Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019)

SC1775

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 141 OF 2017

ISRAEL WARTOVO
Applicant

V

THE STATE
Respondent

Waigani: Cannings J, Geita J, Nablu J
2019: 26 February, 1 March

CRIMINAL LAW – sentencing – application for review of sentence of 22 years imprisonment for persistent sexual abuse of a child – whether any identifiable error made by sentencing Judge – whether sentence obviously excessive.

The applicant sought and was granted leave to make an application for review of a sentence of 22 years imprisonment imposed by the National Court following his conviction, after trial, on one count of persistent sexual abuse of a child contrary to Section 229D of the Criminal Code. The trial judge found that the victim was the applicant’s 13-year-old adopted daughter and that on three occasions the applicant had sexually penetrated her. The applicant argued that the trial judge made a number of identifiable errors and imposed a sentence that was obviously excessive.

Held:

(1) In applying for review of a sentence, the applicant is in the same position as a person appealing against the sentence: he must show that the trial Judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive.

(2) The trial Judge made no identifiable errors, as his Honour: took into account that the applicant had no prior convictions; properly gave little weight to the applicant’s expression of remorse; properly gave no weight to the issue of compensation as it was not raised by the applicant in his allocutus or in his lawyer’s submissions on sentence; properly took into account that sexual penetration had occurred on three occasions as that was the judge’s finding of fact in the decision on verdict; and properly rejected the State’s submission that the applicant had infected the victim with a sexually transmitted disease.

(3) Given that the maximum sentence was life imprisonment, the sentence of 22 years imprisonment was not exceptional, given the gravity of the offence, and was in line with a number of other National Court cases of similar gravity, and thus was not excessive, let alone obviously excessive.

(4) The application for review of the sentence was refused.

Cases cited

The following cases are cited in the judgment:

Ben Wafia v The State (2006) SC851
Eddie Peter v The State (2006) SC1340
Ju Maima v The State (2016) SC1504
The State v Cletus Barak (2018) N7398
The State v Israel Wartovo, CR Nos 514 & 515 of 2014, 11.05.17 unreported
The State v Steven Makai (2010) N3914
William Norris v The State [1979] PNGLR 605

REVIEW

This was an application for review of a sentence of 22 years imprisonment for the crime of persistent sexual abuse of a child.

Counsel

I Wartovo, the applicant, in person
No appearance for the Respondent

1^st March, 2019

1. BY THE COURT: Israel Wartovo seeks review by the Supreme Court of the sentence of 22 years imprisonment imposed by the National Court following his conviction, after trial, on one count of persistent sexual abuse of a child contrary to Section 229D of the Criminal Code.

2. The trial judge, Justice Kirriwom, found that the victim was the applicant’s 13-year-old adopted daughter and that on three occasions in the space of three months the applicant sexually penetrated her.

3. The applicant argued that the trial judge made a number of identifiable errors and imposed a sentence that was obviously excessive.

LEAVE TO REVIEW

4. At the commencement of hearing this matter the Court discovered that leave to seek review of the sentence had not been granted 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.

5. It was necessary for the applicant to be granted leave to seek review, as he had not lodged an appeal within the time prescribed by the Supreme Court Act. We granted leave, as there was no opposition to it, as there was no appearance on behalf of the State, and proceeded to hear and determine the application for review on its merits.

APPROACH TO REVIEW OF SENTENCES UNDER SECTION 155(2)(b) OF THE CONSTITUTION

6. In hearing an application for review of a sentence the Supreme Court applies the same principles it applies when hearing an appeal against sentence (Ju Maima v The State (2016) SC1504). That is, the applicant must show that the sentencing Judge either:

• made an identifiable error that has the effect of vitiating the sentence; or
  
• imposed a sentence that was obviously (not merely arguably) excessive.
  

7. These principles are set out in the leading case William Norris v The State [1979] PNGLR 605 and in numerous other Supreme Court cases including Ben Wafia v The State (2006) SC851 and Eddie Peter v The State (2006) SC1340.

GROUNDS OF REVIEW

8. The applicant submitted that the trial Judge made a number of identifiable errors in the exercise of his discretion as to sentence, in that his Honour:

1. failed to take account of mitigating factors that the applicant had no prior convictions and expressed remorse for his actions and expressed a willingness to compensate the victim;
   
2. failed to consider that the applicant only sexually touched the victim, but did not sexually penetrate her;
   
3. erroneously took into account as an aggravating factor that the applicant had infected the victim with a sexually transmitted disease (STD).
   

9. The applicant also submitted that the sentence was manifestly excessive.

DID THE TRIAL JUDGE MAKE ANY IDENTIFIABLE ERRORS?

10. We have carefully considered the submissions of the applicant in light of the written judgment of the trial judge (The State v Israel Wartovo, CR Nos 514 & 515 of 2014, 11.05.17 unreported).

1 Failure to take account of mitigating factors

11. His Honour expressly took into account that the applicant had no prior convictions. It was clearly regarded as a mitigating factor.

12. His Honour also noted that the applicant, in his allocutus, expressed remorse for his actions. However, his Honour properly gave little weight to it due to the applicant’s decision to plead not guilty, which required his daughter to give evidence in public of the dreadful things he did to her.

13. His Honour properly gave no weight to the issue of compensation as it was not raised by the applicant in his allocutus or in his lawyer’s submissions on sentence.

2 Not considering evidence about sexual touching

14. The applicant’s argument that the trial Judge erred by ‘not considering’ his evidence that he only sexually touched the victim, is flawed. His Honour did consider that evidence in his decision on verdict. He rejected it. His Honour preferred the evidence of the victim and concluded:

Having considered all the evidence in the entire case, in my view, there is not a single doubt in my mind that the State has proven its case beyond reasonable doubt, in that the accused is not only guilty of persistent sexual abuse of a child by mere sexual touching of the victim or by committing indecent sexual acts to the victim, but he is also guilty of sexually penetrating the victim on all those occasions alleged by the victim by inserting his penis into her vagina on all three occasions, her anus once and her mouth once.

15. Those were his Honour’s findings of fact for the purposes of the verdict. It followed as a matter of course that the applicant would be sentenced on the basis of those facts. His Honour clearly did not err.

3 Regarding STD infection as an aggravating factor

16. The applicant’s argument that the trial Judge erred by regarding the allegation that the applicant had infected the victim with a sexually transmitted disease as an aggravating factor on sentence, is also flawed. His Honour did not regard that as an aggravating factor. Quite the contrary. His Honour noted that the State argued that it was an aggravating factor. But he rejected the argument. His Honour stated:

It is a serious aggravating factor where the offender infects his victim with a sexually transmitted disease, including HIV/AIDS.

I have considered this carefully and without assistance of a medical expert on diseases of the body where transmitted through sexual contact but not discovered until a year after the last act of intercourse or sexual penetration. I have difficulty concluding that the prisoner passed on this disease to the victim. As the law is very clear when there is a doubt, that doubt must be exercised or resolved in favour of the accused person.

17. In short, we are not persuaded that the trial judge erred in any of the ways contended for by the applicant. There are no identifiable errors in the sentence.

WAS THE SENTENCE OF 22 YEARS OBVIOUSLY EXCESSIVE?

18. In assessing the argument that the sentence was obviously excessive it must be borne in mind that, as pointed out by the trial judge, the maximum sentence for this offence is life imprisonment, by virtue of Section 229D of the Criminal Code, which states:

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section—

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section—

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

19. Given that the maximum sentence was life imprisonment, the sentence of 22 years imprisonment was not exceptional, especially in light of the gravity of the offence and the fact that the applicant pleaded not guilty, which meant that the victim was required to give evidence in open court.

20. We consider that the sentence is in line with other cases of similar gravity. For example, in The State v Steven Makai (2010) N3914 the offender was convicted after a trial of one count of persistent sexual abuse of a child, contrary to Section 229D(1) of the Criminal Code, in circumstances of aggravation. The offender was a man aged 30 years. The abuse was constituted by three occasions of sexual penetration committed over a 19-month period when the victim was aged nine or ten. She was his sister-in-law. The sentence was 20 years imprisonment. In The State v Cletus Barak (2018) N7398 the offender pleaded guilty to a Section 229D offence, constituted by sexual penetration on several occasions of his 15-year-old adopted daughter. The sentence was 19 years imprisonment.

21. The sentence of 22 years imprisonment was not excessive, let alone obviously excessive.

CONCLUSION

22. We will refuse the application and affirm the sentence imposed by the National Court.

ORDER

(1) The application for review of the sentence passed by the National Court is refused.

(2) The sentence passed by the National Court is affirmed.

(3) The application is thereby determined and the file is closed.

Judgment accordingly.

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