forget.
   
5. The crime was akin to rape due to the age of the victim, which meant that she was not in a position to consent.
   
6. This sort of crime is rapidly increasing in Manus as well as in other provinces. A strong deterrent sentence is required.
   
7. There was a vast age difference between the offender (aged 34) and the victim (aged 8): 26 years.
   

14. His Honour considered that the maximum sentence is life imprisonment and anything less is already a lenient sentence. The courts had to send the right message to young female children by imposing severe punishments on child molesters. His Honour stated that it appears that the accused is a paedophile because he had committed the same crime against the victim on two previous occasions. His Honour stated:

The punishment that the court will impose on this accused now must send a warning to all the men in Manus that if they decide to tread the path that this accused had trodden, they will be treated the same.

15. His Honour imposed a sentence of 20 years imprisonment in hard labour and deducted the pre-sentence period in custody of six months and two days, leaving the offender facing custody for a further period of 19 years, 5 months, 3 weeks and 5 days. After pronouncing the judgment, his Honour addressed the applicant directly and explained why he was being given a sentence of 20 years.

THE REVIEW

16. We are treating the notice of appeal as an application for review. It raised two grounds, both of which can be disposed of quickly. First, the applicant argued that the sentence was too severe. He referred to two previous cases similar to his, in which the offenders received much lower sentences: The State v John Andrew CR No 98 of 2000 (10 years) and The State v Saul Zowa CR No 294 of 2001 (13 years). Secondly, he said he is a married man with four children, including the victim, to care for.

17. As to ground No 1, the decision in Andrew's case is unreported. Our checks with the Supreme Court Registry reveal that the offender's appeal against sentence was dismissed. The applicant did not furnish copies of the judgments of orders of the National Court or the Supreme Court. We can therefore attach no weight to his submission regarding that case. As to Zowa's case, it was a decision of Injia J, as he then was, in Lae in October 2002. The offender pleaded guilty to two counts of rape and one count of sodomy committed against a 21-year old woman, his adopted daughter. The offender was aged 46 and was the police station commander at Three Mile, Lae. The offences were committed in one sequence of events. The offender was sentenced to 13 years imprisonment for each offence, to be served concurrently. It was a shocking case of abuse of a daughter by her father. We can understand why the applicant wanted us to compare his case with it. However, Zowa's case was decided before the commencement of the new laws regarding sexual offences against children, so it is of limited relevance. Also, a major point of distinction between it and the present case is the age of the victim. In Zowa, the victim was aged 21, whereas in the present case the victim was aged 8. Where the victim is a young child, the offence is more serious than where the victim is a young adult, and the sentence will be stronger.

18. As for ground No 2, the trial Judge took into account that the applicant was a family man. Unfortunately when a person commits a serious crime the punishment is felt by not only the offender but also his or her family. That is a fact of life and the trial Judge gave this factor the weight it deserved in the circumstances of this case. We therefore dismiss both grounds in the notice of appeal.

New grounds

19. There were two significant points of law that came to light during the hearing of the review. First, the applicant suggested that the trial Judge had disregarded his guilty plea and sentenced him as if he had pleaded not guilty. Secondly, we expressed interest in one of the aggravating factors highlighted by the trial Judge, the one we have listed as No 2, where his Honour stated that the offender had committed the same offence against the victim on two previous occasions, and threatened her with violence.

20. We discussed both of the above points with counsel for the State, Ms Zurenuoc, and she made submissions on them. The applicant was unrepresented. This was yet another of a number of appeals in the current Supreme Court circuit in Lae in which a prisoner seemed to have been abandoned by the lawyer who represented him in the National Court, the Public Solicitor. In the circumstances we considered that the points of law should be treated as new grounds of review, viz:

1. that the learned trial judge erred by giving little or no weight to the applicant's guilty plea; and
   
2. that the learned trial judge erred by sentencing the offender on the basis of two previous incidents to which he did not plead guilty.
   

APPLICANT'S SUBMISSIONS

21. On the first new ground of review, the applicant submitted that he had made it easy for everybody by pleading guilty. By that he meant that the Court did not have to conduct a trial, the job of the State Prosecutor was made easy and the victim was not required to give evidence. As to the second new ground of review he said that it was never put to him in court that he had done the same thing on two previous occasions. The police had asked him about that in his police interview but he declined to answer the question. We point out that the transcript of the National Court proceedings and the record of interview show that that version of events is truthful.

RESPONDENT'S SUBMISSIONS

22. As to the argument that no account was taken of the guilty plea, Ms Zurenuoc submitted that his Honour considered that as a mitigating factor and gave it the weight it deserved. The number and strength of the aggravating factors, however, outweighed the effect of the guilty plea. Ms Zurenuoc conceded that an error might have been made by the trial Judge when his Honour took into account that the applicant had committed the same offence twice previously, as that allegation did not form part of the facts to which the applicant pleaded guilty. However, if it was an error it was not in the circumstances a serious one as it was such a serious case, with many strong aggravating factors, that the sentence of 20 years was an appropriate one. The error, if it were made, did not, according to the principles established in William Norris v The State [1979] PNGLR 605, have the effect of vitiating the sentence.

PRINCIPLES FOR DETERMINING APPEALS AGAINST SEVERITY OF SENTENCES

23. The governing law is Section 23(4) (determination of appeals in ordinary cases) of the Supreme Court Act, which states:

On an appeal against sentence, if the Supreme Court is of 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.

24. The practical application of this provision was explained in an often-quoted passage from the judgment of Kearney J in the Supreme Court's decision in William Norris v The State [1979] PNGLR 605. His Honour stated:

To succeed in an appeal against sentence an applicant (other than the prosecutor) must persuade this Court that a more lenient sentence was warranted in law and should have been imposed; when so persuaded, this Court must quash, and substitute the sentence which should have been imposed. ... In practice, in order to persuade this Court, an applicant will usually be required to show some error on the part of the trial judge, going to sentence; that approach accords with the approach followed by this Court and other appellate courts when reviewing any exercise of discretionary power ... The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to assess the proper sentence than is a court of appeal.

So the question in practice on a sentence appeal is usually this — has the applicant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating errors if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.

25. We agree that that is the proper approach to a sentencing review or appeal. Thus there are up to six steps for the Supreme Court to follow:

1. Were there any identifiable errors of law made by the sentencing judge?
   
2. If yes, do the errors vitiate (ie invalidate) the exercise of the sentencing judge's discretion?
   
3. If it is a vitiating error, the Supreme Court is obliged to quash the sentence and pass a substitute sentence.
   
4. If there were no identifiable errors, is the sentence nonetheless obviously excessive?
   
5. If yes, that is also a vitiating error and the Supreme Court is obliged to quash the sentence and pass a substitute sentence.
   
6. If there were no identifiable errors and the sentence is not obviously excessive, the Supreme Court will not form the opinion that some other sentence is warranted; and the sentence should not be disturbed.
   

THE ISSUES

26. The first substantive issues to address are about whether the trial judge made any identifiable errors. In particular:

• Did the trial judge err by disregarding the guilty plea?
  
• Did the trial judge err by sentencing the applicant based on two previous incidents to which he did not plead guilty?
  

Other issues will then arise, according to the approach required by the Norris principles.

DID THE TRIAL JUDGE ERR BY DISREGARDING THE GUILTY PLEA?

27. We do not agree that his Honour disregarded the guilty plea. His Honour clearly stated at the beginning of his judgment that the applicant had pleaded guilty. He then carefully summarised the defence counsel's submissions and the mitigating factors that had been highlighted. His Honour stated that he had considered all those submissions. His Honour did not expressly state that he regarded the guilty plea as a mitigating factor. Perhaps with the benefit of hindsight that should have been done. But the failure to do it, in the circumstances of this case, does not mean that an error was made. His Honour made it clear that in his opinion this was a very serious case in which the aggravating factors far outweighed the mitigating factors. We find no identifiable error regarding the guilty plea.

DID THE TRIAL JUDGE ERR BY SENTENCING THE APPLICANT BASED ON TWO PREVIOUS INCIDENTS TO WHICH HE DID NOT PLEAD GUILTY?

28. His Honour made the point on three separate occasions in his judgment and on three separate occasions when addressing the applicant that the applicant had committed the same offence twice previously. In the judgment, his Honour stated:

... there is evidence that this crime is not the first time that the accused had perpetrated upon the victim. Whilst the court acknowledges that he is charged with only one charge relating to the incident of 14 August last year, the victim's evidence is that the accused had committed this crime against her two times previously.

29. His Honour said that on both occasions the offender threatened the victim. The first time he threatened her with a bush-knife. The second time he told her he would kill her if she told her mother. His Honour was relying on a statement the victim made to the police, which was amongst the depositions. In another part of the judgment, his Honour stated:

It appears to me that this accused is a paedophile because he has committed the same crime with the victim on two previous occasions.

30. Near the end of the judgment, his Honour stated:

The accused seems to be a sexual predator. He did it once and was not caught, so he did it the second time, but was not caught either because he had threatened the victim.

31. Addressing the applicant directly, his Honour stated:

You did not only do this once to her, you did it twice before. ...

In this case you did it twice previously like I said. The girl said in her statement that on two previous occasions, one, you did it to her at the beach and one inside the house. And, the third time you did it, you were caught; you were seen. ...

There are many aggravating factors in your case, like you have had sexual intercourse with this eight year old girl twice before; and you had threatened her with a knife if she told her mother.

32. With respect, we consider that his Honour should not have made the above statements as the applicant was not charged with any offences other than that to which he pleaded guilty: the offence committed on 14 August 2005. As an accused who pleaded guilty he had a right to be sentenced according to the allegations put to him on arraignment. Aggravating factors that arise from the trial judge's consideration of the depositions should be disregarded unless perhaps if they are clear and non-contestable. In Saperus Yalibakut v The State (2006) SC890 the Supreme Court reaffirmed that the following principles apply when sentencing an accused who has pleaded guilty:

• The sentencing judge must apply the facts to which the offender has pleaded guilty.
  
• As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.
  
• If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

33. In the present case the learned trial judge went beyond the facts to which the applicant pleaded guilty. The applicant was not given the benefit of the doubt on the issue of whether there had been two previous incidents. Indeed the issue of whether there were any previous incidents was not raised by either the prosecutor (who made no submissions on sentence) or the defence counsel. The applicant had no opportunity to comment or rebut the very serious allegations, indeed findings, made by the trial judge. Moreover his Honour made his findings on the basis of a typed statement in the name of the victim, a child who, at the time of making the statement, was still only nine years old. We also note that the statement was unsigned. The only, limited, verification of the allegations in the statement was an unsworn statement by the victim's aunty that the victim told her that the applicant had done those "things to her twice at different locations". We find that his Honour, with respect, made an identifiable error by sentencing the offender as if he were guilty of two previous offences, to which he did not plead guilty.

DID THE ERROR VITIATE THE EXERCISE OF THE TRIAL JUDGE'S DISCRETION?

34. We have identified one error in the exercise of the trial Judge's discretion. It was one of a number of aggravating factors his Honour identified. Before we address the extent, if any, to which it affected the sentence, we state that we consider that his Honour made no other errors in the exercise of his discretion.

35. His Honour properly emphasised the tender age of the victim and the vast age difference between the offender the victim. His Honour justifiably considered that the offender, being the victim's stepfather, was in effect her father and therefore guilty of a serious betrayal of trust. The same point was made in The State v John Ritsi Kutetoa (2005) N2814, a Buka case in which a 37-year-old man who pleaded guilty to sexually penetrating his 10-year-old stepdaughter was sentenced to 17 years imprisonment. The sentencing judge, Cannings J, stated:

The offender was the girl's stepfather. He was, for all intents and purposes, her father. The offender's actions undermined one of the most precious relationships known to humankind: the bond between a father and his daughter.

36. We also consider that his Honour was in the present case well placed to regard the strict Manus custom of treating adopted children or children of spouses who are not a person's own biological children as being devalued. We agree that the offence in this case was tantamount to rape, due to the age of the victim, which meant she was not in a position to consent. Finally, it seems to be a well-acknowledged fact and a cause of great concern that sexual offences against children are disturbingly prevalent in Manus and other parts of the New Guinea Islands Region and Bougainville. Strong deterrent sentences are required.

37. However, when we turn our mind to the error that we have identified – sentencing the offender on the basis of two previous offences against the same victim – we consider that it was a serious error. His Honour did not simply make a passing comment that it appeared as though the offender had done the same thing twice before. His Honour made a finding to that effect, repeated the finding five times and labelled the offender a sexual predator and paedophile. It was clearly something to which his Honour attached considerable weight in the exercise of his sentencing discretion. The seriousness of the error means that it vitiates the exercise of his Honour's discretion. In light of the principles in Norris's case explained earlier we have moved to step No 3 of the decision-making process. We are obliged to quash the sentence and pass a substitute sentence. It is unnecessary to proceed to step Nos 4, 5 or 6.

38. We are of the opinion that a less severe sentence is warranted in law and should have been passed. In deciding by how much the original sentence should be reduced, we remain influenced by the gravity of the offence committed by the applicant. We will quash the sentence of 20 years and pass in substitution for it a sentence of 17 years imprisonment.

PLACE OF DETENTION

39. Under the Constitution, Section 37(20), a prisoner has a right to be detained in custody close to where his relatives reside. That right should be enforced in this case. We will order that the applicant be returned to Manus.

JUDGMENT

40. We will make an order in the following terms:

(1) the review of sentence is granted;

(2) the sentence of 20 years imprisonment passed by the National Court is quashed and substituted with a sentence of 17 years imprisonment;

(3) the warrant of commitment issued by the National Court is quashed and a fresh warrant of commitment reflecting the new sentence will be issued in substitution for it;

(4) the Commissioner of the Correctional Service shall within 30 days after the date of this order transfer the applicant to Lorengau Correctional Institution to serve the rest of his sentence.

Judgment accordingly.

_____________________

Lawyer for the applicant : Self-represented
Public Prosecutor: Lawyer for the respondent