Dengis v State [2020] PGSC 159; SC2204 (31 July 2020)

SC2204

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 76 OF 2018

BETWEEN
GERARD DENGIS
Appellant

AND
THE STATE
Respondent

Waigani: Gavara-Nanu J, Mogish & Yagi JJ
2020: 27^th & 30^th July

REVIEW- Application for leave to review – Constitution; s. 155 (2) (b) – Failure to appeal within the prescribed statutory period – Explanation - Identifiable error of law – Injustice manifest in the sentence given - Interest of justice – Leave granted.

REVIEW- Application for review – Sentence- Exercise of sentencing discretion – Cumulative and concurrent sentences- Totality principle- Aggregate sentence more than prescribed maximum statutory penalty – Failure to consider all the circumstances of the case - Failure to exercise judicial discretion properly - Application granted.

Cases Cited:

Avia Aihi v. The State (No.1) [1981] PNGLR 81
Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205
Mase v. The State [1991] PNGLR 88
Public Prosecutor v. Terrence Kaveku [1977] PNGLR 110
The State v. Mako Rangi (2013) N5251
William Norris v. The State [1979] PNGLR 605

Counsel:

L. Mamu for the applicant
P. Kaluwin with G. Tugah, for the Respondent

30^th July, 2020

1. BY THE COURT: This is an application made under s. 155 (2) (b) of the Constitution in which the applicant seeks leave to review his sentence given by the National Court on 13 July 2015, after pleading guilty to three counts of incest.

2. The applicant was charged in an indictment that he on three unknown dates between 1^st October, and 31^st December, 2014, sexually penetrated one Betuel Tomwana (victim) who the applicant knew was his first cousin sister contrary to s. 223 (1) and (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002.

3. There is no dispute that the applicant and the victim are first cousins, the victim’s mother being a younger sister of the applicant’s mother. Two of the offences were committed inside their grandmother’s house and the third one was committed in their auntie’s house at Maren village at Napapar No. 2 Ward, inside Gazelle District. The offences were consensual.

4. It is incumbent on the Court to first decide whether the applicant should be granted leave to review his sentence. The onus is on the applicant to satisfy the requirements for grant of leave. This application is made following failure by the applicant to appeal his sentence within the prescribed statutory period of 40 days after the date of sentence. The applicant is obligated by law to explain why he failed to appeal his sentence within the prescribed statutory period. Furthermore, the applicant must show that there are serious issues warranting a grant of leave, and that there is injustice inherently manifest in the sentence which the applicant is likely to suffer if he is denied leave.

5. Notably, the applicant has explained that he did not know that he had the right to appeal his sentence within the statutory period of 40 days after the date of sentence, until he was advised of the right by CS officers. Then some Supreme Court staff who conducted an awareness among the prisoners including himself were advised that they had the right to seek judicial review of their sentences under s. 155 (2) (b) if they lost their right of appeal.

6. The Public Prosecutor, Mr Kaluwin of counsel for the State opposed the application, he argued that the applicant is not completely illiterate he has some education and there have been other prisoners like him who have appealed their sentences within the 40-day appeal period. Therefore, the applicant should have known his right to appeal his sentence within the prescribed statutory period. In Avia Aihi v. The State (No.1) [1981] PNGLR 81, the Supreme Court held that an applicant seeking to invoke the review jurisdiction of the Court under s. 155 (2) (b) must show strong and convincing reasons why he should be grated leave to review his sentence after he lost his right of appeal. The reasons given must also be proper and valid for the Court to exercise its inherent power in favour of the applicant.

7. Failure to appeal within the prescribed appeal period raises a serious legal issue which must be considered objectively. In this case, we consider that despite the applicant not being totally illiterate, the fact that he is not a lawyer and not having appropriate legal advice at the relevant time warrants the sympathy of the Court. Even those with some knowledge of the law may not appreciate the statutory requirements regarding their right of appeal and in this case, we do not find it unusual for the applicant to not to know or be aware of his statutory right of appeal. That said, the failure to appeal within the prescribed appeal period is not really the determinative factor. The determinative factor is whether there is an identifiable error of law that is clearly manifest in the way the learned trial judge exercised his sentencing discretion in applying the totality principle. The error is clearly demonstrated in the aggregate term of imprisonment the applicant was ordered to serve.

8. Thus, there is a strong convincing reason for the Court to grant leave and the Court grants leave.

9. Regarding the substantive review, it is trite law that the applicant has the onus to show error in the exercise of the sentencing discretion by the learned trial judge. See, William Norris v. The State [1979] PNGLR 605. The applicant has discharged this onus. This principle is equally applicable in judicial review applications with the usual requirement that the applicant must demonstrate error that manifests injustice in the sentence. The applicant was convicted of three counts of incest under s. 233 (1) of the Criminal Code. The prescribed maximum penalty for the offence of incest under this section is 7 years. In this case, the learned trial judge sentenced the applicant to 5 years for the first count. On the second count, the applicant was sentenced to 4 years. This sentence was ordered to be served cumulatively on the sentence for the first count. For the third and final count, the applicant was ordered to serve 5 years. This sentence was ordered to be served concurrently with the sentence for the first and second counts. Thus, the total term the applicant had to serve is 9 years.

10. The Public Solicitor, Mr. Mamu of counsel for the applicant argued that the aggregate sentence of 9 years the applicant was ordered to serve amounts to an error in the exercise of the learned trial judge’s sentencing discretion. The error lies in the fact that the maximum prescribed statutory penalty for incest under s. 233 (1) of the Criminal Code is 7 years, the aggregate sentence of 9 years exceeds this prescribed maximum penalty by 2 years.

11. Plainly the learned trial judge erred in ordering cumulative sentences for the first and second counts to exceed the prescribed maximum penalty of 7 years. Any aggregate sentence ordered by the court had to be either 7 years in a worst case or less in other cases. That was the only way the learned trial judge could properly exercise his sentencing discretion, of course with reasons. In Mase v. The State [1991] PNGLR 88 at 92, the Supreme Court in reiterating this principle said:

“...Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the circumstances.

...We do not consider that there is any hard and fast rule to be followed although it would be permissible for a sentencer to take into account the maximum penalties provided by law for each offence and whether or not each offence committed falls into the worst, most serious or less serious of its kind”. (Our underlining).

12. These are well established principles which should guide the courts in their application of the totality principle in imposing sentences. See also Public Prosecutor v. Terrence Kaveku [1977] PNGLR 110. In restating these principles, Miles J in Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 at 219 said:

"It is permissible and in most cases necessary that if the totality principle shows the aggregate to be excessive, then the head sentence is adjusted upwards to some extent . It must not be increased however to take it beyond any statutory maximum, nor indeed should it be extended beyond what might be regarded as the top of the range for that particular offence in the circumstances of the particular case". (Our underlining).

13. Thus, the overall circumstances of the particular case must be given due regard when applying the totality principle on sentence. In highlighting this consideration, David J in The State v. Mako Rangi (2013) N5251 said:

"...The totality principle requires that when cumulative sentences are imposed, a final review has to be made by the Court to determine whether the total is excessive or not in the whole circumstances: Public Prosecutor v Terrence Kaveku (1977) PNGLR 110; Mase v The State (1991) PNGLR 88. Applying the totality principle, I think the total sentence will be crushing on the prisoner due mainly to his advanced age which is usually applied as a special mitigating factor. In the exercise of my sentencing discretion, I would reduce the sentence by two years under the totality principle...". (Our underlining).

14. It follows that failure by the court to consider all the circumstances of the particular case would amount to an error of law because the result is the court would fail to properly exercise its judicial discretion. This would be obvious in a case where, as in this case, the aggregate sentence goes beyond the prescribed statutory maximum.

15. For these reasons, we grant review of the applicant’s sentence.

16. Mr. Mamu argued that we should substitute 2 years for the applicant’s sentence. Mr. Kaluwin on the other hand argued that we should substitute the sentence for 5 years, given that there is a serious breach of trust by the applicant and that the offence was repeated. Mr. Mamu agreed that the fact that the victim agreed to sexual intercourse is irrelevant and should have no bearing.

17. We are of the opinion that substituted sentence of 2 years would be too lenient given that this offence is prevalent throughout the country, and the statistics on this offence on underage girls in this Province are staggering to say the least. Imposing substituted sentence of 2 years would offend against the principle that the penalty must fit the offence committed. The sentence we impose must also reflect community values and expectations. This offence is detested and considered abhorrent in many communities therefore the sentence we impose must account for such community attitude and must have elements of strong specific and general deterrence. This principle was reiterated in Mase v. The State (supra), where the Court said:

“...It is not wrong in principle to have regard to the prevailing community perception of the relative seriousness of the different serious offences. Indeed, it is in our view most appropriate to so (sic.) have regard to the community perception of the relative seriousness of the different offences and to have it reflected in the level of sentences...We believe that there must be some relativity between all the offences, their seriousness and criminal culpability and the sentences imposed must reflect, in principle, the relative seriousness of the offences and their consequences...”. (Our underlining).

18. Having regard to these principles, we consider that the appropriate sentence is 5 years for the first count. For the second and third counts, the applicant is sentenced to 4 and 5 years respectively which will be served concurrently with the sentence for the first count. The effective sentence for the applicant will therefore be 5 years, less the period of custody. This term of imprisonment will run from the date of sentence

19. A new Warrant of Commitment will be issued to reflect the orders made.

Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State