SC2689

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 30 OF 2021

BETWEEN
JOHN MUGI
Appellant

AND
THE STATE
Respondent

WAIGANI:     PITPIT J, KAUMI J, TUSAIS J
14 DECEMBER 2022; 28 JANUARY 2025

CRIMINAL LAW – Supreme Court – Appeal against conviction and sentence  – Trial Judge in best position to assess witness evidence and credibility – Question of who to believe – Victim’s evidence preferred over appellants – No error shown in conviction and sentence– Appeal dismissed – Conviction and sentence affirmed.
Cases cited

Rolf Schubert v the State [1979] PNGLR 66 
 Charles Ombusu v The State [1996] PNGLR 335
Kuman v Kua (2021) SC2077
Lati v The State (2015) SC1413 
 John Beng v The State [1977] PNGLR 115
Peter Wararu Waranaka v Gabriel Dusava [2009] PGSC 11 
 Labi Amaiu v Andrew Mald [2009] PGSC 38
Roland Tom & Kalen Kopen v State (2019) SC1833 

Counsel

Mr. F. Kuvi for the appellant
Ms. C. Langtry for the respondent

DECISION ON APPEAL

1.	BY THE COURT: This is an appeal against conviction for persistent sexual abuse contrary to section 229D (1) and (6) of the Criminal Code. He also appealed against sentence of 12 years.

2.	The prosecution alleged that between the 1st of January 2018 and the 30th of June 2019, the appellant persistently sexually abused the victim JR, a six year old child. The appellant was a serving policeman living at Gordons Police barracks in Port Moresby. He comes from Simbu Province. JR is the daughter of another policeman who is also from Simbu. They all lived at the same barracks and attended the same church. JR often visited the appellants’ house and called him ‘Daddy John’. The two families were very close.

3.	On three occasions during the specified period, the appellant touched her vagina, inserted his finger into her vagina and made her touch his penis. Prosecution called two witnesses including the victim and her mother. Several documents were also tendered by consent including police Record of interview and a medical report.

4.	The appellant raised many grounds in his own notice of appeal filed on 20 August 2021. A supplementary notice of appeal was filed on 26 September 2021. Those are in order. At the hearing, the lawyer for the appellant raised a new ground of appeal asserting unfairness. He did so without giving notice and without seeking leave of the court to amend the notice of appeal. The Respondent objected on the basis that it was in breach of Order 7 Rule 10 of Supreme Court Rules. It is well established that a notice of appeal may only be amended in special circumstances: see Rolf Schubert v the State [1979] PNGLR 66 and Charles Ombusu v The State [1996] PNGLR 335. We refused to consider the additional grounds and did not grant leave because none was sought.

5.	The main questions on appeal are firstly whether the verdict on the indictment is unsafe or unsatisfactory.  The second issue is whether the head sentence of 12 years is excessive in the circumstances.

6.	The appellant was tried on 18 May 2021, by the National Court at Waigani after he pleaded not guilty to the charge. On 25 June 2021, he was found guilty of persistent sexual abuse and on 16 August 2021, he was sentenced to 12 years imprisonment. The pre-trial custody period of 2 months 5 days was deducted, leaving the balance of his sentence at 11 years 8 months.

7.	The prosecution called two witnesses and tendered several documents by consent. Those documents included a medical report and Record of interview. The medical report confirmed injuries around her vagina and anus. In the interview, the appellant admitted that he accidentally touched the victim’s vagina once. The appellant also admitted that the victim child had seen him naked while he took showers in his house. He also made admission that he often viewed images of a sexual nature on Facebook.

8.	According to the victim’s story, the appellant used to touch her vagina on many occasions. She gave evidence of an incident that happened inside the appellant’s car when the two of them were alone inside a car parked in a field close to the appellant’s house. The victim was seated in the back seat. The appellant reached back and pushed his finger into the victim’s vagina.

9.	On other occasions, the appellant would touch her vagina while they were alone inside the appellant’s house. She told of one incident when the appellant touched her vagina while both of them were sitting down on chairs in the living room. The appellant’s wife was washing utensils outside the house at the time. The victim said that when he touched her, she felt pain.

10.	The victim also gave evidence of the appellant telling her to hold his balls (penis / testicles). She told the court that on one occasion while they were inside the appellant’s house he called her while he was in the shower and told her to hold his balls. The appellant’s wife was outside the house at the time.

11.	The victim’s mother gave evidence that in September 2018, her child said that John Mugi told her to hold his balls. When she said this, she demonstrated by rubbing her hands. At the time the mother did believe her and thought she was making fun. She told the court that in June 2019, the child had her bath and as the mother was drying her off, the child told her not to touch her vagina or anus because she was feeling pain there. When asked about this the child told her that John Mugi inserted his finger into her vagina when they were alone in his car after dropping off his wife at the market to sell ice blocks. The child told her that the appellant used to show her bad pictures and told her that he would do the same things to her. The mother believed her that time. After telling the appellants wife about what the appellant did, she reported the matter to the police and then took her daughter to the clinic for medical check.

12.	The appellant gave sworn evidence in his defence. He said he knew the victim very well and she called him father. He told the court that on June 23rd, 2019, he finished work at 7 am. He drove his wife to Gordons market then returned with his own daughter and the victim to his house. He told the two of them to leave and then went to the offside seat, folded it back and slept. While he was asleep the victim returned and touched his stomach. He reacted by flinging out his hand which landed on the child. Later that afternoon his wife told him that he was accused of sexually assaulting the little girl. He denied doing that.

13.	He also gave evidence that the victim on one occasion watched him while he was taking a shower in his bathroom. Otherwise, the appellant denied sexually touching the child in his house. His wife also gave evidence in support of her husband.

14.	The appellant submitted that the totality of evidence of the events gave rise to inconsistencies and so the conviction was unsafe, and the matter should be remitted for retrial. Mr Kuvi referred to the following as matters that amounted to inconsistency and unsafeness of verdict.

•	The appellants daughter Delilah was present in the car on 23 June 2019 so the sexual assault could not have happened.
•	The appellant’s wife was outside the house during the occasions when the child claimed that she was sexually abused inside the house. The wife did not hear any shouts or screams so the child was lying.
•	The victim said she was not brought to a doctor so the medical report could not be relied on.
15.	On the issue of sentence, appellant argued that there was only one incident of digital penetration proven. There was only one aggravating factor of breach of trust. It was submitted that this was not a serious case and a suspended sentence on condition of compensation payment should have been imposed. Counsel also argued that the trial Judge took into account irrelevant matters when he stated that the appellants actions were a result of viewing pornographic material on his phone. It was submitted that the sentence of twelve years was excessive and 10 years or less should be substituted.

16.	In response the state prosecutor submitted that the inconsistencies raised were minor and not such as to render the verdict unsafe or unsatisfactory. Counsel submitted that the child’s evidence was corroborated by the mother’s sworn evidence, by the medical report and by the appellant himself in his record of interview at Q & A 19 and 24. Therein the appellant had admitted to touching the victim’s vagina inside the car when he flung out his arm after she disturbed him in his sleep. Appellant also admitted that the child did go to the bathroom when he was in there.

17.	In relation to appeal against the sentence, Ms Langtry submitted that 12 years was not excessive. She referred to submissions made by defence counsel who asked the court to impose a sentence between 6 to 16 years. The state lawyer pointed out that 12 years fell within that range and was only slightly over the term of 10 years suggested by the appellant on appeal. It was also argued that the case had many aggravating factors including the following:

•	Appellant was a policeman of 20 years service
•	Breach of trust when he abused a child he treated as a family member
•	Repeated sexual abuse over a long period
•	Prevalence of offence.

18.	The first issue before us is whether the appellant was the one that persistently abused the victim sexually, because the appellant denied the charge.To succeed on an appeal against conviction an appellant must by virtue of s.23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial. In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred. If not, it may dismiss the appeal, Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

19.	 No doubt the trial judge believed the victim’s story. It is an established principle of law that being the trial judge, he was in a better position to assess and decide whether the victim or the appellant was the truthful witness having had the benefit of observing their demeanor in the witness box. See, Peter Wararu Waranaka v. Gabriel Dusava [2009] PGSC11; SC980 and Labi Amaiu v. Andrew Mald [2009] PGSC 38; SC 1036. We must therefore be careful not to disturb the trial judge’s findings unless there is clear basis to do so. We can only disturb the finding of the trial judge if there is an error or errors by the trial judge in finding the applicant guilty of the offence. The onus is on the applicant to clearly establish error in the trial judge’s decision for this Court to overturn that finding.

20.	We note that the trial judge was very careful in coming to his decision in accepting the victim’s story to convict the appellant of the offence. The trial judge clearly did not believe the appellant’s denial of the offence. He found the appellant to be evasive and to have given self-serving evidence. The learned trial Judge found that the victim’s evidence was in fact corroborated by the appellant himself in his record of interview. At Q &A 19 the appellant said this:
..” I played game on my mobile phone and fell asleep. I was fast asleep. That girl came and hit me on my stomach. I was surprised and raise my hand and as my hand moved up … her thighs to her vagina. So if I scratch or my finger went in, that I would not know.”
21.	Regarding the appellant’s challenge to the medical report we note that it was tendered by consent of defence counsel during trial. The law regarding finding of facts and conclusions based on statements and other documents admitted into evidence with the consent of defence has been settled in our jurisdiction. In the case of Roland Tom & Kalen Kopen v State (2019) SC1833 the Supreme court decided that the trial Judge had not made an error of law when he relied on evidence tended by consent to convict.

22.	In Tom’s case (supra) the Supreme Court said this; ... “Subject to well-defined exceptions, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: The Queen v Baden-Clay (2016)258 CLR308. It was permissible for the learned trial judge to rely on statements admitted into evidence by consent. There was no material irregularity in the conduct of the trial, nor any error of fact or law as a result: Fred Bukoya v The State (2007) SC887 distinguished”. 

23.	We therefore reject appellants submissions that the trial Judge erred by relying on the medical report. That report shows multiple bruises and abrasion around the child’s genital and anal areas. It was done shortly after the child complained of the sexual assault inside the appellant’s car.

24.	We also do not accept the appellants’ submissions that the conviction is unsafe. The appellant has not pointed the court to any particular error. 

25.	The legal principles in an appeal against sentence are well settled. The Supreme Court in William Norris v The State [1979] PNGLR 605 set them out as follows:

“ So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”

26.	In an appeal against sentence, the onus is on the appellant to persuade the Court that a more lenient sentence is warranted. He must show some error on the part of the primary judge in imposing that sentence. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access the proper sentence than is a court of appeal. 

27.	Sections 6 and 23 (4) of the Supreme Court Act provide that an appeal to the Supreme Court is a rehearing on the evidence given in the National Court and that the Supreme Court shall uphold an appeal if in its opinion some other sentence, whether more or less severe is warranted in law and have been passed, it shall quash the sentence and pass the other sentence for it, and in any other cases shall dismiss the appeal.

28.	The appellant has not satisfied this court of errors made by the trial Judge. The sentence of 12 years is not excessive. This case is aggravated by the factors referred to by the state prosecutor. Trial Judge observed that the appellant was a serving law enforcement officer and had sworn to uphold the law.

29.	For the foregoing reasons, the appeal against conviction and sentence are both dismissed. 

Orders accordingly.

________________________________________________________________
Lawyers for the applicant: Francis Kuvi and Associates Lawyers
Lawyer for the respondent: Public Prosecutor