Joe Nawa v The State (2007) SC1148

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Davani & Cannings JJ
• Judgment Date: 02 March 2007
• Citation: (2007) SC1148
• Docket Number: SCR NO 16 0F 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC1148

Full Title: SCR NO 16 0F 2006; Joe Nawa v The State (2007) SC1148

Supreme Court: Sakora, Davani & Cannings JJ

Judgment Delivered: 2 March 2007

SC1148

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 16 0F 2006

BETWEEN

JOE NAWA

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 the offender on 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 12 years – Criminal Code, Sections 229A(1) and (2).

The applicant sought review of a sentence of 20 years imprisonment imposed by the National Court after he pleaded guilty to an offence under Sections 229A(1) and (2) of the Criminal Code (engaging in an act of sexual penetration with a child under the age of 12 years). The child was an 8-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 issue on review was whether the trial judge had erred by finding as a fact, and regarding as an aggravating factor, that the incident over which the applicant was convicted was the third time he had sexually penetrated the victim, when that allegation was not put to him when he pleaded guilty and he made no admissions to that effect in his police interview.

Held:

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

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

(3) 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.

(4) In the present case the trial judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty and he had no opportunity to rebut.

(5) There was an identifiable error in the sentence. It was a serious error, which 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.

(6) Notwithstanding the error, the overriding consideration was that, for reasons explained by the trial judge, the applicant had committed an extremely serious offence and a strong sentence was required. The sentence of 20 years was set aside and substituted with a sentence of 17 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 John Andrew CR No 98 of 2000, unreported

The State v John Ritsi Kutetoa (2005) N2814

The State v Kemai Lumou (2004) N2684

The State v Saul Zowa CR No 294 of 2001, 22.10.03, unreported

William Norris v The State [1979] PNGLR 605

REVIEW

This is the 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 12 years.

Counsel

J Nawa, 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, Joe Nawa, after he pleaded guilty to a charge of engaging in an act of sexual penetration with a child under the age of 12 years.

2. On Sunday 14 August 2005 the applicant was involved in an incident at Ponam, Manus Province, in which he allegedly sexually penetrated an 8-year-old girl, his stepdaughter. The police investigated the incident. The applicant was charged and committed for trial on 29 December 2005. He was indicted before the National Court at Lorengau on 6 April 2006. He pleaded guilty. The presiding Judge, Sevua J, accepted the plea, convicted the applicant and on 10 April 2006 sentenced him.

3. 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. 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. 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 (2006) SC855.)

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:

Joe Nawa of Ponam, Manus Province, stands charged that he on the 14th day of August 2005 at Ponam … sexually penetrated [the complainant], a girl under the age of 12 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:

The State has brought this charge against you. The charge is one of sexual penetration. You pushed your penis inside the vagina of a young child.

The State says that on 14 August last year, 2005, you were at your place at Ponam Island. You took the little girl whose name we cannot mention because of her age, told her to lie down on a platform in the house then you had sexual intercourse with her. At that time the victim was in grade 3 at school and she was 8 years old and she was the daughter of your de facto 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 would accept the guilty plea subject to the allocutus. The applicant had no prior convictions.

Allocutus

10. His Honour said that he would hear what the applicant had to say relating to punishment. The applicant said:

Your Honour, before you deliver the sentence, I say sorry for what I have done. Your Honour, I humbly ask this honourable court for leniency. Your Honour, that is all.

The trial judge said that there was nothing in the allocutus that made the plea equivocal and convicted the applicant.

Submissions

11. The defence counsel, Mr Philip Kaluwin, began by pointing out the offender’s personal particulars: age 34, from Ponam Island, married with three children plus the victim (an adopted child), Catholic, parents both alive, he has one brother and three sisters, educated to grade 7 at Papitalai High School, no formal employment. Mr Kaluwin referred to a decision of Kandakasi J, in Manus, The State v Kemai Lumou (2004) N2684, in...