N4491

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 928 0F 1997

THE STATE

V

ALEX MATASOL HAGALI

Buka: Cannings J
2006: 28, 29 September

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after trial – conviction on two counts of rape – no circumstances of aggravation charged – maximum penalty of 15 years for each conviction – starting point – identification of relevant considerations – sentence fixed for each offence – whether concurrent or cumulative – totality principle.

A 27 year old man was convicted on two counts of rape of a young woman. The offences were committed more than nine years prior to the time of the trial, when the offender was aged 17 and the victim 19. The offender threatened the victim with a bush-knife and pulled her into the bushes before sexually penetrating her without her consent, on two separate occasions, within a short space of time. There was no aggravated physical violence and the offender was not convicted of rape in circumstances of aggravation. This was the judgment on sentence.

Held:

(1)	The offender, having been convicted of two offences, must in the first instance be given a notional sentence for each offence.

(2)	For count 1, rape under Section 347(1) of the Criminal Code, the maximum sentence is 15 years imprisonment; and the starting point for sentencing purposes is 10 years imprisonment. A sentence of 6 years was imposed for count 1.

(3)	For count 2, rape under Section 347(1) of the Criminal Code, the circumstances of the offence and the mitigating and aggravating factors are practically the same as for count 1. A sentence of 6 years was imposed for count 2; making the total potential sentence 12 years imprisonment.

(4)	Applying the "one transaction rule", it is evident that both offences were committed in the course of a single transaction, and therefore sentences in respect of the offences will be concurrent; making the total actual head sentence 6 years imprisonment.

(5)	The pre-sentence period in custody of nine months was deducted. None 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
The State v Alex Matasol Hagali CR No 928 of 1997
The State v Alphonse Apou Dioro (2003) N2431
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 Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078 of 2004, 25.08.06
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

SENTENCE

This was a judgment on sentence for rape, after trial.

Counsel

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

1. CANNINGS J: This is a decision on the sentence for a man convicted after trial of two counts of rape committed against the same woman. The offences were committed at Matsungan Island, off Buka Island, Bougainville, in November 1996, more than nine years before the time of the trial, in August 2006. At the time of the offences the offender was aged 17 and the victim was aged 19. In the judgment on verdict I described the offender as being 19 at the time of the offence. 

2. Both counsel have said in the course of the sentencing hearing that he was, in fact, only 17. I do not think that was a material consideration in deciding that he was guilty of the offences; so it makes no difference to the verdict. However, it is a relevant factor for the purposes of sentencing and I emphasise that I am sentencing an offender who is now aged 27 and who was aged 17 at the time he committed the offences. The offender threatened the victim with a bush-knife and pulled her into the bushes before sexually penetrating her without her consent, on two separate occasions, within a short space of time. There was no aggravated physical violence and the offender was not convicted of rape in circumstances of aggravation. Further details of the circumstances in which the offences were committed are set out in the judgment on verdict (The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06).

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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 apologise to the victim for what I did to her. I was young when I committed these offences and I have not done anything bad since then and not caused any more trouble. Lastly, please have mercy on me and give me probation or a good behaviour bond.

PERSONAL PARTICULARS

5. The offender, Alex Matasol Hagali, is aged 27 and single. He is the sixth born in a family of 12. He has five brothers and six sisters. He is a member of the United Church. He was educated to grade 6, which he completed in 1994, two years before committing the offences. He has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the following mitigating factors: the offender has expressed remorse; he did not inflict any physical injury on the victim; the rape is not in the 'worst case' category; they were crimes of opportunity, not of design; he was the sole-offender; the victim was actually older than he and he was very young at the time and will live with the stigma of committing these crimes and pay for the folly of his youth for the rest of his life; he has not committed any more offences, suggesting that he has learned his lessons; the victim is now married, living in Buin, so life has moved on for her. Marriage is a signpost on the road to recovery for a rape victim, he submitted. Mr Kaluwin submitted that a sentence of four to six years would be appropriate for each offence; the sentences should be served concurrently; and the court should consider suspending the remaining part of the sentence due to the offender having already spent a long time in custody (nine months). 

SUBMISSIONS BY THE STATE

7. Mr Luman, for the State, conceded that the offender's young age at the time of commission of the offences is a mitigating factor, together with the fact that both the offender and the victim were teenagers. However, a serious aggravating factor is that there has been no reconciliation or genuine apology. The statements made in allocutus have come very late and the victim was not present in court to hear them. A sentence of six to ten years would be appropriate for each offence. Mr Luman conceded that concurrent sentences are appropriate. However, he disagreed with the idea of a suspended sentence as the victim now lives in Buin, at the opposite end of Bougainville to where the offender would reside. It would be impracticable for the court to monitor compliance with the conditions of a suspended sentence.

DECISION MAKING PROCESS

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

•	step 1: what is the maximum penalty for each offence?
•	step 2: what is a proper starting point for each offence?
•	step 3: what sentences have been imposed in other cases? 
•	step 4: what should the head sentence be for each offence?
•	step 5: should the sentences be served concurrently or cumulatively and does the totality principle alter the total head sentence? 
•	Step 6: should the pre-sentence period in custody be deducted from the term of imprisonment?
•	step 7: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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.

(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.

"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). 

10. Though there was evidence that the offender used a bush-knife to threaten the victim, no circumstances of aggravation were charged in the indictment. Therefore the maximum sentence that can be imposed for each offence is 15 years imprisonment (The State v James Yali (2006) N2989, National Court, Cannings J). 

STEP 2: WHAT IS A PROPER STARTING POINT?

11. In Yali's case I decided that the starting point for sentencing for rape without circumstances of aggravation is 10 years imprisonment. It is then a matter of weighing the mitigating and aggravating factors to arrive at a head sentence for each offence. 

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

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

TABLE 1: 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) N2419, 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) C749,
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) N3016,
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	
29	The State v Joe Sime 
CR No 1078 of 2004, 25.08.06, Cannings J	Offender pleaded guilty to rape of 16-year-old niece – threatened victim with small axe – circumstances of aggravation charged – conviction under Section 347(2).	10 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

Two sentences initially required

13. I will consider each offence separately and fix two head sentences, before considering whether they should be served concurrently. For each offence, 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 the starting point. Three sorts of considerations are listed. 

14. 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, Bredmeyer J, Los J, Hinchliffe J, 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. 

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

16. 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.

Count 1: the first rape offence

1	Is there only a small age difference between the offender and the complainant? Yes. There was only a two year gap. They were both young.

2	Is the complainant well over the age of 16 years and not an old person? Yes, the complainant (the victim) was aged 19. She was not a child and not an old person.

3	Was there only one offender? Yes.

4	Did the offender not use or threaten to use a weapon? No, he had a bush-knife.

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

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

7	Did the offender not abuse a position of trust, authority or dependency? Yes.

8	Was the offender not a member of the same family or clan as the victim? Yes. 

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

10	Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim? Yes. There was no evidence of transmission of any disease by the offender.

11	Was the offence unplanned, ie was it a spontaneous incident? Yes, I accept the defence counsel's submission that it was a crime of opportunity, not design.

12	Did the victim provoke or aggravate the offence? No.

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

14	Did the offender treat the victim with dignity immediately after committing the offence? No, he asked a bystander to also have sex with the victim. This aggravated the indignity and trauma of what had happened. 

15	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.

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

17	Did the offender cooperate with the police in their investigations? Yes. He made himself available for interview, though he denied raping the victim.

18	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.

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

20	Has the offender pleaded guilty? No. 

21	Has the offender genuinely expressed remorse? Neutral. I agree with Mr Luman that the offender seemed to be going through the motions when he said he was sorry and apologised to the victim.

22	Is this his first offence? Yes.

23	Can the offender be regarded as a youthful offender? Yes, I take this into account as a major mitigating factor. 

24	Will a lengthy gaol term have an adverse effect on the offender's family and others dependent on him? Neutral. No information is available to the court.

25	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's conduct before commission of the offences. 

26	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral. I fail to see the relevance of the victim having subsequently married, which was proposed as a mitigating factor by the defence counsel. It is reasonably to be expected that a rape victim who was single at the time of the offence, will carry the psychological scars of the ordeal for many years, irrespective of whether she subsequently re-marries.

17. To recap, mitigating factors are: 

•	No 1 – small age gap;
•	No 2 – victim not in the specially vulnerable category;
•	No 3 – offender acted alone;
•	No 5 – no torture;
•	No 6 – no confinement;
•	No 7 – no abuse of trust;
•	No 8 – victim not a member of offender's family;
•	No 9 – victim not a disabled person;
•	No 10 – no STD;
•	No 11 – unplanned offence;
•	No 13 – no perversions;
•	No 17 – co-operated with police;
•	No 19 – no further trouble;
•	No 22 – first offender;
•	No 23 – young offender.

18. Aggravating factors are:

•	No 4 – threatening weapon;
•	No 12 – no provocation;
•	No 14 – victim not treated with dignity;
•	No 15 – emotional impact on victim;
•	No 16 – did not give himself up;
•	No 18 – no reconciliation;
•	No 20 – did not plead guilty.

19. Neutral factors are:

•	No 21 – genuine remorse?
•	No 24 – effect on offender's family?
•	No 25 – good person before offences?
•	No 26 – other mitigating matters?

Head sentence for count 1

20. Weighing all these factors and bearing in mind that there are 15 mitigating factors compared to seven aggravating factors, and comparing this case with the others listed, I consider that the head sentence should be below the starting point of 10 years. I have given a lot of weight to factor Nos 1, 2 and 23 – the small age gap between the offender and the victim, her age and his age. He was only 17 at the time. 

I accordingly fix a head sentence of six years imprisonment.

Head sentence for count 2: second offence of rape

21. The prevailing circumstances are almost identical as for count 1, so I impose the same sentence: six years imprisonment.

Total potential sentence

6 years + 6 years = 12 years imprisonment.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY AND SHOULD THE TOTALITY PRINCIPLE ALTER THE SENTENCE? 
 
22. I summarised the principles to apply when deciding whether to make sentences cumulative or concurrent in The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919.

23. That is:

•	First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.

•	Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.

•	Thirdly, apply the "totality principle". When the court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

24. The one transaction rule applies in this case. The two offences were committed as part of the same chain of events. They were committed within the same passage of time and within the same geographical space. The two sentences are therefore to be served concurrently, subject to application of the totality principle. That is:

6 years (first rape) + 6 years (second rape) – 6 years (all of the second sentence being concurrent) = 6 years.

25. I now look at that total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is 'over the top' or manifestly excessive.

26. I consider that sentencing this young man to a period of six years imprisonment for something bad that he did a long time ago, when he was young, would not be crushing on him. I will not alter the total sentence, which will remain six years.

STEP 6: 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 these offences. 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	6 years	
Pre-sentence period to be deducted	9 months	
Resultant length of sentence to be served	5 years, 3 months	

STEP 7: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is a 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. There has been no real, effective apology and no moves towards reconciliation. To suspend the sentence would tend to diminish the seriousness of the crimes that Alex Matasol Hagali has committed. Current sentencing principles require that the offender serve his 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 seriousness of the crimes and the lack of any tangible reconciliation with the victim.

SENTENCE

29. Alex Matasol Hagali, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	9 months	
Resultant length of sentence to be served	5 years, 3 months	
Amount of sentence suspended	Nil 	
Time to be served in custody	5 years, 3 months	

Sentenced accordingly.
_________________________

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