Paul Mase and Kopa Lore John v The State [1991] PNGLR 88

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Amet J, Brown J
• Judgment Date: 01 March 1991
• Citation: [1991] PNGLR 88
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC404

Full Title: Paul Mase and Kopa Lore John v The State [1991] PNGLR 88

Supreme Court: Kidu CJ, Amet J, Brown J

Judgment Delivered: 1 March 1991

1 Criminal law—sentence—application of principles—totality principle

2 Criminal law—sentence—armed robbery—abductions—rape—appropriateness of sentence—relevant considerations—appropriate individual sentences—totality of criminal behaviour

CRIMINAL LAW—Sentence—Jointly charged offences—Cumulative sentences—Totality approach—Whether just and appropriate—Relevant considerations—Maximum penalties—Prevailing community perceptions of relative seriousness—General sentencing ranges—Totality of criminal behaviour.

CRIMINAL LAW—Appeal against sentence—Jointly charged offences—Armed robbery—Abductions—Rape—Whether individual sentences appropriate—Whether cumulative sentences appropriate—Totality of criminal behaviour—Total of 18 years reduced to 14 years.

On appeal against sentence of 10 years for rape, cumulative on eight years for armed robbery and four years for abduction, imposed on pleas of guilty,

Held:

(1) It is proper for a trial judge when sentencing to quote from the evidence of witnesses, either to emphasise the seriousness of the offence or to emphasise factors in favour of the accused person.

(2) The individual sentences imposed for rape and armed robbery were within the range of sentences currently imposed by the National Court and were, in the circumstances, proper sentences.

(3) (By Kidu CJ and Amet J) In applying the totality principle to jointly charged offences, the court:

(a) must consider the appropriate sentence for each offence charged and then consider whether they should be concurrent sentences or cumulative sentences;

(b) must, where sentences are made cumulative, consider whether the total sentence is just and appropriate;

(c) must, if the total sentence is not just and appropriate, vary one or more of the sentences to get a just total.

Public Prosecutor v Kerua [1985] PNGLR 85 and Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214, followed.

(4) (By Kidu CJ and Amet J) In determining whether the total sentence is just and appropriate the court:

(a) may take into account the maximum penalties provided by law for each offence and whether or not each offence falls into the worst, most serious or less serious of its kind;

(b) should ensure that the total sentence is not substantially above the normal sentence for the more serious (not the worst type) of the offence;

(c) may have regard to the prevailing community perception of the relative seriousness of the different serious offences.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48 at 49, approved.

(d) may have regard to the general sentencing ranges for other serious offences where totality of individual sentences for serious offences is obviously long;

(e) must assure relativity between all the offences, their seriousness and criminal culpability so that the sentences imposed reflect, in principle, the relative seriousness of the offences and their consequences.

Rex Lialu v The State [1990] PNGLR 487 at 495, per Kapi DCJ, disapproved.

(5) (Brown J dissenting) In the circumstances, the total sentence of eighteen years were not just and appropriate for the totality of the criminality involved and should be reduced to eight years for rape and six years for armed robbery making a totality of 14 years.

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, John Aubuku v The State [1987] PNGLR 267, Gimble v The State [1988-89] PNGLR 271, John Elipa Kalabus v The State [1988] PNGLR 193, Public Prosecutor v Kerua [1985] PNGLR 85, R v Holder and Johnston (1983) 13 A Crim R 375, R v Morley (1984) 13 A Crim R 431, R v Tait (1979) 46 FLR 386, Rex Lialu v The State [1990] PNGLR 487, The State v Polin Pochalon Lopai [1988-89] PNGLR 48 and Whittaker v R (1928) 41 CLR 230 referred to

___________________________

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MASE AND ANOTHER

V

THE STATE

Waigani

Kidu CJ Amet Brown JJ

30 July 1990

24 September 1990

1 March 1991

CRIMINAL LAW — Sentence — Jointly charged offences — Cumulative sentences — Totality approach — Whether just and appropriate — Relevant considerations — Maximum penalties — Prevailing community perceptions of relative seriousness — General sentencing ranges — Totality of criminal behaviour.

CRIMINAL LAW — Appeal against sentence — Jointly charged offences — Armed robbery — Abductions — Rape — Whether individual sentences appropriate — Whether cumulative sentences appropriate — Totality of criminal behaviour — Total of 18 years reduced to 14 years.

On appeal against sentence of 10 years for rape, cumulative on eight years for armed robbery and four years for abduction, imposed on pleas of guilty,

Held

(1) It is proper for a trial judge when sentencing to quote from the evidence of witnesses, either to emphasise the seriousness of the offence or to emphasise factors in favour of the accused person.

(2) The individual sentences imposed for rape and armed robbery were within the range of sentences currently imposed by the National Court and were, in the circumstances, proper sentences.

(3) (By Kidu CJ and Amet J) In applying the totality principle to jointly charged offences, the court:

(a) must consider the appropriate sentence for each offence charged and then consider whether they should be concurrent sentences or cumulative sentences;

(b) must, where sentences are made cumulative, consider whether the total sentence is just and appropriate;

(c) must, if the total sentence is not just and appropriate, vary one or more of the sentences to get a just total.

Public Prosecutor v Sidney Kerua [1985] PNGLR 85 and Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214, followed.

(4) (By Kidu CJ and Amet J) In determining whether the total sentence is just and appropriate the court:

(a) may take into account the maximum penalties provided by law for each offence and whether or not each offence falls into the worst, most serious or less serious of its kind;

(b) should ensure that the total sentence is not substantially above the normal sentence for the more serious (not the worst type) of the offence;

(c) may have regard to the prevailing community perception of the relative seriousness of the different serious offences.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48 at 49, approved.

(d) may have regard to the general sentencing ranges for other serious offences where totality of individual sentences for serious offences is obviously long;

(e) must assure relativity between all the offences, their seriousness and criminal culpability so that the sentences imposed reflect, in principle, the relative seriousness of the offences and their consequences.

Rex Lialu v The State [1990] PNGLR 487 at 495, per Kapi Dep CJ, disapproved.

(5) (Brown J dissenting) In the circumstances, the total sentence of eighteen years were not just and appropriate for the totality of the criminality involved and should be reduced to eight years for rape and six years for armed robbery making a totality of 14 years.

Cases Cited

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

Aubuku v The State [1987] PNGLR 267.

Gimble v The State [1989] PNGLR 271.

Kalabus v The State [1988] PNGLR 193.

Public Prosecutor v Sidney Kerua [1985] PNGLR 85.

R v Holder and Johnston (1983) 13 A Crim R 375.

R v Morley (1984) 13 A Crim R 431.

R v Tait (1979) 46 FLR 386.

Rex Lialu v The State [1990] PNGLR 487.

State, The v Polin Pochalon Lopai [1988-89] PNGLR 48.

Whittaker v The King (1928) 41 CLR 230.

Appeals

These were appeals against sentences imposed on pleas of guilty for offences of rape, armed robbery and abduction.

Counsel

F Pitpit, for the appellants.

R Auka, for the respondent.

Cur adv vult

1 March 1991

KIDU CJ AMET J: The appellants pleaded guilty in the National Court to rape, armed robbery and abduction. The sentences imposed on them were ten years for rape, eight years for armed robbery and four years for abduction. His Honour, the learned trial judge, ordered that the sentence for armed robbery be served consecutively with the sentence for rape. So the sentence each appellant was ordered to serve was eighteen years less time spent by each in custody while awaiting trial.

Both appellants appealed against the total sentence they each received.

Mr Fraser Pitpit for both appellants very ably argued that not only were the individual sentences for rape and armed robbery excessive, but the total cumulative sentences for each appellant of eighteen years were...