Lawrence Hindemba v The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Injia J, Sawong J
• Judgment Date: 27 October 1998
• Citation: (1998) SC593
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC593

Supreme Court: Woods J, Injia J, Sawong J

Judgment Delivered: 27 October 1998

SC 593

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 81 OF 1997

BETWEEN:

Lawrence Hindemba

-Appellant-

AND:

The State

-Respondent-

Wewak : Woods, Injia & Sawong jj.

1998 : October, 26 — 27

Criminal Law — Appeal against sentence — Prisoner appeal — Appeal
against 10 year sentence for rape — Power of Supreme Court to increase sentence -
Sentence increased to 15 years — Supreme Court Act (Ch. No. 37), Section 23(4),
Criminal Code (Ch. No. 262), Section 347.

CASES CITED in the judgment

The King -v- Ettridge [1909] 2 K.B. 24.

Harris -v- The Queen [1953-54] 90 CLR652.

Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205.

John Aubuku -v- The State [1987] PNGLR 269.

The State -v- Richard Aimuna Koupa [1987] PNGLR 208.

The State -v- Peter Kaudik [1987] PNGLR 201.

The State -v- Thomas Waim [1995] PNGLR 187.

Sinclair Matagal -v- The State SCRA 95 of 1996 (4 June 1998).

Appellant in person

C. Manek for the Respondent

27 October 1998

BY THE COURT: On 27 October 1998, we heard this appeal against sentence only and dismissed the appeal, quashed the sentence of 10 years for rape imposed by the National Court and increased the sentence to 15 years. Due to time limitations we have on circuit, we gave brief reasons then and indicated we would give full reasons later. This we now do.

On 27 October 1998, our brief reasons were:

"The appellant appeals against the sentence of ten (10) years imposed for the rape of a small ten (10) year old school girl on the 16th April 1997. The appellant grabbed the victim as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let the victim go when the victim's sister intervened to free her and had sexual intercourse with the victim by force. During the encounter the victim was in immense pain and her vagina bled. The doctor's report confirmed forced sexual intercourse took place with visible injuries to her vagina.

"The appellant pleaded guilty to the charge before the trial judge. The trial judge took into account the seriousness of the offence and the presence of special aggravating factors, in particular the fact that the victim was very young and a weapon was used to threaten her and force was used. These factors were balanced against two mitigating factors namely, the appellant's guilty plea and his record of no prior conviction. The trial judge then imposed a sentence of 10 years.

"The appellant has now asked us to reduce the sentence on the basis of his first offender status, his guilty plea, his co-operation with the police, and the fact that the trial judge imposed lesser sentences in other previous similar cases. The State Prosecutor submits that the sentence in the circumstances was so inordinately low that the appellant's appeal should not only be dismissed but that the sentence should be increased to 15 years imprisonment.

"The offence of rape under Section 347 of the Criminal Code (Ch. 262) is a very serious offence for which the maximum punishment is life imprisonment. The Supreme Court in John Aubuku v The State [1987] PNGLR 267 stated that the offence of rape should be visited with a strong deterrent and punitive sentence in the form a custodial sentence. In a case where a woman or girl is abducted, taken captive and raped, the Supreme Court suggested a starting point of 8 years imprisonment. The Supreme Court also pointed out that the presence of special aggravating factors such as the use of excessive force and the very young age of the victim should attract sentences above the starting point of 8 years. Also in the past, the rape of victims of the ages of 17 years and above have attracted sentences between 10 years to 18 years: see John Aubuku v The State (supra), The State v Richard Aimuna Koupa [1987] PNGLR 208, and the State v Peter Kaudik [1987] PNGLR 201.

"In the present case we are of the view that given the fact that the victim was very young, excessive force was used and the victim sustained vaginal injuries warranted a sentence over 10 years, even in the presence of the mitigating factors put to us and before the trial judge by the appellant. Although we agree with the trial judge that this was a serious rape we think the trial judge's sentence does not reflect the seriousness of this particular offence and the abhorrence of society.

We are also of the view that because both the appellant and the State have asked us to re-visit the sentence we must invoke our power under the Supreme Court Act Section 23(4) to decide whether the sentence should be increased or decreased. We consider that Section 23(4) gives this Court wide powers to increase or decrease the sentence of the trial judge in appropriate cases either on this Court's own initiative or upon the application of the State at the hearing of an appeal by a convicted appellant. In the circumstances of this case, we are inclined to dismiss the appeal against the sentence, the sentence in our view being so inordinately low. We are inclined to increase the sentence. Given the limitations in time we have on circuit, we are unable now to give full reasons for increasing the sentence. We will do so at a later date. It is sufficient to-day to simply say that in the circumstances of the present case, a sentence in the range of 15 to 20 years is appropriate and should have been imposed by the trial judge. We impose a sentence of 15 years in lieu of the 10 years imposed by the trial judge. This should also serve as a warning to like-minded would-be offenders like the appellant that sentences for sexual abuse of small children, an offence which is becoming prevalent in this country, should and will be visited with a stern punishment. It should also serve as a warning to appellants who challenge lenient sentences for serious and prevalent crimes involving violence such as rape and armed robbery and murder that they risk losing the benefit of the lenient sentence and receiving a heavier sentence on appeal." (Edited version).

The Supreme Court Act provides for determining appeals...