Andrew Dama v The State

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Manuhu J,Geita J,Christensen J
• Judgment Date: 27 July 2026
• Neutral Citation: SC2869
• Docket Number: SCREV NO 64 OF 2024
• Date: 27 July 2026
• Counsel: J Bibilo with E Misikali for the applicant,P Matana for the respondent,Counsel

SC2869

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCREV NO 64 OF 2024

Andrew Dama

Applicant

v.

The State

Respondent

LAE: Manuhu J, Geita J, Christensen J

26, 27 July 2026

REVIEW — CRIMINAL LAW — Review of conviction — s 229D Criminal Code — persistent sexual abuse of a child — sexual abuse of biological daughter over a period of years — 40 years imprisonment imposed — material irregularity in arraignment and sentence proceeding — miscarriage of justice — remedied by order for new trial

CRIMINAL LAW — PRACTICE AND PROCEDURE — Sentencing — intention of persistent sexual abuse provision — single charge — particulars of charge — elements of charge — procedure on arraignment — procedure at sentence hearing — applicable maximum penalty

The applicant pleaded guilty to sexual offending against his biological daughter and was sentenced to a period of 40 years imprisonment. The applicant was indicted with only one count of persistent sexual abuse of a child contrary to s 229D of the Criminal Code. However, he was sentenced for persistent sexual abuse of a child, and also an offence of sexual penetration of a child contrary to s 229A of the Criminal Code. This occurred due to material irregularities in the sentence proceeding.

Held

1. A material irregularity and miscarriage of justice occurs where an accused is convicted and sentenced for more than one offence when the indictment charged only a single offence.

2. A charge of persistent sexual abuse of a child pursuant to s 229D of the Criminal Code is an unusual and unique offence provision as it legislatively permits multiple acts of alleged distinct criminal offending to constitute a single offence and charge.

3. Section 229D of the Criminal Code has a purpose of ensuring offenders can still be brought to account when repetitive sexual abuse of a child occurs and the complainant is unable to recall with precise particularity the occasions of alleged sexual abuse.

4. An indictment with a sole charge of persistent sexual abuse of a child pursuant to s 229D of the Criminal Code involves a sentencing exercise for one offence constituted by multiple acts of offending conduct.

5. An indictment charging only an offence contrary to s 229D of the Criminal Code is to be regarded as involving a single charge (or count), with the particulars of the allegations in the charge (or count) being contrary to Division 2A of the Criminal Code.

6. The elements that the State has the burden of proving in such an indictment are the elements as prescribed by s 229D and, as a consequence, additionally any elements of the allegations in the charge contrary to Division 2A of the Criminal Code.

7. The applicable maximum penalty in an indictment with a single charge (or count) contrary to s 229D of the Criminal Code is the maximum penalty as provided solely by s 229D of the Criminal Code.

8. In a sentence proceeding for an offence contrary to s 229D of the Criminal Code the accused should be asked as to whether they are guilty or not guilty only after the entire substance and particulars of the allegation as set out in the charge (or count) are carefully explained and put to the accused.

9. The matter then proceeds to either trial on the single charge (with the particulars as alleged with reference to the Division 2A offence provision/s) or to a sentence hearing on the single charge (with the particulars, and applicable maximum penalty, as alleged).

10. The National Court decision in State v Makai [2009] PGNC 239, N3841 is an informative and authoritative decision on s 229D of the Criminal Code.

11. The miscarriage of justice that occurred here can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make.

Cases cited

Beng v The State [1977] PNGLR 115

Bukoya v The State [2007] PGSC 15, SC887

Jelis v The State [2012] PGSC 26, SC1184

Kemp (No 2) [1996] QCA 514

KRM v R (2001) 206 CLR 221; [2001] HCA 11

Ombusu v The State [1997] PNGLR 699

Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79, SC1999

State v Makai [2009] PGNC 239, N3841

Tugein v Gotaha [1984] PNGLR 137

Counsel

J Bibilo with E Misikali for the applicant

P Matana for the respondent

Lawyer for the applicant: Public Solicitor

Lawyer for the respondent: Acting Public Prosecutor

1. BY THE COURT: By way of application for leave to review filed 24 October 2024, and a grant of leave on 7 March 2025, the applicant seeks a review of conviction and sentence. The review is sought following the entry of a plea of guilty at a sentence hearing that occurred on 14 and 29 November 2022.

2. On 1 December 2022, the applicant was purportedly sentenced to 40 years imprisonment for offending involving the sexual abuse of a child. The child is his biological daughter and the State alleged that the applicant engaged in sexual activity with her from when she was 8 years of age, through until an act of sexual penetration occurred when she was 13 years of age.

3. We have deliberately described the sentence as one ‘purportedly’ imposed because the review against conviction raises irregularities in the conviction and sentence proceeding such that it is not possible to discern on what charge the applicant was lawfully convicted and sentenced.

4. The State does not disagree with this finding. The State concedes that there was a material irregularity in the course of the trial (s 23 (1)(c) of the Supreme Court Act) and accepts that a miscarriage of justice has accordingly occurred.

5. We agree that there was a material irregularity and a miscarriage of justice. The reasons for this will be explained, as well as consideration given to the consequential orders that are therefore required. The issues that arose in this matter are such that it is also appropriate that we set out the irregularities and give consideration as to the proper procedures to be applied in sentencing for an offence of persistent sexual abuse contrary to s 229D of the Criminal Code.

The review

6. The grounds of the review are:

(a) The trial judge erred in fact and in law by placing little to no weight on the mitigating factors available in the applicant's case.

(b) The trial judge erred by taking into account irrelevant matters wherein the applicant did not plead guilty to, thereby resulting in the imposition of a higher sentence.

(c) The sentence of 40 years imprisonment is manifestly excessive, and the trial judge should have applied the totality principle.

7. It is sought that the review be allowed, the sentence set aside, and it be substituted with a lower sentence.

8. As already observed, it is necessary only to consider the law that applies to a review of conviction. This law is well settled. The review is governed by s 23 of the Supreme Court Act, being that the Supreme Court shall allow an appeal against conviction if it thinks that:

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial.

9. In the event one of the grounds is established, the Court is then to consider whether a miscarriage of justice has actually occurred. If not, the appeal may be dismissed: Beng v The State [1977] PNGLR 115.

10. We note that the contended grounds of review in this matter do not specifically address any allegations with respect to the entry of the conviction. However, in circumstances where the State concedes the review and there has plainly been a material irregularity, we will proceed on the basis that the review is concerned with this Court's view in an application of s 23(1)(c) of the Supreme Court Act.

The National Court proceeding

11. The applicant was indicted with one charge contrary to s 229D of the Criminal Code which provides:

229D Persistent Sexual Abuse of a Child

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section —

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed¹ of an offence against this section —

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

12. The indictment as presented in this matter can be summarised as reflecting the following single charge:

Between 1 June 2016 and 28 August 2021, at Lae, the applicant engaged in persistent sexual...