Saperus Yalibakut v The State (2006) SC890

• Jurisdiction: Papua New Guinea
• Judge: Jalina J Mogish J Cannings J
• Judgment Date: 27 April 2006
• Citation: (2006) SC890
• Docket Number: SCRA NO 52 0F 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC890

Full Title: SCRA NO 52 0F 2005; Saperus Yalibakut v The State (2006) SC890

Supreme Court: Jalina J, Mogish J, Cannings J

Judgment Delivered: 27 April 2006

SC890

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 52 0F 2005

BETWEEN

SAPERUS YALIBAKUT

Appellant

AND

THE STATE

Respondent

Wewak: Jalina J, Mogish J, Cannings J

2006: 25, 27 April

APPEAL

CRIMINAL LAW– appeal against conviction after plea of guilty – whether plea properly accepted – whether trial judge erred by entering conviction – duty of trial judge to ensure that plea of guilty is properly made.

CRIMINAL LAW – sentencing after plea of guilty – duty of trial judge to sentence the offender on the basis of the facts to which he or she has pleaded guilty – duty to act on the version of facts which, within the bounds of possibility, is favourable to the offender.

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years – absence of consent not an element of offence – whether consent is a relevant matter to take into account when sentencing – whether trial judge’s failure to take consent into account was an error of law vitiating the sentence.

The appellant pleaded guilty to an offence under s 229A of the Criminal Code Act, engaging in an act of sexual penetration with a child under the age of 16 years. The child was an 11-year old girl. The appellant was convicted and sentenced to 17 years imprisonment. He appealed against conviction on the ground that the trial judge erred in accepting the guilty plea. He said he was confused by the trial judge’s use of the word “penetration” and he did not fully penetrate the girl’s vagina. He appealed against the sentence on the ground that it was excessive, as the girl had consented to intercourse and he did not fully penetrate her.

Held:

(1) When dealing with a plea of guilty, the duty of the judge is to examine the depositions to check that there is evidence of the elements of the offence.

(2) If at any stage of the trial process, from arraignment to formal entry of the sentence, the accused says or does anything to taint a guilty plea or makes it appear equivocal or if the judge observes something in the depositions that call the guilty plea into question, the guilty plea should be vacated.

(3) In the present case the judge made no error in the manner in which he accepted the guilty plea and convicted the appellant.

(4) When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty.

(5) As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.

(6) If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

(7) In the present case the judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty.

(8) Those facts related to the issue of lack of consent, which though not an element of the offence, is a matter relevant to sentence.

(9) The trial judge erred by not giving the benefit of the doubt to the offender on the issue of consent, in a way that vitiated the sentence.

(10) The sentence of 17 years was accordingly set aside and substituted with a sentence of 14 years imprisonment.

Cases cited

Anton Yani v The State (1999) SC615

Gabriel Laku v The State [1981] PNGLR 350

Launce Vetari v The State (1979) SC156

Public Prosecutor v Tom Ake [1978] PNGLR 469

The State v Aaron Lahu (2005) N2798

The State v Mark Kanupio and Others (2005) N2800

The State v Peter Lare (2004) N2557

The State v Saperus Yalibakut (2005) N2957

APPEAL

This was an appeal against conviction and sentence for engaging in an act of sexual penetration with a child under the age of sixteen (16) years.

Counsel

S Yalibakut, the Appellant in person

M Zurenuoc, for the Respondent

1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Kandakasi J) of the appellant, Saperus Yalibakut, on a charge of engaging in an act of sexual penetration with a child under the age of sixteen (16) years. The judgment appealed against has been published as The State v Saperus Yalibakut (2005) N2957.

BACKGROUND

2. On Saturday 16 April 2005 the appellant was involved in an incident at Kuminimbus village in the Maprik District of East Sepik Province in which he allegedly sexually penetrated an 11 year old girl. The police investigated the incident. The appellant was charged and committed for trial on 23 June 2005.

3. He was indicted before the National Court at Wewak on 20 September 2005. He pleaded guilty. Kandakasi J accepted the plea, convicted the appellant and on 26 September 2005 sentenced him to 17 years imprisonment.

4. On 28 October 2005 he gave notice of his appeal against both conviction and sentence. This was within the forty-day period permitted by s 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

THE NATIONAL COURT PROCEEDINGS

Indictment

5. The following indictment was presented against the appellant:

Saperus Yalibakut of Kuminimbus village, Maprik, East Sepik Province, stands charged that he on the 16th day of April 2005 at Kuminimbus … engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

6. The indictment was presented under s 229A (Sexual Penetration of a Child) of the Criminal Code, which states:

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Arraignment

7. The appellant was arraigned (i.e. asked to indicate his plea to the indictment) twice. This was done as he appeared to be confused. The sequence of events and what was said to the appellant and what he said in response is important.

8. On the first arraignment, the trial judge told the appellant to listen carefully and said:

The State alleges that on 16 April this year at about 11.00 am at Kuminimbus village, Maprik, East Sepik Province, you sent the victim, [named], to your house. She went there thinking nothing would happen to her but when she got to your house she refused to enter the house and you forced her to go in. Once inside the victim tried to get out of the house again but you forced her into your bedroom and there you proceeded to have sexual intercourse with the victim. At the time the victim was 11 years old and doing grade 3 at Balupuine Community School. When you did that you engaged yourself in an act of sexual penetration when the victim was under the age of 11 years old. [sic] Do you understand that story?

9. The appellant replied yes. The trial judge then read out the charge and asked the appellant if it was true or not true. The appellant replied:

Your Honour, it is true that we had sexual penetration but it is not that I raped her.

10. The trial judge asked defence counsel, Mr Mesa, if the appellant was raising a defence. Mr Mesa replied “no, the charge was explained to the appellant and he understands it”. The prosecutor, Mr Kupmain, pointed out that the appellant had been charged under s 229A. He was not charged with rape.

11. The trial judge said that he had not put anything to the appellant in the nature of rape except the part of the story that alleged he had forced the complainant into the house. The prosecutor suggested that that part may need to be amended. The trial judge then decided to re-arraign the appellant and delete the allegation that the appellant had forced the complainant into his bedroom.

12. On the re-arraignment the trial judge said:

On Saturday 16 April 2005 at about 11.00 am at Kuminimbus village, Maprik, East Sepik Province, you sent [the complainant] to your house. She went there thinking nothing would happen to her. Once she was there you took her into your bedroom and had sexual intercourse with her. At the time the victim was 11 years old doing grade 3 at Balupuine Community School. When you did that you engaged in sexual penetration of a child under the age of 16. Do you understand that story?

13. The accused replied yes. The trial judge read out the charge again and asked the appellant if the charge was true or not true. The appellant replied:

Your Honour, it is true.

14. His Honour entered a provisional plea of guilty and asked Mr Mesa if that was consistent with his instructions. Mr Mesa replied yes and that he had no application to make.

Conviction

15. Mr Kupmain tendered the committal court depositions. No objection was taken to their admission. The trial judge considered the depositions, including the appellant’s record of interview by the police. His Honour announced that there was overwhelming evidence to support the charge, accepted the guilty plea and entered a conviction.

Allocutus

16. The trial judge told the appellant he had the...