Palma v State [2008] PGSC 56; SC1214 (1 May 2008)

SC1214

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 30 OF 2006

BETWEEN:

PAUL PALMA
Appellant

AND:

THE STATE
Respondent

Mount Hagen: Kirriwom, David & Hartshorn, JJ.
2008: 29 April & 1 May

CRIMINAL LAW – Appeal – Rape – Whether there is consent where sexual activity induced by person in a position of trust, power and authority – No consent – Appeal dismissed – s. 347, 349A Criminal Code

Sentence – Rape – Indictment not containing charge of circumstances of aggravation - Maximum penalty for rape simpliciter 15 years – Prisoner sentenced to 16 years - Error on face of record – Miscarriage of justice - Sentence quashed – Sentence of 10 years substituted – s. 347(1) and (2) Criminal Code

PRACTICE AND PROCEDURE – Rape - Indictment must charge circumstances of aggravation intended to be relied on – s. 528(2) Criminal Code

Facts:

The Appellant appealed the conviction and sentence imposed upon him following a trial in Kundiawa on 16th August, 2006 on a charge of rape contrary to section 347(1) of the Criminal Code.

Held:

The Appeal against conviction is dismissed and the conviction is confirmed. The Appeal against sentence is allowed and the sentence is reduced to 10 years.

Cases cited:

The State v Thomas Binga (2005) N2828
The State v James Yali (2005) N2989
The State v Apolo Kesu (No. 2)(2006) (delivered 20/6/06)
The State v Lucas Benjamin Urareo (No.1) (2005) N3086

Counsel:

Appellant in person
S. Kesno, for the Respondent

DECISION

1st May, 2008

1. BY THE COURT: The Appellant appealed the conviction and sentence imposed upon him following a trial in Kundiawa on 16th August, 2006 on a charge of rape contrary to section 347(1) of the Criminal Code.

2. The facts of the case were that the victim, then 17 years old, was in Kundiawa Town with her little brother sitting near the bus stop. While there they were caught chewing betelnut by the Appellant. He was a town ranger engaged by the Kundiawa Town Authority to maintain cleanliness within the township. Chewing betelnut within the town area, it seems, was against the Authority's policy in its drive to keep the township clean.

3. Upon catching the victim, the appellant imposed a K50 on the spot-fine. The victim did not have any money so she sent her brother to inform their mother of her predicament so that the mother could pay the fine. Meanwhile the Appellant told the victim to follow him. The Appellant led the victim to a house belonging to someone he knew.

4. The victim thought that she was being taken to an office where she was to be charged and would pay a fine. The house they went to appeared to belong to a policeman whose wife was there but who left shortly afterwards leaving the Appellant and victim behind.

5. While they were alone the Appellant used force and had sexual intercourse with the victim against her will. After the incident the Appellant left leaving the victim in the house when the policeman's wife returned home. The policeman's wife escorted the victim to a bus stop. On the way the victim met her mother who had been searching for her. The victim told her mother what had happened and the incident was reported to the Police. The Appellant was subsequently arrested and charged with rape.

6. The issue before the court was one of consent. After hearing the evidence, the trial judge found that no consent had been given and convicted the Appellant. He was sentenced to 16 years imprisonment in hard labour.

7. In his appeal the Appellant maintained that the victim had consented. As to the conviction, the issue on appeal is whether there was consent? The Appellant contended that the victim was his girlfriend with whom he had sex many times on previous occasions.

8. He further contended that the allegation of rape was made afterwards as the victim's mother had forced her to do so and not because the victim did not consent to have sex. Further, the Appellant contended that the victim had many chances to escape but had not done so and had willingly led the way to the location where they had sex. As such the victim must be taken to have consented to having sex with him.

9. The trial judge dealt with this issue of consent in his judgment at pp.77-78 of the appeal book where he said:

"..[T]he likely scenario was that the victim was in trouble and Edmult had to do something to help her. I reject the accused's unsworn statement that the victim told her brother to go back to town. If I accept that statement then it would be unusual to find the brother reporting the incident to the mother. The desperate situation of the victim was conveyed to the mother by Edmult. In my view this is evidence of non-consent.

The fact that the victim walked with the accused to Ramsy's house without any protest is not indicative of consent. The accused was a town ranger and obviously wielded that authority in Kundiawa town. When he accosted the victim, he ordered her to pay a spot fine of K50 and then to go with her to Ega Creek. Under those circumstances the victim could not have been expected to complain. After all she had been caught chewing betel nut by the ranger. She knew the consequences. She knew she would have to pay K50. She had no choice but to abide with the accused's orders. She accompanied the accused under the impression that she was going to be fined.

Along the way she felt that the accused would do something to her. She said she did not make any protest to any person. She was criticized for that. She was unfamiliar with the place that she was taken to. She did not know any persons including Ramsy's wife. The odds were against her. Her lack of protest to any person whilst walking with the accused to Ega Creek has been sufficiently explained. She was new to the environment, and I do not find her lack of protest suggestive of consent.

I also accept her evidence that she did not consent to the act of sexual penetration. I was impressed with the demeanour of the victim."

10. For the Appellant to succeed in his appeal on conviction he must show that the trial judge did not correctly analyse the facts and erroneously applied the law on misapprehended facts to reach his verdict.

11. The extract of His Honour's judgment quoted above clearly summarizes the appellant's argument in the court below and how His Honour dealt with the issue of consent. We add that the victim appears to have believed that she was under the detention of the ranger/Appellant after violating a town rule/law.

12. The victim, a defenseless girl/child of 17 years and a Grade 8 student in town with her brother, was at the mercy of the Appellant once she was apprehended for chewing betelnut. She was not free to walk away although she feared something terrible might happen in the strange place to where she was being taken.

13. We note that even if the victim had agreed to have sex with the Appellant because he had told her that she would be in more trouble with the Town Authority if she did not as she had no money to pay a fine; that would not have been consensual sex. It would have been sex under duress as a result of threats and intimidation.

14. Further, when the age disparity between the 17 year old victim and the Appellant in his 40's is considered, there can be little credibility given to his claim that a female of the victim's age had maintained a sexual relationship with a man almost three times her age over a period of time without her parents being aware.

15. We find no error in His Honour's conclusion on the facts as to the issue of consent and are of the view that the conviction is safe and should not be disturbed.

16. The appellant also contended that the sentence imposed upon him was severe in light of the circumstances of the case. The State does not oppose the appeal against the sentence of 16 years for the reasons given below.

17. We agree that the appeal against sentence must be upheld as the trial judge has exceeded the statutory jurisdiction in imposing a sentence in excess of the maximum prescribed under s.347(1) Criminal Code.

18. As the charge against the Appellant was one of rape simpliciter under section 347(1), the maximum sentence that could have been given was 15 years. The law is quite clear that the maximum prescribed must be reserved for the worst type of case. Was the rape committed in this instance one of the worst? This is a question of fact to be determined in the light of the circumstances of the case.

19. The trial judge properly acknowledged that the charge against the prisoner was brought under section 347(1) which carried a maximum punishment of 15 years. He however held the view that the offence was committed with circumstances of aggravation in the context of section 349A Criminal Code as the prisoner was a ranger and a man who commanded authority in Kundiawa town on behalf of the Town Authority.

20. As such he held a position of trust that authorized or enabled him to charge those violating town authority laws and impose fines on defaulters. By this authority, it was within his right to demand payment of a fine from the victim when he caught her chewing betelnut. That authority did not give him any license to commit rape on defaulters on the pretext of enforcing the rules.

21. The indictment does not charge the appellant for committing rape with circumstances of aggravation. The law under s. 528(2) Criminal Code is quite explicit. It states: "Subject to subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment."

22. Where the prosecution wishes to rely on any circumstances of aggravation (as defined under section 349A), these must be charged in the indictment. The reason is quite plain. The accused must have the opportunity to refute those allegations. The law requires that a charge contain the essential ingredients of an offence. If anything beyond those essential ingredients is alleged, it must be clearly pleaded.

23. Some recent authorities that have considered and applied s.528(2) include The State v Thomas Binga [2005] N2828, The State v James Yali [2005] N2989, The State v Apolo Kesu (No.2)[2006] (delivered 20/6/06) and The State v Lucas Benjamin Urareo (No. 1) (2005) N3086.

24. We are unable to locate any Supreme Court cases on this point but agree with the reasoning in the cases cited.

25. In an apparent attempt to have the Courts impose heavier penalties in respect of sexual offences against women and children, the National Parliament amended the Criminal Code in 2002. The amended legislation now creates different categories of sexual offences and has the effect of requiring relevant State agencies within the criminal justice system to be diligent in the exercise of their law enforcement and prosecutorial functions by ensuring that appropriate and correct charges are laid against those arrested for such crimes.

26. Mr. Kesno submits that applying the sentencing guidelines set out in John Aubuku v The State [1987] PNGLR 267 an appropriate sentence should have been between 10 and 12 years. This is a one on one case where the victim did not suffer any physical injuries other than sexual assault by a person in authority misusing his position. Such a case comes within category 2 which states that "for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point".

27. We are mindful that John Aubuku v The State (supra) was decided over 2 decades ago. Sentences for rape and other sexual offences have increased considerably since then to reflect the increasing rate of crimes of this nature today. We therefore do not disagree with Mr. Kesno that the range he proposes is consistent with recent trends in sentencing in rape cases.

28. We note that in The State v James Yali [2006] N2989 a sentence of 12 years was imposed for a single one on one act of rape committed against the 17 year old victim who was the prisoner's wife's younger sister.

29. Considering all the mitigating circumstances referred to in page 91 of the Appeal Book, including the initiative the Appellant took in coordinating and maintaining the beautification and cleanliness campaign in Kundiawa Town by involving the village youths, an appropriate sentence in our view should have been 10 years imprisonment in hard labour.

30. Using the powers vested in this court by the Constitution, we quash the sentence of 16 years imposed by the National Court and substitute a sentence of 10 years. From this we deduct the time already spent in custody which is 3 months of pre-trial detention and 1 year 8 months and 15 days post-conviction which is a total of 1 year, 11 months and 15 days. This leaves the Appellant with 8 years and 15 days to serve. A fresh warrant is issued to reflect this change.

31. In conclusion, the Appeal against conviction is dismissed and the conviction is confirmed. The Appeal against sentence is allowed and the sentence is reduced to 10 years.

Appellant in person
Acting Public Prosecutor: Lawyer for the Respondent