Papua New Guinea Law Reports - 1987
[1987] PNGLR 447
N652
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
ALBERT MONJA
Waigani
King AJ
27 November 1987
CRIMINAL LAW - Sentence - Relevant matters - Plea of guilty to test principle - Where genuine - Discounting of sentence as on plea of guilty permitted.
Where a plea of not guilty is made and “tested” in a case in which a genuinely doubtful point of far reaching importance arises, the accused should be accorded similar discounting of sentence as might in an appropriate case be permitted on a plea of guilty.
Sentence
Following a trial on charges of rape in which the accused pleaded guilty King AJ ruled that the accused could be convicted of attempted rape to which he then pleaded guilty. The following reasons for sentence were delivered.
Counsel
J Mugabwa, for the State.
D Sode, for the accused.
27 November 1987
KING AJ: You are back before the Court because I have decided as a matter of law that even though the evidence in your case was that you had actual intercourse with the woman you may be convicted of the lesser offence of attempted rape. Your lawyer, Mr Sode, has not argued now that you should not be so convicted and that seems to me to be the only course he could have taken. Accordingly you are convicted of attempted rape and I shall now proceed to the matter of sentence.
[Allocutus]
[Counsel addressed]
You are a very young man with no prior criminal record, and in addition it is clear that you are not in any way a “criminal type” or inclined to associate with known criminals or undesirable in the community. It has been correctly put on your behalf that your offence was without any aggravating features and in particular that no injury or harm was done to your victim. At the time of the offence you were affected by alcohol and I accept that you may not have done as you did if you had been sober. I also accept that to some extent you were goaded by the young men you were with and that you believed the woman you approached (who was asleep) to be a different girl whom you knew and had reason to believe would respond favourably to your physical advances.
I also accept that in your daily life you had shown a commendable commitment to your parents and that they will suffer hardship through your imprisonment.
However, against those things must be placed the indisputable fact that you committed a serious and all too prevalent crime against an innocent woman. This type of offence is regarded very seriously and calls for a significant custodial sentence. Women must be able to go safely and unmolested about their everyday activities. In my view, but for one final matter I am about to mention, a sentence of about four years imprisonment in addition to time spent in custody to date would be appropriate for this offence.
However, it is a novel feature of your case that at all times you co-operated with the authorities, namely the village officials and the police. You admitted your guilt, and in the normal course your case would have come before the court as a plea of guilty. The policy of the Court is to discount sentences quite significantly in that event. The only reason you did not plead guilty was because in the considered opinion of your legal advisers the facts of your case gave rise to a genuine point of law which they wished to have determined not only for the purposes of your case but to clarify the point for the purposes of future cases.
This state of affairs from time to time arises in the working of the law. The law has to a considerable extent developed through the decision of “test cases” to clarify areas that are genuinely doubtful. This process is beneficial to the community as well as to individual judges, lawyers and litigants faced with a particular case. In these circumstances it does not seem to me to be fair to deprive you of the lower sentence appropriate on a plea of guilty when your not guilty plea was on legal advice for reasons of possible importance extending beyond your particular case.
I should say, however, that this approach to sentence in a so called “test case” will always depend on whether the matter really was one in which a genuinely doubtful point of possibly far-reaching importance arose. If the point taken in this matter had been of no real substance, I would not be prepared to take the course I am about to take. I know that this attitude casts the burden on defence lawyers to be realistic and select “test cases” with care at the risk that their clients will suffer if they advance unmeritorious arguments, but I see no alternative as a safeguard.
Because I take the view that this was a legitimate “test case”, although perhaps close to the borderline, instead of sentencing you to a further four years in hard labour, I sentence you altogether to three years and one month in hard labour. Taking into account the seven months you have spent in custody, you must serve a further two and a half years imprisonment in hard labour.
Sentenced accordingly
Lawyer for State: Public Prosecutor.
Lawyer for defence: Public Solicitor.