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State v Kopal [2004] PGNC 9; N2778 (21 October 2004)

N2778

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 88 of 2000

THE STATE

AND

DIBOL PETRUS KOPAL

Kundiawa: LAY, J
2004: 11th and 21st October

CRIMINAL LAW – Criminal Code – amendment – s11 – s528 – circumstances of aggravation, necessity to charge in indictment – s347 – s349A – s386 - rape and robbery – sentence – robbery of a person on the street - Interpretation Act s.63 – s386 – robbery – circumstance of aggravation – rape – s347 – whether charge under s347 as amended or pre-amendment s347 – effect of Criminal Code (Sexual Offences and Crimes Against Children) Act – circumstances of aggravation not charged – whether circumstance of aggravation to be taken into account on sentence.

DECISION ON SENTENCE

Counsel:
Mr Kasen for the state
Mr Apie’e for the defendant

Cases Cited:
The State v Tom Gaia [1986] N544
Baza Tiadu Avona v State [1986] PNGLR 148
Taiba Maima v Ben Hambaken Sma [1971-72] PNGLR 49
The State v Miseal Butemo Jiregari [1984] PNGLR 62
Lawrence Hindemba v State (1998) SC593
Gimble v State [1998] PNGLR 271
Public Prosecutor v Don Hale (1998) Sc564
Tau Jim Anis v The State (2000) SC642
The State v Sul Kora N2092
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Paul Mase & Kope Lore John v The State [1991] PNGLR 88

Facts

The Defendant was found guilty of robbery, with arms and threats of violence in company of 7 other men, of three people walking on a bush track, and of rape of the female victim. The offences occurred before the commencement of the Criminal Code (Sexual Offences and Crimes against Children) Act and the indictment presented after its commencement. No circumstances of aggravation specified in the new s349A were charged in the indictment in respect of the charge of rape.

Held

The substantive effect of the Criminal Code (Sexual Offences and Crimes against Children)Act is to amend rather than repeal s347 of the Criminal Code. Therefore s.63 of the Interpretation Act had no application and the indictment was presented under s347 as amended and not the former form of s347 preserved by s63 of the Interpretation Act.. Although circumstances of aggravation specified in s349A were proven, they were not charged in the indictment. The maximum sentence was therefore 15 years pursuant to s347(1). The proven facts of circumstances of aggravation could be taken into account in assessing the appropriate sentence within the range for the offence charged but not so as to increase the maximum sentence to life imprisonment pursuant to s347(2). The appropriate sentence for the rape was 14 years and for the robbery of a person on the street with aggravating factors 8 years. Applying the totality principle total sentence was reduced to 16 years.

LAY, J. After a trial the Defendant has been convicted of one count of robbery whilst armed and in company of 7 other people and with threats of violence, and one count of rape, with no circumstances of aggravation charged in the indictment.

The full facts are set in the ruling on the voir dire on the admissibility of the Record of Interview (which was not admitted into evidence) and the decision on verdict delivered on 11th October 2004. For the purposes of sentence it is sufficient to note that the Defendant was in company of 7 other men, he was armed with a gun and the others were armed with bush knives. Before ambushing the victims the accused gained their trust by assuring them there was no one else around. They knew him and were aware that he had been a reserve constable. The Defendant appeared to be the leader of the gang and the one giving directions and organising the others of the gang. He gave orders for the victim and her two male companions to drop their cargo valued at about K470 and he took the victim into the bush, ordered her to lie down and removed her laplap. He threatened the two male companions with his gun so that they ran off & he stood guard while six of the others took turns in raping the victim, then he raped her. Apart from the multiple rape, which is violence enough, there was no other violence to the victim.

The victim was a mature woman in her mid 30’s. The Defendant is aged in his late 30’s, married with 3 children the eldest of whom is 9-10 years. He is a subsistence farmer at Kerowagi. He has had minimal education. He was engaged for 2 years as a Reserve Constable but lost that job due to staff cut backs. He is a first offender.

The Law

Rape

The relevant sections of the Criminal Code on sentence are ss.347, and 349A and I set out those provisions below:

347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where-

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant; or

(g) the complainant has a serious physical or mental disability; or

(h) the complainant was pregnant at the time of the offence; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

Section 347 has been amended since the offence was committed and Sections 347A and 349A have been inserted in the Code since that date. The Code makes the following provision for such circumstances:

11. Effect of changes in law.

(1) A person cannot be punished for doing or omitting to do an act unless-

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

S. 63 of the Interpretation Act preserves an offence committed under a repealed provision in the following terms:

63. Effect of repeal.

(1) The repeal of a provision does not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

s.11 of the Criminal Code and s.63 of the Interpretation Act were discussed by this Court in The State v Tom Gaia[1] on the question of changes to both the offence and penalty and in relation to a change of penalty only they were discussed in the Supreme court case of Baza Taidu Avona v State[2].

It is a threshold question to determine whether the charge under Section 347 is one under the un-amended Section preserved by s.63 of the Interpretation Act or the new provision applied in conjunction with s.11 of the Criminal Code . And in order to determine that, the Supreme Court said in Avona’s Case, I must decide if the provision is an amending one or a repealing one, as s.63 of the Interpretation Act applies only to the latter. To do that one looks at the substance rather than the form of the provision, the relevant provision being the Criminal Code (Sexual Offences and Crimes against Children) Act 2002. Under Division 7 of the Criminal Code as it has been amended the maximum sentence under s.347 for rape without circumstances of aggravation is 15 years and with circumstances of aggravation, it is life imprisonment. Although the amending legislation speaks of repealing and replacing s347 the effect is to amend the provision so that it is non gender specific and to divide the penalty provision into two categories, 15 years and life. I find the substantive effect of the Act is to amend rather than repeal and therefore that s.63 of the Interpretation Act has no application.

When a State Prosecutor draws up an indictment pursuant to s.525 of the Criminal Code the indictment must contain "a charge of any offence that the evidence appears to him to warrant;" and pursuant to s.528(2):

"Subject to subsection (3) and (4), if any circumstances of aggravation is intended to be relied upon it must be charged in the indictment."

Subsections (3) and (4) deal with previous convictions and are not relevant for present purposes. I read s.528(2) to mean that the circumstances of aggravation intended to be relied upon in respect of each charge contained in the indictment must be charged in the indictment. In an indictment alleging multiple charges, it is not sufficient to allege circumstances of aggravation in respect of one charge only if those or other circumstances are to be relied upon in respect of another or other charges in the indictment. It would be acceptable to put the circumstances of aggravation in a schedule in the Indictment and refer to them in each charge as the "scheduled circumstances of aggravation", to save repetition, if the same circumstances were to be relied upon in respect of several charges in the one indictment. But it must be clear to the accused on arraignment, in respect of each charge, what charge is being presented against him so that he can know the consequent penalties to which he is exposed.

Returning then to the application of s11(2) of the Criminal Code, in Avona the Court said for ease of obtaining the true meaning of s.11(2) of the Criminal Code one can add the words "whichever is the lesser" to the end of the section. It then becomes plain in applying s.11(2) that a person who committed the offence of rape before the amendment to s.347 and who is charged without circumstances of aggravation after the amendement, cannot be punished to any greater extend than "ís authorized by the latter law", being the 15 years specified in s.347(1).

Facts and the Law

In this case no circumstances of aggravation were charged in the indictment in respect of the rape charge. I suspect this situation is a product of the amended Division 7 of the Criminal Code not being familiar to State Prosecutors. It presents me with an issue which may not arise with any great frequency in the future. That is, what approach to take in determining a proper sentence where the facts disclose circumstances of aggravation which have not been charged in the indictment?

The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Taiba Maima v Ben Hambakon Sma[3]. There is no doubt that there have been worse cases of rape than the present one. There is for example no evidence in this case that the victim contracted a disease or that she suffered any general assault or torture or binding. However one would expect that in future such cases and cases such as the present one would be indicted with charged circumstances of aggravation. I therefore consider that the proper approach in this case is to take the proven facts into account. I am supported in my view of the effect of the prosecution not charging the circumstances of aggravation in the indictment and my view that I must take all of the proven facts into account by the remarks of Pratt J. in The State v Miseal Butemo Jiregari[4].

I find that although this rape is not one of the worst amongst all cases of rape, it is one of the worst type of rape of the class where circumstances of aggravation are not charged. I therefore impose a sentence of 14 years in hard labour. This is consistent with the observations of the Supreme Court in Lawrence Hindemba v State[5] where the court said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State sc 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

If the Defendant had been charged with the aggravating circumstances then the sentence could have been several years greater.

Robbery

Counsel for the defendant suggested that this case fell into the category of 1(d) "robbery of a person on the street" of the list in Gimble v State[6] and I agree.

The Prosecutor emphasizes that the case of Public Prosecutor v. Don Hale[7] (1998) SC564 increased the sentences in Gimble v State and that since that case sentencing trends have increased further.

The Supreme Court in Public Prosecutor v. Don Hale (supra) held that the various ranges of sentence for the categories of robbery listed in Gimble v. State may no longer be appropriate although the categories and their relationship to each other are still good law.

In Tau Jim Anis v. The State[8] (2000) the Supreme Court applied the 3 year increase of the tariff applied in Don Hale to the tariff for robbery of a factory, to set a new starting point of 8 years where there was actual violence (a man kicked) and a sum stolen of just over K20,000 but mitigating factors of young first offenders and a plea of guilty. Recent cases suggest that current sentences in these circumstances are in the range of 9 to 12 years. Adding three years to the starting point of three years suggested in Gimble v State will produce a 6 year starting point for robbery of a person on the street. No doubt one of the considerations of the Supreme Court in State v Gimble for placing robbery of a person on the street in the lowest category is the opportunity of the victim to run away, and not be trapped in their home, car or shop.

There is only one case of robbery of a person on the street reported in recent years, which is the State v Sul Kora[9]. That was a case of robbery in a public toilet where the defendant punched the victim and stolen a packet of cigarettes. A sentence of 6 years was imposed, part suspended based on receipt of a Probation Report. It was an aggravated robbery because personal violence (s.386(2)(c)) was used. However it must be regarded as on the lower scale of such violence.

In the present case the only mitigating factor is that it is the Defendant’s first offence. The aggravating factors are that the Defendant was armed with a dangerous or offensive weapon(s.386(2)(a)). He was in company with one or more other persons"(s.386(2)(b). Surrounding the victims with the defendants friends all armed with bush knives and pointing the gun at them constituted a threat of violence and cut off the avenues of escape. The amount stolen of over K400 was not a great sum compared with the amounts stolen in other types of robbery. Nevertheless it was a very significant sum of money to the victims and took away the capital with which they had planned to trade in the village. A further mitigating factor is that the Defendant was, and was known to the victims, as a former law officer. I consider in this case that a sentence of eight years in hard labour is appropriate.

The Supreme Court has considered the question of whether or not sentences for rape and robbery should be cumulative or concurrent. In Acting Public Prosecutor v Konis Haha[10] the Court said:

"We consider that the inherent gravity of the offence of rape on the one hand and armed robbery on the other and their separate nature, albeit committed within a short space of time, should lead to separate and consecutive sentences. Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate"...The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive." ...'

These observations were approved and applied in Paul Mase and Kope Lore John v The State[11]. Applying those cases I will impose consecutive sentences.

In the present case the sentence for rape of 14 years and the sentence for robbery of 8 years total 22 years Applying the totality principle this total sentence I consider to be excessive. I will therefore reduce the sentence for rape to 10 years and the sentence for robbery to 6 years giving a total of 16 years in hard labour and impose a sentence accordingly. The time already served to be deducted.

Lawyers:
For the State : State Prosecutor
For the defendant : Public Solicitor

^[1] (1986) N544 per Kapi DCJ
^[2] [1986] PNGLR 148 Kidu CJ Amet, Cory, Los and Wilson JJ.
^[3] [1971-72] PNGLR 49 Prentice J
^[4] [1984]PNGLR 62 per Pratt J
^[5] (1998) SC593 per Woods, Injia and Sawong JJ.
^[6] [1998-89] PNGLR 271 Bredmeyer, Los and Hinchliffe JJ
^[7] (1998) SC564 Amet CJ Wood and Kirrowom JJ.
^[8] (2000) SC642 Sheehan, Jalina and Kirrowom JJ
^[9] (28/5/2001) N2092 per Kandakasi J
^[10] [1981] PNGLR 205@214 per Kidu cJ, Andrew J and Pratt J
^[11] [1991] PNGLR 88 per Kidu CJ Amet and Brown JJ.