Ian Napoleon Setep v The State (2001) SC666

• Jurisdiction: Papua New Guinea
• Citation: (2001) SC666
• Date: 18 May 2001
• Court: Supreme Court
• Year: 2001

Full Title: Ian Napoleon Setep v The State (2001) SC666

Supreme Court: Sawong J, Gavara–Nanu J, Kandakasi J

Judgment Delivered: 18 May 2001

1 CRIMINAL LAW—Appeal against severity of sentence—Abduction and aggravated rape—Conviction and sentence after trial—Prior conviction and sentence of 30 years for wilful murder—Offence committed whilst on escape from prison—Appeal allowed—Sentence of life imprisonment reduced to 20 years—Criminal Code (Ch262), s347.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Co–accused—Discrimination of on the basis of different character and antecedent—Too long a sentence or considerable disparity and feeling of injustice has occurred basis to adjust and reduce sentence—Sentence of life imprisonment reduced to 25 years.

3 CRIMINAL LAW—PRACTICE AND PROCEDURE—Principles for making sentence concurrent or cumulative considered—Inappropriate to make sentence concurrent with totally unrelated prior sentence—Learned trail judge erred in making sentence to be served concurrent—Decision quashed and sentence ordered to be served cumulatively.

4 APPEAL—Appeal against sentence—Sentence by trial judge not to be disturbed unless manifestly excessive—Court has power to make such orders as it considers appropriate in the circumstances to do justice—Supreme Court Act (Ch37) s23(4).

5 Wanosa v R [1971–72] PNGLR 90, William Norris v The State [1979] PNGLR 605, Avia Aihi v The State (No 3) [1982] PNGLR 92, Goli Golu v The State [1979] PNGLR 653, John Aubuku v The State [1987] PNGLR 267, The State v Peter Kaudik [1987] PNGLR 201, James Mora Meaoa v The State [1996] PNGLR 280, The State v Kenneth Penias [1994] PNGLR 48, SCR No 4 of 1992; John Fatty Marase v The State [1994] PNGLR 415, Thomas Waim v The State (1997) SC519, Winugini Urugitaru v R [1974] PNGLR 283, Andrew Uramani v The State [1996] PNGLR 287, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Public Prosecutor v Kerua [1985] PNGLR 85, The State v John Pesa [1994] PNGLR 317 and The State v James Gurave Guba (2000) N2020 referred to

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By the Court: This is an appeal against a sentence of life imprisonment for rape contrary to s347 of the Criminal Code (Ch262). The appeal is on the basis that, the sentence is excessive and in the alternative, the sentence is cumulative with a 1994 sentence of 30 years for wilful murder. The offence was committed together with other unlawful acts including abduction, robbery, intruding into a dwelling house in the middle of the night, having in possession and using a homemade shotgun to commit the offence. At the time of committing the offence, the appellant was a prison escapee whilst serving the 30 years imprisonment term. He was charged with a co–accused, an Oriomu Nabai Rex with two counts each of abduction and one count each of robbery and rape. They were both convicted on the two counts of abduction and rape but acquitted on the charge of robbery. They were both sentenced to 5 years each for the two counts of abduction but different sentences were imposed for rape. The appellant got life imprisonment while his co–accused, was given 15 years. That was on the basis of their different characters and antecedents. These present a number of issues but the main one is whether the imposition of the maximum prescribed sentence of life imprisonment was appropriate in the circumstances of this case.

The Facts

The relevant facts are these. On 11 September 1998 at about 2.00am, the victim went to her cousin, a Don Pewamu's house in Kila Kila to spend the night there. The appellant who was at that time on the run after escaping from prison where he was serving his 30 years, went with his co–prisoner, one Oriomu Nabai Rex and several other men to the house where the victim was sleeping with her cousins and other relatives. They knocked on the door and demanded it to be opened. They were armed with a softball bat and a homemade shotgun. When the door was not opened, they threatened to burn the house down with the occupants. Fearing for their lives the occupants opened the door.

After the occupants opened the door, the appellant and his accomplices entered the house. They stole money at gunpoint, abducted the victim and another girl and took them away with the expressed intention of having unlawful carnal knowledge of them. The other girl fortunately managed to escape from the appellant and his accomplices and ran into a neighbour's house. The victim was unfortunate. She also tried to escape and called for help. Because of that, she was hit on the head with the softball bat. That rendered her unconscious temporarily. She was then dragged away and repeatedly raped at various locations between Kilakila and Taikone. She was finally taken to a house at Taikone where she was introduced as the appellant's second wife and was again raped there. The appellant was one of the main offenders as he did most of the raping and taking the victim to the house at Taikone. After his repeated acts of rape upon the victim, the appellant went into a deep sleep. That gave the victim the opportunity to escape and eventually catch up with her relatives and the police who were looking for her.

The victim was then taken to the emergency ward at the Port Moresby General Hospital. There she was medically examined, treated and subsequently discharged. Medical evidence confirmed that she was a virgin who sustained injuries to her head, suffered bruises and lacerations to here right chin, forehead and the back of her head which was stitched. She also had a bruise to her right elbow and fractured right ring finger. Further she suffered various injuries to her genital. At the time of the examination the victim looked sick, anxious and distressed.

The appellant and his accomplices were not strangers to the victim and her cousins. They all lived in the same area, and knew each other well enough, though not in any intimate way.

The Appeal

The appellant's notice of appeal sets out the grounds of his appeal as follows:

1. Sentence, the sentence imposed on me was harsh and excessive (life years).

2. That I want this life year currently I received to be concurrent, under this 30 years previously received.

3. Other others if the Court deems fit

The appellant contends under his first ground of appeal that, the term of life imprisonment imposed upon him by the learned trial judge was manifestly excessive because the offence did not fall into the worse category of abduction and rape cases. He also argues that the sentence was manifestly excessive when compared to the sentence of his co–accused who received a 15 years imprisonment term for the same offence. In other words, he argues that the sentence was excessive because the offence did not fall into the worse case of rape and in any case, the sentence he received was not at parity with his co–accused's. On these basis he argues that the learned trial judge erred in the exercise of his sentencing discretion.

In respect of the second ground, he argues that, he was already serving a 30 years sentence for wilful murder. Consequently, the trial judge erred in not ordering him to serve his life imprisonment term concurrently with that sentence.

For the State, Mr Umpake submits that the learned trial judge did not err when he imposed the maximum prescribed sentence of life imprisonment because the appellant's case fell into the "worse type" of abduction and rape cases, which justified the sentence that was imposed. In relation to the disparity argument, he submits that, the appellant was serving a 30 years sentence for a serious and violent offence of wilful murder when he escaped and whilst on run, the committed this offences. Accordingly, Counsel for the State submits that, the learned trial judge was correct in treating the appellant differently from...