Eddie Peter v The State (2006) SC1316

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Kirriwom J, Cannings J
• Judgment Date: 03 November 2006
• Citation: (2006) SC1316
• Docket Number: SCRA NO 75 0F 2001
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC1316

Full Title: SCRA NO 75 0F 2001; Eddie Peter v The State (2006) SC1316

Supreme Court: Injia DCJ, Kirriwom J, Cannings J

Judgment Delivered: 3 November 2006

SC1316

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 75 0F 2001

EDDIE PETER

Appellant

V

THE STATE

Respondent

Waigani: Injia DCJ, Kirriwom J, Cannings J

2006: 31 October, 3 November

CRIMINAL LAW – appeal against sentence – rape – whether sentence manifestly excessive – increase in sentencing tariffs since date of trial – whether question of excessiveness of sentence determined by tariffs applying at date of trial or date of appeal

The appellant was sentenced to 17 years imprisonment for rape. He appealed against severity of the sentence. The appeal was heard five years after sentence was imposed. It was acknowledged that sentences for rape had generally increased substantially over that period. The question arose, amongst others, whether, in determining if a sentence was excessive, the Supreme Court should apply the sentencing tariffs applying at the date of trial or those current at the time the appeal was heard.

Held:

(1) If it is argued that a sentence is obviously excessive the standards against which the sentence is to be assessed are those applicable at the time the sentence was imposed.

(2) In the present case, the sentence of 17 years was obviously excessive having regard to the sentencing guidelines and practices of the Supreme Court in a number of cases in the years leading up to 2001, when the sentence was imposed.

(3) In addition there were two identifiable errors in the exercise of discretion by the trial judge: taking account of an unproven allegation that the offender tried to have sex with the victim on a previous occasion and focussing only on aggravating factors to the exclusion of mitigating factors.

(4) The sentence of 17 years was quashed and substituted with a sentence of 12 years imprisonment.

Cases cited

The following cases are cited in the judgment:

James Mora Meaoa v The State [1996] PNGLR 280

John Aubuku v The State [1987] PNGLR 267

Lawrence Hindemba v The State (1998) SC593

Norris v The State [1979] PNGLR 605

The State v Eddie Peter (No 1) (2001) N2296

The State v Eddie Peter (No 2) (2001) N2297.

Thomas Waim v The State (1997) SC519

APPEAL

This was an appeal against sentence for rape.

Counsel

E Peter, the applicant, in person

R Auka, for the respondent

1. BY THE COURT: This is an appeal against a sentence of 17 years for rape. The appellant, Eddie Peter, was convicted by the National Court (Kandakasi J) after pleading not guilty. The trial was held in Alotau, Milne Bay Province, in October 2001. The appellant appealed within a month after the trial. We will comment later in the judgment on the delay in having the appeal heard. The appellant appealed against both conviction and sentence but withdrew the appeal against conviction at the hearing of the appeal. The National Court judgments on verdict and sentence have been published as The State v Eddie Peter (No 1) (2001) N2296 and the State v Eddie Peter (No 2) (2001) N2297.

CONVICTION FOR RAPE

2. The appellant, aged 34 at the time, committed the offence at Naura, near Alotau, on 26 August 1998. The victim was a girl aged 14. She was on her way to school, around 7.00 am, when she saw a masked man, the appellant. She tried to run away but he caught up with her when she fell face down, crying. The appellant placed a grass-knife on her neck, lifted her by her hands, took her to the side of a river, forced her to lie down on a log, forcefully removed her clothes then sexually penetrated her without consent. She felt pain and cried and he again threatened her with the grass-knife and ordered her not to cry. After raping her he told her to go to Naura Hospital for medical treatment. She went there and was later taken to Alotau Hospital. She had sustained injuries to her knees and was in a general state of shock. The main issue at the trial was identification. The trial judge accepted the victim’s evidence. Though the offender had his face masked, she could recognise him by his voice and features. The offender was related to her by marriage and she called him ‘uncle’.

NATIONAL COURT JUDGMENT ON SENTENCE

3. The trial judge observed that the maximum sentence for rape is life imprisonment. His Honour agreed with what the Supreme Court said in John Aubuku v The State [1987] PNGLR 267 about the seriousness of the crime of rape and the need to impose custodial sentences on offenders unless wholly exceptional circumstances exist. His Honour observed that if the offender is a person known to the victim the betrayal of trust constituted by a rape is a serious aggravating factor. That was emphasised by the Supreme Court in James Mora Meaoa v The State [1996] PNGLR 280.

4. His Honour expressed disagreement with the Supreme Court’s decision in Thomas Waim v The State (1997) SC519, which found a sentence of 25 years imposed by the National Court excessive on the ground that it represented a quantum leap in the appropriate sentence and reduced the sentence to 18 years. His Honour felt that the quantum leap principle should not constrain a sentencing judge who was in the best position to arrive at the appropriate sentence in view of his or her intimate knowledge of the facts of the case and the circumstances of the offender. His Honour cited with approval the dicta of the Supreme Court in Lawrence Hindemba v The State (1998) SC593, which indicated that a guilty plea for rape with aggravating circumstances such as the young age of the victim, abduction and use of force or threatened force can attract sentences in the range of 14 to 18 years imprisonment.

5. His Honour expressed concern that despite judicial pronouncements about the seriousness of the crime of rape and the need for sentences to act as a deterrent, the crime was becoming more prevalent. In the present case his Honour regarded the following as aggravating circumstances:

· the victim was a young schoolgirl;

· she was on her way to school;

· the appellant had earlier tried to force her to have sex, without success;

· there was a betrayal of trust as the victim knew the appellant and called him her uncle;

· he pleaded not guilty, forcing a trial and thereby forcing the victim to relive the ordeal;

· he used a grass-knife to threaten the victim;

· she suffered injuries to her knees.

6. His Honour did not identify any mitigating circumstances. His Honour considered the personal circumstances of the appellant. He was aged 34 at the time of the offence, married with two children. He was educated to grade 6. He spent three years, one month and 15 days in custody before the date of sentence. He had no prior convictions. His Honour concluded that 17 years imprisonment was the appropriate sentence less the pre-sentence period in custody.

PRINCIPLES TO APPLY WHEN HEARING APPEALS AGAINST SENTENCE

7. Section 23(4) of the Supreme Court Act states:

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

8. The approach to be taken by the Supreme Court when it hears an appeal against sentence was set out in Norris v The State [1979] PNGLR 605. There are two questions to be addressed:

9. Question 1 – Has the trial judge made an identifiable error which has the effect of vitiating (making invalid) the sentence? That is, has the trial judge made a mistake on the facts? Applied a wrong law or taken account of an irrelevant consideration? Failed to take account of a relevant consideration? Clearly given too much weight or too little weight to a relevant factor?

10. If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. The new sentence can be more or less severe than the original sentence, as in Lawrence Hindemba v The State (1998) SC593, where the Supreme Court increased a rape sentence on appeal from 10 years to 15 years. If no, the Supreme Court should proceed to question 2.

11. Question 2 – Is the sentence obviously (not merely arguably) excessive (or lenient)? That is, even though no particular error by the trial judge can be identified, is the sentence out of reasonable proportion to the circumstances of the crime?

12. If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. Again, the new sentence can be more or less severe than the original sentence. If no, the trial judge will have imposed a correct sentence. The appeal against sentence will be dismissed. We now apply those principles to the present case.

DID THE TRIAL JUDGE MAKE AN IDENTIFIABLE ERROR?

13. We agree with the sentiments expressed by the trial judge about the seriousness of the offence of rape and the need for strong, deterrent sentences. We also agree that most of the...