Inai v State [2019] PGSC 134; SC1792 (28 February 2019)

SC1792

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 26 of 2017

COLLIN INAI

V

THE STATE

Wewak: David J, Kangwia J, & Lindsay J
2019: 26 & 28 February

APPEAL – CRIMINAL LAW - Application for leave and appeal against excessiveness of sentence – sentence of 20 years for sexual penetration with daughter under 16 years – Failure to establish errors by Trial Judge

CRIMINAL LAW - SENTENCING - Head sentence in excess of set guidelines – head sentence not to be structured for compliance – head sentence set in the exercise of sentencing discretion – No error by Trial Judge – leave refused – sentence affirmed

Cases Cited:
Ben Wafia v The State (2006) SC851
State v Biason Benson Samson (2005) N2799
Stanley Sabiu v the State (2007) SC866
Wiliam Norris v The State [1979] PNGLR 605

Counsel:
R. Pariwa & F. Kulala, for the Appellant
A. Kupmain, for the State

28^th February, 2019

1. BY THE COURT: This is a decision on an appeal against sentence. The Appellant was sentenced to 20 years on his guilty plea to one count of sexual penetration with circumstances of aggravation under s. 229A (1) & of the Criminal Code Act.
   
2. He filed a notice of appeal against the sentence. He also applies for leave as required by s 22 (d) of the Supreme Courts Act.
   
3. The brief facts before the Trial Judge were these;
   

On the night of 31 May 2016 the Appellant went into the bedroom of his 14 year old daughter Natalia Collin. He then removed her trousers and panty and sexually penetrated her. The victim woke up and tried to protest but the Appellant ignored it and continued until he ejaculated.

The notice of appeal filed by the Appellant in person raised four grounds.

4. On the Appellants behalf Mr. Pariwa submitted that the upshot of the grounds of appeal was that the sentence was excessive in the circumstances of the case.
   
5. It was submitted that an identifiable error existed where the Trial Judge determined 25 years as the head sentence or starting point in sexual penetration cases involving a father and daughter. It was submitted that the starting point should have been 15 years in line with the determination in the case of State v Biason Benson Samson (2005) N2799 which was accepted and endorsed by the Supreme Court in Stanley Sabiu v the State (2007) SC 866.
   
6. It was also submitted that the Trial Judge failed to exercise his discretion when he determined the head sentence to be 25 years and from it imposed a sentence of 20 years which was excessive under the circumstances of the case.
   
7. It was further argued that the head sentence should have been 15 years since it was only a single incident, no injuries were sustained and the Appellant pleaded guilty to the charge. Therefore the appeal should be allowed, the sentence of 20 years quashed and substituted with a sentence of 16 years.
   
8. For the Respondent Mr. Kupmain countered that the Trial Judge did take into consideration all the factors for and against the Appellant including the allocutus, the submissions by the lawyers and the Pre-Sentence Report when handing down his decision. He referred the Court to the Trial Judges comments on pages 25 to 38 lines 1 to 12 of the Appeal Book as supporting their contention.
   
9. It was submitted that the Appellant had not shown that the Trial Judge fell into an error that would affect the Judge’s sentencing discretion.
   
10. Mr. Kupmain argued that the Trial Judge was aware that the indictment under s 229A also pleaded a circumstance of aggravation under subsection (3) which carried a maximum prescribed penalty of life imprisonment. It was further argued that the Trial Judge also considered all the cases referred to by counsel and decided to start at 25 years and came down to 20 years as the sentence. It was suggested that the cited cases were made some years back and an increase was factored in the sentence imposed by the Court.
    
11. It was submitted that the trial judge did not make any error and the sentence on the face of it was appropriate under the circumstances and should be confirmed.
    
12. At the outset sentencing is an exercise of the Court’s discretion. The Supreme Court has determined that a Sentencing Judge or Court has a wide sentencing discretion at its disposal. (See Wiliam Norris v The State [1979] PNGLR 605 and Ben Wafia v The State (2006) SC 851)
    
13. The principle of law governing an appeal against sentence as expressed in William Norris v The State [1979] PNGLR 605 is that:
    

“...the appellant has the onus of showing to this court that the Trial Judge has made an error in Law or fact, which has the effect of vitiating the Trial Judge’s discretion on Sentence.”

14. In the present case the grounds of appeal relate to the requests and information given to the Probation Service by the wife of the Appellant in a bid to obtain an acquittal or suspended sentence. It was alleged that the Trial Judge did not consider the requests in the Pre-Sentence Report and imposed a sentence of 20 years. However in the pronouncement of his decision the Trial Judge did consider the Pre-Sentence Report which appears on page 32 of the appeal book.
    
15. The grounds raised have not identified any error committed by the Trial Judge. The Appellant has failed to discharge the onus on him to show this Court that an error in law or fact was made.
    
16. We agree with the Respondent that the Appellant has not met the requirements governing an appeal against sentence. We find no basis to disturb the Trial Judge’s exercise of sentencing discretion.
    
17. On the issue of head sentence Mr. Pariwa submitted that the law on a head sentence for sexual penetration with a child under 13 years was 15 years as determined in the case of the State v Biason Benson Samson (2005) N2799 which the Supreme Court endorsed in the case of Stanley Sabiu v the State (2007) SC866.
    
18. Therefore it was submitted that the Trial Judge erred when he set the head sentence at 25 years before sentencing the Appellant to 20 years; that had the Trial Judge set the head sentence at 15 years in line with the cited case law the Appellant’s sentence would have been lower.
    
19. Mr. Kupmain countered that the Trial Judge did not commit any error when he set the starting sentence at 25 years. The Trial Judge knew that the offence charged carried a maximum penalty of life imprisonment. He also considered the cases referred to and started with a sentence of 25 years before he came down to 20 years imprisonment. It was a gradual increase from the cited cases and the Trial Judge made no error.
    
20. We do not agree with Mr. Pariwa’s argument on the issue of head sentence. Firstly the Supreme Court determination in the Stanley Sabiu case did not endorse the determination in the Biason Benson case which suggested that the head sentence in a case involving a victim of 12 years should be 15 years.
    
21. The Supreme Court in the Stanley Sabiu case determined that in a case involving a victim aged 13 years the starting point should be 15 years. The Supreme Court further added that circumstances of the case and the aggravating or mitigating factors should be taken into account to ascertain whether the sentence should be more or less than 15 years.
    
22. We agree in principle with the Supreme Court determination and add that fixing of a head sentence or starting point in sentencing is in the entire discretion of the Court under the given circumstances. We further add that head sentences should not be structured to be complied with. It only interferes with the sentencing discretion of a Judge.
    
23. In the present case as alluded to earlier the Appellant has failed to identify or establish that the Trial Judge committed an error in law or fact that would vitiate the sentencing discretion of the Court.
    
24. We are also of the view that the sentence was not excessive in circumstances where sexual penetration was committed by a father on his blood daughter who was under 16 years old.
    
25. We are therefore fortified of the view that the Trial Judge did not err in the exercise of his sentencing discretion. We refuse leave and dismiss the appeal against sentence. The sentence of 20 years is affirmed.

__________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent