Jack Mari v The State (2007) SC1147

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Davani & Cannings JJ
• Judgment Date: 02 March 2007
• Citation: (2007) SC1147
• Docket Number: SCR NO 19 0F 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC1147

Full Title: SCR NO 19 0F 2006; Jack Mari v The State (2007) SC1147

Supreme Court: Sakora, Davani & Cannings JJ

Judgment Delivered: 2 March 2007

SC1147

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 19 0F 2006

BETWEEN

JACK MARI

Applicant

AND

THE STATE

Respondent

Lae: Sakora, Davani & Cannings JJ

2007: 26 February, 2 March

CRIMINAL LAW – review of sentence after plea of guilty – duty of trial judge to sentence 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 – Criminal Code, Section 229A

The applicant sought review of a sentence of 20 years imprisonment imposed by the National Court after he pleaded guilty to an offence under Section 229A of the Criminal Code, engaging in an act of sexual penetration with a child under the age of 16 years. The child was a 14-year old girl, his stepdaughter. He appealed outside the 40-day time limit imposed by the Supreme Court Act but satisfied the Court that there were good reasons for dealing with his case as a review of the National Court’s decision. The main issues on the review were whether the trial judge had erred by (a) misdirecting himself as to the maximum penalty; and (b) finding as a fact, and regarding as an aggravating factor, that the incident over which the applicant was convicted was the last in a series of incidents over a number of years in which the applicant had sexually abused the victim, when that allegation was not put to him when he pleaded guilty and he denied it during his police interview.

Held:

(1) The maximum penalty for an offence under Section 229A of the Criminal Code depends on whether circumstances of aggravation are charged in the indictment and whether they are proven.

(2) The prescribed circumstances of aggravation are where the child is under the age of 12 years and/or where there was an existing relationship of trust, authority or dependency between the accused and the child; in which case the maximum penalty is increased from 25 years to life imprisonment.

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

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

(5) 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.

(6) In the present case the trial judge erred by regarding the maximum penalty as life imprisonment as, notwithstanding the presence of a circumstance of aggravation (the relationship of trust between the accused (stepfather) and the victim (step-daughter)) that circumstance was not charged in the indictment. The maximum penalty was therefore 25 years imprisonment.

(7) The trial judge also erred by sentencing the offender on the basis of aggravating facts to which the offender did not plead guilty and had no opportunity to rebut.

(8) There were identifiable errors in the sentence, which were serious and vitiated the exercise of the trial judge’s discretion as to sentence. The Supreme Court was obliged to quash the sentence and pass a substitute sentence.

(9) Notwithstanding the errors, the overriding consideration was that, for reasons explained by the trial judge, the applicant had committed a very serious offence and a strong sentence was required. The sentence of 20 years was set aside and substituted with a sentence of 15 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855

Mark Bob v The State (2005) SC808

Saperus Yalibakut v The State (2006) SC890

The State v Binga Thomas (2005) N2828

The State v Dibol Petrus Kopal (2004) N2778

The State v James Yali (2006) N2989

The State v Jeffery Wangi (2006) N3016

The State v John Andrew CR No 98 of 2000, unreported

The State v Michael Butemo Jiregari [1984] PNGLR 62

William Norris v The State [1979] PNGLR 605

REVIEW

This is a determination of an application for review of a sentence for the offence of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

J Mari, the applicant, in person

M Zurenuoc, for the respondent

2 March, 2007

1. BY THE COURT: This is a review of a sentence of 20 years imprisonment imposed by the National Court on the applicant, Jack Mari, after he pleaded guilty to a charge of engaging in an act of sexual penetration with a child under the age of 16 years.

2. On Wednesday 9 July 2003 the applicant was involved in an incident at Polomo, Manus Province, in which he allegedly sexually penetrated a 14-year-old girl, his stepdaughter. The police investigated the incident. The applicant was charged and committed for trial on 27 October 2003. He was indicted before the National Court at Lorengau on 7 April 2006. He pleaded guilty. The presiding Judge, Sevua J, accepted the plea, convicted the applicant and on 13 April 2006 sentenced him. On 10 August 2006 the applicant gave a notice of appeal against sentence. This was more than two months outside the 40-day period permitted by Section 29(1) of the Supreme Court Act.

3. We inquired into the cause of the delay in lodging an appeal. We were told that there were problems in getting appeal documents to and from Manus Province during 2006 due to the poor condition of the Lorengau Jail and confusion caused by the transfer of many prisoners to Buimo Jail at Lae. Counsel for the State, Ms Zurenuoc, conceded that those were justifiable reasons for the delay. She did not object to this court reviewing the sentence under Section 155(2)(b) of the Constitution, which states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

4. It is important to note that the exercise of jurisdiction by the Supreme Court under this provision is not automatic. A person who has lost a right of appeal has to first convince the Supreme Court that it should engage in a review. After considering the explanation given for the delay, Ms Zurenuoc’s concessions, the length of the sentence and perusing the appeal book, which shows that there are some significant and arguable points to be determined, we have concluded that the three criteria for granting leave are satisfied. That is:

1 it is in the interests of justice to grant leave; and

2 there are cogent and convincing reasons and exceptional circumstances; and

3 there are clear legal grounds meriting a review of the National Court’s decision.

(See Mark Bob v The State (2005) SC808; Application by Herman Joseph Leahy SCR No 34 of 2005, 15.12.06 unreported.)

5. Therefore we grant leave for the sentence imposed by the National Court to be reviewed by way of an application for review. The offender, who has lost his right of appeal, is referred to as ‘the applicant’, rather than ‘the appellant’.

THE NATIONAL COURT PROCEEDINGS

Indictment

6. The indictment stated:

Jack Mari of Kakandetta, Oro Province, stands charged that he on the 9th day of July 2003 at Polomo … sexually penetrated [the complainant], a girl under the age of 16 years.

7. It was presented under Section 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

8. The trial judge put the allegations to the applicant in these terms:

On the evening of 9 July 2003 you and your family were at Polomo village and having dinner in the evening. After dinner you told the victim to go into your room to sleep. You then followed her into the room, and the State says then you had sexual intercourse with her in the room. The State says that at that time the victim was 14 years of age and the victim was your stepdaughter, the child of your wife. You understand the charge?

9. The applicant replied yes and that the charge was true. The trial judge entered a plea of guilty subject to reading the District Court depositions. The defence counsel, Mr Philip Kaluwin, said the plea was consistent with instructions and he had no application to make. The prosecutor, Mr Pondros Kaluwin, tendered the depositions. His Honour read the depositions and said that he accepted the guilty plea. The...