Mai v State [2008] PGSC 2; SC903 (29 February 2008)

SC 903

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 23 0F 2006

TONY MAI
Appellant

V

THE STATE
Respondent

Waigani:
Salika, Kandakasi & Cannings JJ
2008: 26, 29 February

CRIMINAL LAW – rape – appeal against conviction – elements of offence – appellant’s primary ground of appeal inconsistent with defence relied on at trial.

CRIMINAL LAW – rape – sentence – whether trial Judge erred in imposing sentence of 12 years – whether improper letter from prisoner’s father swayed Judge’s decision on sentence – whether mitigating factors taken into account.

The appellant appealed against his conviction for rape and the sentence of 12 years imprisonment imposed by the National Court. As to conviction his primary ground of appeal was that the trial Judge erred in concluding that he sexually penetrated the complainant without her consent. As to sentence, it was argued that the trial Judge took into account a letter to the court from the appellant’s father, suggesting his son should not go to jail which was irrelevant and failed to take into account two mitigating factors, namely that the appellant was a school student and that the victim suffered no physical injury.

Held:

(1) The appellant’s defence at the trial was a general denial that he sexually penetrated the complainant at the time alleged, so he cannot profitably argue on appeal that sexual intercourse was consensual.

(2) The appeal against conviction was therefore dismissed.

(3) The trial Judge did not take into account the letter from the appellant’s father when deciding on the sentence but dealt with it as a separate matter. Thus no irrelevant consideration was taken into account.

(4) The trial Judge expressly considered the question of whether the appellant was a school student and whether the complainant had suffered physical injury and made no errors in dealing with those issues.

(5) The sentence imposed was within range taking into account all relevant facts or considerations and the appeal against sentence was therefore dismissed.

Cases cited:

William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against conviction and sentence for rape.

Counsel

L Yandeken, for the appellant
P Kaluwin, for the respondent

1. BY THE COURT: The appellant, Tony Mai, is appealing against his conviction for rape and the sentence of 12 years imprisonment imposed by the National Court.

2. The appellant, who comes from Tari, Southern Highlands and was aged about 19 at the time, was found guilty of raping his 18 year old cousin sister at the Gerehu sports complex, on the night of Sunday 19 June 2005. He was convicted on 20 April 2006 after a trial in which he pleaded not guilty, and sentenced on 31 May 2006.

3. As to conviction his primary complaint is that the trial Judge erred in concluding that he sexually penetrated the complainant without her consent. As to sentence, it is argued that the trial Judge took into account a letter to the court from the appellant’s father, suggesting his son should not go to jail which was irrelevant and failed to take into account two mitigating factors, namely that the appellant was a school student and that the victim suffered no physical injury.

DID THE TRIAL JUDGE ERR IN CONCLUDING THAT THERE WAS NO CONSENT?

4. This issue is raised in grounds 1, 2 and 4 of the notice of appeal.

5. Mr Yandeken, for the appellant, submitted that the trial Judge could not have reasonably concluded that there was no consent as there was evidence that (a) the appellant and the complainant had consensual sexual intercourse on three previous occasions and (b) the complainant had accompanied the appellant into an isolated area of Gerehu at night. The submission attempts to build upon the appellant’s sworn testimony at the trial that the complainant was his cousin-sister, that he was well known to her and that she had initiated a sexual relationship with him when she came from the village. The argument appears to be that the trial Judge ignored that evidence when concluding that there was an absence of consent.

6. We consider the argument to be ill-founded, for two reasons.

7. First, the learned trial Judge did not ignore any of the evidence. His Honour dealt with the appellant’s evidence of an ongoing sexual relationship with the complainant by weighing it against the complainant’s evidence, which was that she had never had sexual intercourse with the appellant before. His Honour rejected the appellant’s evidence after making a careful assessment of the credibility of the appellant and the complainant as witnesses. His Honour was not impressed at all by the appellant’s testimony as he considered that the appellant was lying and falsely portraying that he was like an illiterate villager when in fact, he has had a high school education. By contrast, his Honour regarded the complainant as a credible witness. His Honour concluded that the appellant’s claim of an ongoing sexual relationship with the complainant could not be believed, so he rejected that evidence. As to the claim that the complainant had accompanied the appellant into an isolated area of Gerehu at night, his Honour concluded that, that was true but that she had only done so after the appellant had falsely asked her to come for a walk with him to visit relatives. We can detect no error in the way that the learned trial Judge weighed the conflicting evidence before the court.

8. The second and more fundamental reason we have difficulty with the appeal against conviction is that, the appellant’s defence at the trial was a general denial that he sexually penetrated the complainant at the time alleged. He did not argue that the complainant consented, just that nothing happened. His explanation for the complainant reporting that she had been raped was that, their relatives had seen them together on the night in question and the complainant was scared that they would get angry with her for going around with him. Therefore she made up the story of being raped.

9. Given that his position at the trial was nothing happened, we cannot see how the appellant can now come before the Supreme Court and argue the issue of consent. Either there was no sexual penetration or there was sexual penetration with consent. The appellant cannot have it both ways. He cannot profitably argue on appeal that sexual intercourse was consensual, given that his defence at the trial was that there was no sexual penetration.

10. All of the grounds of appeal against conviction are centred on the consent issue and, given the nature of the appellant’s defence at the trial, we are of the view that they are all misconceived. Therefore we dismiss the appeal against conviction.

DID THE TRIAL JUDGE ERR IN THE EXERCISE OF HIS DISCRETION ABOUT SENTENCE?

11. This issue is raised in grounds 3, 5 and 6 of the notice of appeal.

12. Mr Yandeken submitted that the trial Judge made three errors. First, his Honour took into account a letter to the court from the appellant’s father, suggesting his son should not go to jail, which was irrelevant. Secondly, he failed to take into account that the appellant was a school student and this was a mitigating factor, which, if properly considered, would have lessened the sentence. Thirdly he failed to take into account that the complainant suffered no physical injury; and this was another mitigating factor that would have lessened the sentence.

The law

13. The law governing appeals against sentence 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.

14. 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.

15. Thus there are up to six steps for the Supreme Court to follow:

(a) Were there any identifiable errors of law made by the sentencing Judge?

(b) If yes, do the errors vitiate (ie invalidate) the exercise of the sentencing Judge’s discretion?

(c) If it is a vitiating error, the Supreme Court may quash the sentence and pass a substitute sentence.

(d) If there were no identifiable errors, is the sentence nonetheless obviously excessive?

(e) If yes, that is also a vitiating error and the Supreme Court may quash the sentence and pass a substitute sentence.

(f) 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.

16. In this case we start at step (a) as the appellant asserts that the trial Judge made three identifiable errors.

The father’s letter

17. After the appellant was convicted and before he was sentenced, his father wrote to the Public Prosecutor and sent a copy of the letter to the trial Judge, suggesting that the best thing would be to place his son on a good behaviour bond. His Honour was unimpressed by the father’s conduct, which he regarded as interfering in his functions as a Judge. The transcript shows that when handing down the sentence, his Honour explained to the father, who was present in court, that the father’s conduct was wrong. His Honour warned him against doing it again. We do not consider that his Honour did anything wrong when handling this issue in the way he did. His Honour dealt with the father after handing down the sentence. It was an important matter that required special and immediate attention.

18. We do not agree with Mr Yandeken’s suggestion that the best thing for his Honour to do was ignore the father’s letter and not to mention it to anyone. His Honour dealt with the matter appropriately. It is not something that he put any weight on in the exercise of his discretion in dealing with the appellant’s sentence. So there was no identifiable error.

The appellant’s school student status

19. His Honour took into account the claim that the appellant may have been a student at Jubilee Secondary School or Sogeri National High school. But the evidence was confusing. His Honour concluded that there was insufficient evidence to show that the appellant was a student. His Honour was indicating that if that evidence was forthcoming he would have given it some weight as a mitigating factor. But there was no clear evidence.

20. In view of his Honour’s assessment of the credibility of the appellant as a witness, we think it entirely reasonable for his Honour to want evidence of this matter. It is something very easy to prove. The evidence was not forthcoming so his Honour did not err by not taking this into account as a mitigating factor.

Lack of evidence of physical injury

21. His Honour acknowledged that the medical evidence showed that the complainant suffered no physical injury due to the rape. At page 5 of his written judgment, the learned trial Judge stated:

... I accept that no physical injury was caused to the victim, however I cannot rule out the mental trauma she suffered, especially from someone she considered a close relative and a neighbour as well in Gerehu. Although no serious force was used, the victim was nevertheless forced into submission despite the fact that she refused more than once to do what the prisoner was demanding.

22. We reject the submission that his Honour erred in his treatment of this issue.

Conclusion as to the exercise of sentencing discretion

23. The learned trial Judge did not make any identifiable error in any of the ways alleged in the grounds of appeal. It is unnecessary to go beyond step (a) outlined earlier.

24. As for the sentence of 12 years, though the notice of appeal does not allege that it was manifestly excessive, we have given this matter consideration and will state our views, so the appellant can be assured that we have given his case careful consideration.

25. As the learned trial Judge pointed out, rape is a very serious crime warranting an immediate and strong custodial sentence. Though there were aggravating circumstances (eg the existing relationship of trust between the appellant and the complainant, which the appellant breached), none were charged in the indictment. Therefore under Section 347(1) of the Criminal Code the maximum sentence that could have been imposed was 15 years. The appellant received three years less than the maximum. Given that this was a trial and that the appellant expressed no remorse when he was given the opportunity to address the court, it was an unremarkable sentence and in no way out of line with the sort of sentences that are these days being imposed for rape. His Honour took into account mitigating factors such as that the appellant was a youthful and first-time offender.

26. In all the circumstances this was an entirely reasonable exercise of discretion.

27. No good reason has been given for disturbing the sentence. Therefore we dismiss the appeal against sentence.

ORDER

28. This appeal is dismissed in its entirety.

Judgment accordingly.
____________________________

Powes Parkop Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent