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Secretary for Law v Dewake [1975] PGSC 31; [1975] PNGLR 100 (30 May 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 100 - Secretary for Law v Kabua Dewake

[1975] PNGLR 100

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SECRETARY FOR LAW

V

KABUA DEWAKE

Port Moresby

Frost CJ Raine Williams JJ

30 May 1975

CRIMINAL LAW - Sentence - Unlawful carnal knowledge against order of nature - Application to increase sentence - Child interfered with, of tender years - Sentence should reflect community�s attitudes to children of tender years - Sentence of 12 months� imprisonment, substituted for term of 4 months.

The defendant, a young man of apparently good character was charged with having unlawful carnal knowledge against the order of nature, under s. 208 of the Criminal Code (Queensland adopted), and unlawfully and indecently dealing with a boy under 14 years of age, under s. 210 of the Code; on a plea of guilty to the first count he was sentenced to four months imprisonment with hard labour, the trial judge taking into account five months in custody pending trial. It was apparent that the offence occurred without premeditation, that penetration was quite minimal and the only injury to the child who was aged 3 1/2 years was a small contusion and laceration. On appeal against the inadequacy of the sentence by the Secretary for Law,

Held

That having regard to the law�s special interest in protecting children of tender years and the strong concern, which should be reflected in the sentence, of the people of Papua New Guinea not only for the general care of children, but that young children should not be exposed to sexual treatment such as occurred here and which is regarded throughout the community as a matter of gravity, the sentence was inadequate to the extent that it was manifestly so and a sentence of twelve months� imprisonment with hard labour should be substituted.

The Secretary for Law v. Kwauga [1974] P.N.G.L.R. 135 applied.

Appeal

This was an appeal brought by the Secretary of Law pursuant to s. 29 (1) of the Supreme Court (Full Court) Act 1968, against a sentence of the Supreme Court on a plea of guilty on a charge under s. 208 of the Criminal Code (Queensland adopted) of unlawful carnal knowledge against the order of nature, on the ground that the sentence imposed of four months imprisonment in hard labour was in the circumstances manifestly inadequate.

Counsel

K. Egan, for the appellant, (Secretary of Law).

C. F. Wall, for the respondent (defendant).

30 May 1975

FROST CJ: This is an appeal against the severity of a sentence imposed by this Court in the Port Moresby sittings on 6th March, 1975.

At the hearing the accused was indicted under two counts: one under s. 208 of the Criminal Code � that he had carnal knowledge of one Kubiri Niba against the order of nature � and secondly under s. 210, that he unlawfully and indecently dealt with Kubiri Niba, a boy under the age of 14 years.

The learned trial judge accepted the accused�s plea of guilty to the first count and accordingly took no plea on the second count. Having had the benefit of an antecedent report and the submissions of counsel, a sentence of four months� imprisonment in hard labour was imposed, the learned trial judge having taken into account the fact that the appellant had been in custody for five months pending trial. The sentence was thus effectively, according to the practice of this Court, one of nine months� imprisonment.

Mr. Egan, for the Secretary for Law, has submitted that this sentence was manifestly inadequate. The principles of law applicable are laid down in the case of R. v. Pia-Afu[cvii]¹, and it is sufficient merely to refer to the passages from the headnote:

�On the hearing of an appeal against sentence pursuant to s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968 the Full Court has an unfettered discretion to vary the sentence imposed by the trial judge.

Whittaker v. The King [1928] HCA 28; (1928), 41 C.L.R. 230, applied.

Although the Full Court has an unfettered discretion, it will not interfere with the sentence pronounced by the trial judge unless it is clearly satisfied that the sentence should be altered. It will give due weight to the opinion of the trial judge, and will recognize that the just sentence to be passed on an offender by a trial judge may depend on circumstances not apparent or available to the court of appeal.�

In the more recent decision of the Full Court upon a similar proceeding, The Secretary for Law v. Kwauga[cviii]², the ground taken by the Full Court for disturbing the trial judge�s sentence was that it was manifestly inadequate.

Let me now turn to the facts of the case. The appellant is a man of about 20 years of age whose normal place of employment is in Morehead in the Western District. At the time in question he was on leave in Port Moresby and in contact with his fellow countrymen from that sub-district. He took a small child, Kubiri aged 3� who spoke the same village tongue, to the beach where, there being no evidence of any premeditation, he committed a sexual offence upon him.

The details are that the child, according to the appellant, poked him (the appellant) in the anus and this gave him bad thoughts. In view of the age of the child this could not be taken as any provocation. In a sitting position he then drew the child to him and forcibly and, as he admitted, had sexual intercourse with the child. But it is apparent that the penetration was quite minimal, for a contusion and laceration of about a centimetre in length were found at the entrance to the child�s anus and the whole incident, according to the appellant, took about three seconds. That conclusion is consistent with all the probabilities having regard to the age of the child.

Mr. Egan with his customary fairness conceded that this was only a technical sodomy but, in justifying the propriety of the charge, he pointed to the difficulty of a prosecutor who has to deal with a case in which there is sufficient evidence to support a charge in taking any other course than to indict for that charge. Section 208 of the Code under which the accused pleaded guilty provides, so far as is relevant, that �Any person who has carnal knowledge of any person against the order of nature ... is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years�.

There were two other relevant charges. First, the alternative charge in the indictment under s. 210, and s. 209 which provides for attempts to commit unnatural offences.

Now it is true in this case there is evidence of some penetration sufficient to constitute carnal knowledge. I would suggest to the prosecutor two tests which might usefully be accepted in determining the offence, if any, with which the prisoner should be charged. As has been said, it is a leading consideration that, in the administration of justice, the law should not be strained against a man. The other test which was mentioned to me by my brother Williams, is that the governing consideration is: what does the public interest require? The public interest may not require a charge to be laid at all. But if in the public interest a charge should be laid, the real substance of the offence should be taken into account.

In the circumstances of this case, I consider that if either of these tests had been in the mind of the prosecutor then the indictment would not have been laid under s. 208 but only under s. 210, under which the learned trial judge clearly considered the case for punishment.

The learned trial judge properly took into account the facts that this was a spontaneous act by a young man of apparently good character, and that the child had suffered no lasting harm. He thus considered that effective sentence of nine months would be sufficient. However, having given the matter full consideration and taking into account Mr. Wall�s helpful and lucid argument, in my opinion, the learned trial judge failed to give sufficient weight to two matters. One was the age of the child who was interfered with to the extent of some physical injury, and was of such a tender age which it is the law�s special interest to protect. The impressions a forcible incident such as this might have on a child�s mind cannot be overlooked.

The second matter is the strong concern, which should be reflected in the sentence, of the people of Papua New Guinea not only for the general care of children, but that young children should not be exposed to sexual treatment such as this which is regarded throughout the country as a matter of gravity.

Taking into account these considerations I have come to the conclusion that the sentence was inadequate to the extent that it was manifestly so. The sentence which in my judgment should be substituted for the sentence that was imposed is a sentence of 12 months� imprisonment in hard labour.

RAINE J: I agree and I have nothing to add.

WILLIAMS J: I agree with the sentence proposed to be substituted by the Chief Justice and I agree in substance with his reasons for that decision.

Appeal allowed. Sentence varied so that a sentence of 12 months� imprisonment in hard labour should be substituted for sentence imposed.

Solicitor for the appellant: B. W. Kidu, Crown Solicitor.

Solicitor for the respondent: N. H. Pratt, Acting Public Solicitor.

[cvii][1971-72] P. & N.G.L.R. 393.

[cviii][1974] P.N.G.L.R. 135.