Court denies review of case of abused girl, 13

The National National

By TREVOR WAHUNE
THE Supreme Court in Waigani has refused a review application of a man sentenced to 22 years in prison for sexually abusing his 13-year-old adopted daughter.
The court presided by Justice David Cannings, Justice Iova Geita and Justice Leka Nablu refused the application of the West New Britain man after he failed to convince the court that trial judge ustice Nicholas Kirriwom made a number of errors in his judgment, and that his judgment was excessive. The applicant’s grounds to review were that the trial judge made errors, saying he failed to:
lTake account of the mitigating factors the applicant had no prior convictions and expressed remorse for his actions and expressed a willingness to compensate the victim;
lTo consider that the applicant only sexually touched the victim, but did not sexually penetrate her; and
lMistakenly took into account as an aggravating factor that the applicant had infected the victim with a sexually transmitted disease.
The bench held that in applying for review of a sentence, the applicant was in the same position as a person appealing against the sentence, and that he must show that the trial judge either made an identifiable error that had the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguable) excessive.
The court upheld that the trial judge made no identifiable errors as he had:

  • Taken into account that the applicant had no prior convictions;
  • Properly given no weight to the issue of compensation as it was not raised by the applicant in his allocutus or in his lawyer’s submissions on the sentence;
  • Properly taken into account that sexual penetration had occurred on three occasions as that was the judge’s finding of fact in the decision on the verdict; and
  • Properly rejected the State’s submission that the applicant had infected the victim with a sexually transmitted disease.

The bench also held that given the maximum sentence was life imprisonment, the sentence of 22 years imprisonment was not exceptional, given the gravity of the offence.