N4484

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1078 0F 2004

THE STATE

V

JOE SIME

Buka:: Cannings J
2003: 23, 24, 25 August

SENTENCE

CRIMINAL LAW– Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence on plea of guilty – rape in circumstances of aggravation, Section 347(2) – abuse of position of trust, authority or dependency – maximum penalty of life imprisonment – starting point – identification of relevant considerations – sentence of 10 years. 

A mature-aged man pleaded guilty to the rape of his niece, a grade 6 school student, aged 16. He tricked her by saying he would take her to a village where his relatives live. He led her along a bush track, asked her for sex and she refused. He threatened her with a small axe. The complainant was afraid. It was getting dark and no one was around. He sexually penetrated her without her consent. He was indicted for aggravated rape, the circumstances of aggravation being the abuse of trust, authority and dependency arising by virtue of his being the complainant''''s uncle. The maximum sentence for aggravated rape is life imprisonment.

Held:

The starting point for sentencing for aggravated rape is 15 years imprisonment. 

Mitigating factors are: offender acted alone; no torture; no confinement; victim not a disabled person; no STD; no other indignity; co-operated with police; no further trouble; pleaded guilty; expressed remorse; first offender; offender a family man; serving another sentence, in poor conditions.

Aggravating factors are: large age gap; young victim; threatening weapon; serious breach of trust; member of extended family; pre-meditated crime; no provocation; emotional impact on victim; did not give himself up; no reconciliation; not a youthful offender.

A sentence of 10 years was imposed. The pre-sentence period in custody of nine months was deducted. No part of the sentence was suspended. 

Cases cited

The following cases are cited in the judgment:

Daniel Kemi Mebil v The State (2004) SC749
John Aubuku v The State [1987] PNGLR 267
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alphonse Apou Dioro (2003) N2431
The State v Bernard Nanau Porai (2005) N2944
The State v Damien Mangawi (2003) N2419
The State v Dibol Petrus Kopal (2004) N2778
The State v Donald Angavia & 2 Others (2004) N2590 
The State v Donald Poni (2004) N2663
The State v Eki Kondi and 4 Others (No 2) (2004) N2543
The State v Ezra Hiviki (No 2) (2004) N2548
The State v Flotyme Sina (No 2) (2004) N2541
The State v Gary Sasoropa and 2 Others (No 2) (2004) N2569
The State v Henry Nandiro (No 2) (2004) N2668
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Julius Ombi (No 2) (2004) N2552
The State v Junior Apen Sibu (No 2) (2004) N2567
The State v Komai Balal (No 2) (2005) N2821
The State v Kunija Osake (2003) N2380
The State v Luke Sitban (No 2) (2004) N2566
The State v Michael Waluka Lala, CR No 215 of 2004, 08.06.05, unreported
The State v Moses Jafisa Winga (2005) N2952
The State v Mufe Gabing (2005) N2943
The State v Nick Teptep (2004) N2612
The State v Noutim Mausen, CR No 596 of 2004, 24.08.05, unreported
The State v Pais Steven Sow (No 2) (2004) N2588
The State v Peter Huli Hahe Haite (2003) N2383
The State v Seyo Aroko (2005) N2822
The State v Thomas Madi (2004) N2625

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome 
ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
HIV – Human Immunodeficiency Virus 
J – Justice
N – National Court judgment
No – number
pm – post meridiem (after noon)
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal 
STD – sexually transmitted disease
v – versus

Tables

The following tables appear in the judgment:

1 –	Sentences for rape since 2003	
2 –	Calculation of final sentence	

PLEA

A man pleaded guilty to rape and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a man who pleaded guilty to aggravated rape under Section 347 of the Criminal Code. He faced the following indictment:

Joe Sime of Pir, Bogia, Madang Province, stands charged that he on the 4th day of November 2003 at Rueme, Wakunai … sexually penetrated [the complainant] without her consent.

And in committing the offence Joe Sime, abused a position of trust, authority and dependence with [the complainant].

CONVICTION

2. The offender pleaded guilty to the following facts: 

3. The complainant was a grade 6 schoolgirl. The offender was her uncle. He saw her at Rueme village about 6.00 pm and tricked her by saying he would take her to Teiyup village where his relatives live. He led her along a bush track, asked her for sex and she refused. He threatened her with a small axe. The complainant was afraid. It was getting dark and no one was around. He removed her clothes, laid her on the ground, removed his own clothes and sexually penetrated her without her consent. After raping her, the offender took her back to Rueme, not to Teiyup.

4. Under Section 1 of the Criminal Code """"the complainant"""" means """"a person against whom an offence is alleged to have been committed"""". 

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

Firstly, I apologise to this Court for what I have done. Secondly, I sincerely apologise to the victim for what I did to her. Lastly, please have mercy on me.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions 

The offender made some admissions to the police early in the investigation.
 
The offender was assaulted by one of the victim''''s relatives after the incident. 

Allocutus 

He expressed remorse.

Matters raised by defence counsel

No aggravated physical violence was used. 

PERSONAL PARTICULARS

8. The offender, Joe Sime, is aged 37 and married with seven children. He comes from a family of eight. He was educated at Madang Primary School, Utu High School and Hagen Technical College. Before coming to Bougainville, he was employed in Rabaul. He was a pastor of the Christian Ministry Fellowship at the time of the offence.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he did not inflict any physical injury on the victim; although he has been convicted of aggravated rape, it was not in the ''''worst case'''' category. He submitted that a sentence of five to eight years would be appropriate. He pointed out that the offender is serving an effective sentence of four years for escape from lawful custody (one year of a five-year sentence was suspended). The offender escaped while on remand for the rape charge. Mr Kaluwin submitted that though that was a separate offence, the court should consider the totality of the sentence and avoid imposing a sentence that would be crushing. 

SUBMISSIONS BY THE STATE

10. Mr Luman, for the State, submitted that this was a serious case in view of the breach of trust involved, the fact that the rape was premeditated and the offender''''s status as a church pastor. Mr Luman asked that the court take into account that the case was set down as a two-day trial and the offender only indicated that he would plead guilty at the last moment. A sentence of 15 to 17 years would be appropriate.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

step 1: what is the maximum penalty?

step 2: what is a proper starting point?

step 3: what sentences have been imposed in other cases? 

step 4: what should the head sentence be?

step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 347 (definition of rape) of the Criminal Code states:

(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.

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

Circumstances of aggravation are defined by Section 349A (interpretation) of the Criminal Code, which states:

For the purposes of this Division [Division V.7 (sexual offences and abduction)], circumstances of aggravation include, but [are] 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). 

13. The circumstances of aggravation prescribed by Section 349(e) were charged in the indictment. There was an existing relationship of trust, authority and dependency, as defined by Section 6A of the Criminal Code, which states:

(1)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2)	A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b)	the accused has care or custody of the complainant; or
(c)	the accused is the complainant''s grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or
(d)	the accused is a school teacher and the complainant is his pupil; or
(e)	the accused is a religious instructor to the complainant; or
(f)	the accused is a counsellor or youth worker acting in his professional capacity; or
(g)	the accused is a health care professional and the complainant is his patient; or
(h)	the accused is a police or prison officer and the complainant is in his care and control.

14. The offender was the complainant''''s uncle, so Section 6A(2)(c) applied. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. 

STEP 2: WHAT IS A PROPER STARTING POINT?

15. In a series of sentencing decisions for rape, Kandakasi J has suggested that the sentence for aggravated rape should be at least 15 years imprisonment. In The State v Donald Angavia & 2 Others (2004) N2590 his Honour stated: 

Where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors … the sentence should be beyond 15 years. 

16. His Honour took the same approach in The State v Luke Sitban (No 2) (2004) N2566 and The State v Henry Nandiro (No 2) (2004) N2668. As I pointed out in The State v James Yali (2006) N2989 I agree that it is proper to use 15 years as a starting point for aggravated rape. 

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED IN OTHER CASES?

17. Before I fix a sentence, I will consider recent sentences that have been imposed for rape, as shown in the table below.

TABLE 3: SENTENCES FOR RAPE SINCE 2003

No	Case	Details	Sentence	
1	The State v Kunija Osake (2003) N2380, Jalina J	Offender raped an 11-year-old girl – guilty plea – breach of trust.	18 years	
2	The State v Peter Huli Hahe Haite (2003) N2383, Jalina J	Rape of 11-year-old girl – guilty plea – offender had prior convictions for rapes of young girls.	20 years	
3	The State v Damien Mangawi (2003) 2419,
Kandakasi J	Offender convicted of unlawful carnal knowledge of girl under 12 years – guilty plea – no prior conviction – no remorse – breach of trust.	12 years	
4	The State v Alphonse Apou Dioro (2003) N2431, Davani J	Offender pleaded guilty to gang rape of 15-year-old girl – over seven hours – use of bush knives and various other weapons.	16 years	
5	The State v Flotyme Sina (No 2) (2004) N2541, Kandakasi J	Offender convicted after trial of rape of a married woman – no prior conviction – no physical injuries – customary compensation paid.	17 years	
6	The State v Eki Kondi and 4 Others (No 2)
(2004) N2543, Kandakasi J	Gang abduction and rape in broad daylight – offenders armed with bush knives – threats of violence to third parties – conviction after trial.	18-25 years, depending on degree of participation and age	
7	The State v Ezra Hiviki (No 2) (2004) N2548,
Kandakasi J	Rape of 10-year-old girl by older relative – breach of trust – vaginal injuries requiring medical repair – guilty plea – expression of remorse – first, young offender.	13 years	
8	The State v Julius Ombi (No 2) (2004) N2552, Kandakasi J	Abduction and attempted rape of a relative – breach of trust – conviction after trial – first, young offender – no remorse.	9 years	
9	The State v Luke Sitban (No 2) (2004) N2566, Kandakasi J	Offender raped a 10-year-old girl – conviction after trial – no prior conviction – no physical injuries – no customary compensation paid – no remorse.	17 years	
10	The State v Junior Apen Sibu (No 2) (2004) N2567, Kandakasi J	Rape of a 10-year-old girl – breach of trust – conviction after trial – no remorse – first, young offender.	13 years	
11	The State v Gary Sasoropa and 2 Others (No 2) (2004) N2569,
Kandakasi J	Gang rape of girlfriend and relative – repeated acts of rape – conviction after trial. 	22-25 years depending on prior convictions	
12	The State v Pais Steven Sow (2004) N2588, Kandakasi J	Offender convicted after trial of rape of a married woman in presence of small children – offender known to victim – breach of de facto trust – guilty plea – first offender.	15 years	
13	The State v Donald Angavia and 2 Others (No 2) (2004) N2590,
Kandakasi J	Gang rape – breach of trust by boyfriend – first, young offenders – conviction after trial.	17 years	
14	The State v Nick Teptep (2004) N2612, Sevua J	Pack rape – guilty plea – no remorse.	14 years	
15	The State v Thomas Madi (2004) N2625,
Sevua J	The offender, a bus driver, raped one of his passengers, a female school student.	12 years	
16	The State v Donald Poni (2004) N2663,
Kandakasi J	Gang abduction and rape – use of weapon – offence committed in middle of night – conviction after trial – no remorse.	19 years	
17	The State v Henry Nandiro (No 2) (2004) N2668, Kandakasi J	Armed gang rape of 14-year-old girl – conviction after trial – no prior conviction – physical injuries to victim.	20 years	
18	The State v Dibol Petrus Kopal (2004) N2778, Lay J	Rape in course of a robbery – weapons – but no circumstances of aggravation charged – trial – conviction under Section 347(1).	14 years	
19	The State v Komai Balal (No 2) (2005) N2821, Manuhu AJ	Offender raped his 13-year-old daughter – victim tied up and left in bush.	15 years	
20 	The State v Seyo Aroko (2005) N2822, Manuhu AJ	Offender raped mother of nine-month-old baby – some violence – victim wounded.	8 years	
21	Daniel Kemi Mebil v The State (2004) SC749, Injia DCJ, Kirriwom J, Gavara-Nanu J	This was an appeal against sentence imposed for attempted rape – bush knife used – victim''''s hands cut – appeal dismissed.	7 years	
22	The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05,
Cannings J	The offender pleaded guilty to rape constituted by forcing the victim to suck his penis – no aggravated violence – no prior convictions – remorse – conviction under Section 347(1).	4 years	
23	The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05, Cannings J	Offender, 20-years-old, convicted after trial of raping a middle-aged woman – threatened to use bush knife – no circumstances of aggravation charged – conviction under Section 347(1).	10 years	
24	The State v Mufe Gabing (2005) N2943, Kirriwom J	Offender pleaded guilty – gang-rape – offender aged 15 at time – no aggravated physical violence – conviction just prior to due date of release re another offence.	4 years	
25	The State v Bernard Nanau Porai (2005) N2944, Lay J	Offender pleaded guilty to one count of rape under Section 347(1) – 15-year-old victim; 23-year-old offender – no aggravating circumstances.	10 years	
26	The State v Moses Jafisa Winga (2005) N2952, Kandakasi J	Offender convicted after trial to two counts of rape of a schoolgirl – his niece – use of bushknife.	27 years	
27	The State v James Yali (2006) N2989, Cannings J	Offender raped 17-year old sister of his de facto wife – no circumstances of aggravation charged – conviction under Section 347(1).	12 years	
28	The State v Jeffery Wangi (2006) 3016,
Cannings J	Offender pleaded guilty to rape of 8-year-old girl – no circumstances of aggravation charged in indictment – conviction under Section 347(1).	14 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

18. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. The list is based on the considerations I identified in Yali''''s case. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

19. Three sorts of considerations are listed. 

20. Numbers 1 to 15 focus on the circumstances of the incident. They are an amalgam of the circumstances of aggravation prescribed by Section 349A, the considerations highlighted by the Supreme Court in John Aubuku v The State [1987] PNGLR 267 and some things that I consider should be taken into account to capture the full circumstances of what happened. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence. 

21. Numbers 16 to 21 focus on what the offender has done since the incident and how he has conducted himself. 

22. Numbers 22 to 26 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Is there only a small age difference between the offender and the complainant? No – the exact age of the victim is uncertain. Though she was only in grade 6. Counsel estimated her age at about 16. I accept that. The offender was about 35 at the time of the offence. The age difference, of 19 years, is considerable.

Is the complainant well over the age of 16 years and not an old person? No.

Was there only one offender? Yes.

Did the offender not use or threaten to use a weapon? No – he had a small axe.

Did the offender not torture or cause grievous bodily harm? Yes. 

Did the offender not confine or restrain the complainant before or after the commission of the offence? Yes. 

Did the offender not abuse a position of trust, authority or dependency? No – he was her uncle and a church pastor.

Was the offender not a member of the same family or clan as the victim? No – he was a member of her extended family.

Did the victim not suffer from a serious physical or mental disability? Yes.

Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim? Yes. 

Was the offence unplanned, ie was it a spontaneous incident? No – it was premeditated.

Did the victim provoke or aggravate the offence? No.

Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape? Yes. 

Did the offender treat the victim with dignity immediately after committing the offence? Neutral. He took her home. He could have done better, but also could have done much worse.

Did the incident have a minimal emotional impact on the victim? No – the court does not have this information and therefore must presume that the emotional impact was serious.

Did the offender give himself up after the incident? No.

Did the offender cooperate with the police in their investigations? Yes.

Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.

Has the offender not caused further trouble to the complainant or the complainant''''s family since the incident? Yes.

Has the offender pleaded guilty? Yes – I do not discount the effect of the guilty plea for it being a late plea. 

Has the offender genuinely expressed remorse? Yes.

Is this his first offence? Yes.

Can the offender be regarded as a youthful offender? No. 

Will a lengthy gaol term have an adverse effect on the offender''''s family and others dependent on him? Yes.

Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service? Neutral. Little is known about the offender except that he was a church pastor.

Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – I take into account that the offender is already serving a term of imprisonment of at least four years for escaping from custody. He was being held in the Buka police lock-up when he escaped. I also take into account the condition of that lock-up – it is appalling and in breach of the human rights provisions of the National Constitution and the Bougainville Constitution – and the fact that Bougainville does not have a proper correctional institution now. 

23. To recap, mitigating factors are: 

No 3 – offender acted alone;
No 5 – no torture;
No 6 – no confinement;
No 9 – victim not a disabled person;
No 10 – no STD;
No 13 – no other indignity; 
No 17 – co-operated with police;
No 19 – no further trouble;
No 20 – pleaded guilty;
No 21 – expressed remorse;
No 22 – first offender;
No 24 – offender a family man;
No 26 – serving another sentence, in poor conditions.

24. Aggravating factors are:

No 1 – large age gap;
No 2 – young victim;
No 4 – threatening weapon;
No 7 – serious breach of trust;
No 8 – member of extended family;
No 11 – pre-meditated crime;
No 12 – no provocation;
No 15 – emotional impact on victim;
No 16 – did not give himself up;
No 18 – no reconciliation;
No 23 – not a youthful offender.

25. No 14 (treatment of victim) and No 25 (prior character) are neutral. Weighing all these factors and bearing in mind that there are 13 mitigating factors compared to 11 aggravating factors, and comparing this case with the others listed, I consider that the head sentence should be below the starting point of 15 years. I have given a lot of weight to factor No 26 – the offender is already serving a sentence for escape. Although the effective sentence of four years is entirely reasonable, I am persuaded by Mr Kaluwin''''s submission that I should consider the totality of the criminal conduct involved and avoid imposing a sentence that will be crushing.

26. I accordingly fix a head sentence of 10 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

27. The offender has spent nine months in custody in connexion with this offence, excluding the period he has been imprisoned for the escape conviction. It is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

TABLE 2: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	9 months	
Resultant length of sentence to be served	9 years, 3 months	

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is a serious case of rape and I do not think it is appropriate for the court to consider suspending any part of the sentence at this stage. To suspend the sentence would tend to diminish the gravity of the crime that Joe Sime has committed. 

29. Current sentencing principles require that the offender serve a considerable time in custody. I have considered qualifying the sentence by indicating a minimum term in gaol which he has to serve. However, I have decided not to set a minimum term in view of the nature and gravity of the crime and the lack of any tangible reconciliation with the victim.

SENTENCE

30. Joe Sime, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	9 months	
Resultant length of sentence to be served	9 years, 3 months	
Amount of sentence suspended	Nil 	
Time to be served in custody	9 years, 3 months; in addition to the existing sentence for escape	

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused