Haro v State [2023] PGSC 151; SC2502 (30 November 2023)

SC2502

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 11 & 12 OF 2021

HOBAI HARO & LOLO BELAMI
Appellant

V

THE STATE
Respondent

Waigani: Geita J, Bona J, Miviri J
2023: 29^th & 30^th November

CRIMINAL LAW – sentencing – application for review of sentence of 26 years imprisonment for aggravated rape – whether any identifiable error made by sentencing Judge – whether sentence grossly excessive – Section 347 (1)(2) Criminal Code – no errors in law and fact made.

CRIMINAL LAW – sentence within range for four counts of rape.

PRACTICE AND PROCEDURE - aggravated rape under Section 347C - a starting point of 20 years in circumstances of simple aggravation, a higher sentence will depend on the seriousness and circumstances of aggravation.

Cases Cited:
William Norris v The State [1979] PNGLR 605

Counsel:
Mr. Hukula, for the Appellants
Ms. Tamate & Ms Kariko, for the Respondent

30^th November 2023

1. BY THE COURT: Hobai Haro and Lolo Belami seek review by the Supreme Court of their sentence of 26 years imposed by the National Court following their conviction on four counts of rape contrary to Sections 347 (1)(2) of the Criminal Code. A review of their convictions was abandoned.

2. Both men were sentenced on 17 May 2021 after a trial at Waigani. As for Hobai’s involvement in this rape, you took part in grabbing the victim and carried her to the back of Lolo’s house, (count 1), you raped her with your fist (count 2) as your two friends were holding her down, you taunted her to call for her brothers to come and help her, you again raped her by inserting your penis into her vagina, (count 3), you stood and kept watched as your two friends took turns in raping the victim (count 4).

3. As for Lolo Belami’s involvement in this pack rape, you were the first person to rape the victim with your penis (count 1), you remained and kept watch as your friends took turns in raping the victim (Count 2 & 3), you were also found guilty of procuring the rapes of Hobai Haro and Douba Kapina.

4. Leave to appeal sentence was granted on 14 March 2023 by His Honour Justice Cannings.

Grounds for appeal

5. Three grounds of appeal were relied upon thus:

1. The trial Judge erred in law and fact by not giving weight to mitigating factors she properly took into account;
   
2. The Supreme Court should infer that there are extenuating circumstances given the prevalent circumstances that the appellant’s identification made could have been mistaken;
   
3. The sentence of 26 years for each of the four counts is excessive, sentence of 15 years of each court to serve concurrently with time spent in custody be deducted is appropriate in the circumstances.
   

6. Appeal grounds 1 & 2 are easily dismissed as there is no contention. Mr Hukula, for the appellants, concede this to be so as the primary Judge took into account the mitigating factors including extenuating factors. As to appeal ground 3, Mr Hukula submitted that the sentence of 26 years imposed by the trial Judge is manifestly excessive and submitted for a sentence within the range of 15 years as a starting point.

7. Notwithstanding a range of cases put before the trial Judge in submission in circumstances, the victims in those cases were abducted and threatened with offensive weapons, the appellants in this case ought to be treated differently with lower sentences as none of those serious conditions were present. The trial Judge erred in not taking into consideration the circumstances of their case as no offensive weapons were used to commit this rape apart from Hobai Haro who inserted his fist into the victim’s vagina.

8. The Public Prosecutor, Ms. Tamate responded by submitting that appeal grounds 1 and 2 were adequately canvassed by the trial Judge: (AB pp 145 to 146 lines 1 to line 23. Grounds 1 & 2 has no merit and must fail.

9. As to Appeal Ground 3, defence submissions for a sentence from 8-18 as opposed to State submissions for a custodial sentence of 26 years were properly considered by the trial Judge, who settled for 26 years for all four counts to be served concurrently. (AB pp152 to 153 lines 8).

10. As to sentencing principles including any peculiar circumstances the trial Judge adequately addressed her mind to aggravating circumstances, mitigating circumstances, comparable cases, prevalence, including the trial Judge being mindful of a quantum leap in imposing such a sentence of 26 years. (AB at various pages from 147-163).

11. Our perusal of court transcripts and from our reading of the written judgment on sentence, did not reveal any errors made by the trial Judge. Besides the four cases that were put before the trial Judge, she remarked at page 157 AB of her judgment:

“that the aggravating in this case are multiple and serious: the offence took place in the company of two others, you took advantage of a vulnerable person who was intoxicated and suffering a visible head injury, excessive force was used to physically restrain your victim .....to a secluded place in the middle of the night and detain her for a considerable time.”

12. By our count the trial Judge addressed her mind to a plethora of comparable cases, numbering ten (22) cases. She was not limited in her choice of comparable cases and considered a starting point of 15 years. (State v Yali (2005) N2989, The State v Tomitom (2008) N3301 and The State v Mongi (2011 N4364 considered). The primary Judge said at page 158 at paragraph of her judgment:

“It also seems well settled that the starting point for aggravated rape, even before the inserting of 347C, was 15 years of imprisonment.”

13. We are therefore satisfied that having meticulously considered all those sentencing ranges; the trial Judge settled for a sentence she considered befitting for the rapes committed by the appellants. Furthermore, might we add here that the 15 years used as a starting point was in harmony with s. 347 (1)(2) Criminal Code as rape simpliciter.

14. We pause here to emphasise that the crime of rape appears to be spiralling upwards under the old scheme of things. Rape is not deterred. The crime of rape is becoming more prevalent and heinous, particularly within the comfort of one’s home and close acquaintances. This has obviously caused our members of Parliament to attend to the cries of our people by introducing tougher laws regarding rape with aggravation. The most recent Criminal Code (Amendments) Act 2022 under Section 347C, (Aggravated rape) came into operation on 12 April 2022 is testament to the cries of our women and girls. Predicated on the intentions of Parliament we now set a starting point of 20 years in circumstances of aggravation, a higher sentence will depend on the seriousness and circumstances of aggravation.

15. As regards the appellants’ plea for this Court to infer that there were extenuating circumstances regarding the appellants identification to be mistaken, Counsel of Defence did not point out to us any deficiencies in this regard. The trial Judge at p.158 AB said:

“The victim was well known to both of you. You had grown up together in the same community. Lolo Belami, you abused her close relationship with the victim to lure her into your yard. It was you who procured Hobai Haro, and Douba Kapina to commit the crime.”

During submissions Counsel of defence confirmed that this matter was also abandoned.

Law on Appeal.

16. Section 22(d) Supreme Court Act sets out the basic law of an appeal against sentence:

“A person convicted by the National Court may appeal to the Supreme Court- (d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.”

17. Grounds 3 touch on the Courts exercise of discretion on sentence. The law governing appeals against sentence is founded on Section 22 (d) Supreme Court Act. (William Norris v The State [1979] PNGLR 605).

“The principle is that the appellant has the onus of showing to this Court that the learned trial Judge has made an error in Law or fact, which has the effect of vitiating the trial Judge’s discretion on sentence.”

Court determination

18. Having considered the competing submissions of counsel, we have concluded, that the learned trial Judge made no identifiable errors contended for by the appellant. We are of the considered view that no identifiable errors was made by the trial Judge in imposing a sentence of 26 years which was supported in the case of rape supported by her findings. We therefore have no reasons to proceed to correct the sentence imposed. We are satisfied that the trial Judge made no error in law or facts which has the effect of vitiating her discretion on sentence.

Conclusion

19. We refuse the application and uphold the sentences imposed by the National Court.

ORDER

(1) The sentence passed by the National Court is upheld.

(2) The sentence passed against Hobai Haro by the National Court on 17 May 2021 in proceedings CR 487 of 2012 is confirmed.

(3) His Warrant of Commitment issued by the National Court on 17 May 2021 shall remain unaltered.

(4) The sentence passed against Lolo Belami by the National Court on 17 May 2021 in proceedings CR 489 of 2012 is confirmed.

(5) His Warrant of Commitment issued by the National Court on 17 May 2021 shall remain unaltered.

Judgment accordingly.
__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyers for the Respondent