N3016

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1606 0F 2005

THE STATE

V

JEFFERY WANGI

KIMBE, BIALLA: CANNINGS J
13 FEBRUARY; 13, 15 MARCH 2006

SENTENCE

Criminal law – sentencing principles for rape – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after plea of guilty – distinction between rape simpliciter, Section 347(1), and rape in circumstances of aggravation, Section 347(2) – rape by 36-year-old man of 8-year old girl, his niece – circumstances of aggravation not pleaded in indictment – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment – starting point – identification of relevant considerations – sentence of 14 years.

The offender was convicted of the rape of his 8-year-old niece. He was aged 36. He acted alone. No weapons were used. There was a violation of trust. The offender did not surrender but cooperated with the police. No circumstances of aggravation were pleaded in the indictment. He pleaded guilty. 

Held:

(1)	This is an extremely serious case of rape under Section 347(1) of the Criminal Code.

(2)	As no circumstances of aggravation are charged in the indictment the maximum penalty to which the offender could be sentenced is 15 years imprisonment.

(3)	The court should use 10 years imprisonment as a starting point when sentencing under Section 347(1), then consider all mitigating and aggravating circumstances. (The State v James Yali (2006) N2989 applied.)

(4)	In the present case there are more strongly aggravating circumstances than strongly mitigating circumstances and it is proper to sentence the offender well above the starting point. 

(5)	This is a special case in which the offender should have been charged under Section 347(2) or Section 229A(2) of the Criminal Code. The Public Prosecutor’s failure to properly charge means that the maximum penalty to which the offender is subject is considerably less than it should have been. Therefore the extent of the benefit given on account of an early guilty plea is considerably reduced.

(6)	The offender is sentenced to 14 years imprisonment. 

Cases cited
The following cases are cited in the judgment:

The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989

Abbreviations:

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome
HIV – Human Immunodeficiency Virus
J – Justice
N – National Court judgment

SENTENCE

This was a judgment on sentence for rape.

Counsel:
F Popeu for the State
O Oiveka for the offender

CANNINGS J: 

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of rape.

BACKGROUND

Incident

The incident giving rise to the charge took place at Soi in the Bialla District of West New Britain in 2005.

Indictment

On 13 February 2006 the accused was brought before the National Court at Kimbe and faced the following indictment:

Jeffery Wangi of Alisu, Yangoru, East Sepik Province is charged that he on the 26th day of July 2005 at Soi in Papua New Guinea sexually penetrated [the complainant] without her consent.

The indictment was presented under Section 347(1) (the offence of rape) of the Criminal Code.

The victim of the incident is referred to in this judgment as "the complainant", consistent with Section 1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 26 July 2005 the accused was at Soi Oil Palm Settlement. He went into the bush to look for worms for fishing. He met the complainant there. She was eight years old at the time. She was with her six year old sister. They were in the garden. The accused told the complainant’s sister to go to the other side of the garden to look for worms while he remained with the complainant. As soon as she left he grabbed the complainant, removed her shorts, put her on the ground, then sexually penetrated her by introducing his penis into her vagina and ejaculating. He did all that without the complainant’s consent.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him. He is now referred to as the prisoner.

ANTECEDENTS

Mr Popeu for the State notified the court that the prisoner has no prior convictions. The pre-sentence report suggested that, in fact, he does have a prior conviction for a similar offence. However, that was not verified and I have disregarded that claim for sentencing purposes.

ALLOCUTUS

I administered the allocutus, ie the prisoner 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:

I have a block. I have a wife and seven children. I did not plan to do this thing. I had gone to the block to look for worms. By accident I fell into this temptation. I say sorry to the community and to the public and to the court. I ask for mercy and to be considered for probation. 

OTHER MATTERS OF FACT

I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything that has not been raised that may be favourable to the offender that is relevant to the sentence. I have done that as he has pleaded guilty. However, there is nothing favourable to him in the depositions.

RELEVANT LAW

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.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka submitted that as no circumstances of aggravation were pleaded in the indictment the maximum penalty was 15 years imprisonment. He highlighted that the offender pleaded guilty and he expressed remorse. Mr Oiveka conceded that the offender was the complainant’s uncle.

SUBMISSIONS BY THE STATE

Mr Popeu conceded that the maximum penalty was 15 years imprisonment. However, this was a serious case and the court must consider the prevalence of this offence and the need to provide a deterrent against this sort of violation of trust. There was a large age difference between the offender and the victim who was a mere eight years old. The sentence must reflect the seriousness of the offence. The court should impose a sentence in the range of 10 to 15 years. 

PRE-SENTENCE REPORT

To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

The offender is now aged 37 – left his village in East Sepik in 1990 to live in the Bialla District – has not been back since – was looking after an oil palm block at Soi but the owner sold it – his residence is now at Vilelo where he lives with relatives – he is married with seven children – not happily married.

He never went to school and has never been employed – was relying on income derived from sale of oil palm – but now that the block has been sold he has no source of income.

Claims to have had collarbone broken by police – his right hand is paralysed due to an accident while harvesting oil palm – does not drink alcohol or smoke anymore – health OK.

On release from custody, he plans to reconcile with the victim and pay compensation, including a pig.

The victim’s grandparents were interviewed – grandmother said that they had demanded K20,000.00 compensation but it had not been paid so the offender should go to gaol – grandfather alleged that the offender was guilty of two previous rapes [as indicated above, these allegations were not verified and have been disregarded for sentencing purposes].

The victim was interviewed – said she was in first grade at Soi Primary School when the incident happened.

The report concludes that the offender appears to have a behavioural problem and requires professional assistance. 

DECISION MAKING PROCESS

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 are the considerations that should be taken into account in determining the head sentence, in terms of years?

•	step 4: what is the head sentence?

•	step 5: should all or part of the sentence be suspended?

•	step 6: if all or part of the sentence is suspended, what conditions should be imposed?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

The current sentencing regime for rape distinguishes between:

•	rape under Section 347(1) (which could for the sake of convenience be called rape simpliciter) for which the maximum penalty is 15 years imprisonment; and 

•	rape in circumstances of aggravation under Section 347(2) (which could for the sake of convenience be called aggravated rape) for which the maximum penalty is life imprisonment.

In the present case the offender was not charged with any circumstances of aggravation. Such circumstances are prescribed by Section 349A. None were charged in the indictment. If circumstances of aggravation are to be taken into account for the purposes of increasing the maximum penalty above what it would otherwise be, they must be charged in the indictment and proven beyond reasonable doubt as an element of the offence. That is the approach I took in The State v James Yali (2006) N2989, which was consistent with the judgment of Lay J in The State v Dibol Petrus Kopal (2004) N2778. In that case the offender was convicted after a trial at Kundiawa of armed robbery and rape. No circumstances of aggravation were charged in connection with the count on the indictment dealing with rape. His Honour found that there clearly were circumstances of aggravation present (the offender committed the offences in the company of seven other men; they ambushed the rape victim and two male companions on a bush track; the offenders were armed with bush knives and a gun). However, as the circumstances of aggravation were not charged in the indictment they could not increase the maximum penalty, which remained at 15 years. His Honour then went on to say, nevertheless, that as the proven facts of the case disclosed circumstances of aggravation they could be taken into account for sentencing within the maximum of 15 years. He concluded:

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.

To sum up:

•	in the present case the maximum sentence for which the offender is liable is 15 years imprisonment;

•	ie, the sentencing range is zero to 15 years imprisonment;

•	in determining the head sentence within that range the court is entitled to take into account any circumstances of aggravation proven, including those prescribed by Section 349A, even though they were not charged in the indictment.

Fifteen years is the maximum penalty. However, 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?

In Yali’s case I reviewed the range of sentences being imposed for rape and other sexual offences and the sentencing trends that have emerged over the last ten or twenty years. Sentences for rape have increased. I applied a starting point for sentencing under Section 347(1) of 10 years imprisonment. I do likewise in the present case. 

STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS?

Having identified a starting point for the present case I will now identify the sort of things that should be taken into account when deciding to reduce or lift the sentence (up to the ceiling of 15 years). These are the considerations I set out in Yali’s case.

1	Is there only a small age difference between the offender and the complainant?

2	Is the complainant well over the age of 16 years and not an old person?

3	Was there only one offender?

4	Did the offender not use or threaten to use a weapon?

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

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

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

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

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

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

11	Was the offence unplanned, ie was it a spontaneous incident?

12	Did the victim provoke or aggravate the offence?

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

14	Did the offender treat the victim with dignity immediately after committing the offence?

15	Did the incident have a minimal emotional impact on the victim?

16	Did the offender give himself up after the incident?

17	Did the offender cooperate with the police in their investigations?

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?

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

20	Has the offender pleaded guilty?

21	Has the offender genuinely expressed remorse?

22	Is this his first offence?

23	Can the offender be regarded as a youthful offender?

24	Will a lengthy gaol term have an adverse effect on the offender’s family and others dependent on him?

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?

26	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. 

Numbers 1 to 15 focus on the circumstances of the incident. 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.

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

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.

STEP 4: WHAT IS THE HEAD SENTENCE? 

I apply the above considerations as follows:

1	No the age difference between the offender (aged 36 at the time) and the victim (aged 8) was substantial: 28 years. 

2	No the victim was aged only 8. She was a schoolgirl, doing grade 1. This is an extremely serious aggravating factor. 

3	Yes the offender acted alone.

4	Yes the offender did not use or threaten to use a weapon.

5	Yes the offender did not torture or cause grievous bodily harm to the victim. 

6	No the offender restrained the victim. He had no difficulty overpowering her. He was a grown man and she a small child. 

7	No the offender did abuse a position of trust, authority or dependency. He was her uncle. 

8	No the offender was a member of the same extended family as the victim. 

9	No the victim suffered from a serious physical or mental disadvantage, in that she was a small, and by definition, innocent and vulnerable child. 

10	Yes there is no suggestion that the offender was HIV positive or had AIDS or that he passed on any sexually transmitted disease to the victim. 

11	Yes the offence was unplanned and spontaneous. 

12	No the victim did not provoke or aggravate the offence. She was not able to as she was too young.

13	No the victim was not subject to further sexual indignities or perversions, in addition to the act of rape. 

14	No there is no evidence that the offender treated the victim with dignity after raping her. 

15	No the incident did not have a minimal emotional impact on the victim. There was no victim impact statement presented to the court. However, there did not need to be. It is reasonably to be inferred that a young schoolgirl, such as the victim in this case, would be emotionally scarred for a long time because of this sort of incident. Perhaps she is scarred for life.

16	No the offender did not give himself up after the incident.

17	Yes the offender cooperated with the police in their investigations. 

18	No the offender has not done anything tangible towards repairing his wrong. He has not paid compensation. Even if he had paid something it could not compensate for what he did.

19	Yes the offender has not caused further trouble to the victim and her family since the incident. 

20	Yes the offender pleaded guilty. For this he deserves credit. He has saved the victim, and her mother, from the trauma of having to relive the incident in court.

21	No the offender did not express significant remorse. He apologised rather blandly. He gave me the impression that he still does not appreciate the gravity of what he did. 

22	Yes, he will be treated as a first offender. 

23	No he was not a youthful offender. 

24	No it cannot be said that a lengthy gaol term will have an adverse effect on many people. The offender is a married man, with seven children dependent on him. However, to put it bluntly and rather sadly, they may be better off without him as it appears that he is the sort of person who cannot be trusted in the company of children, even his own.

25	No, there is no evidence that he was prior to the incident a model citizen. 

26	No I am unable to identify any other circumstances of the incident or the offender that warrant mitigation of the head sentence. In fact this is one of the worst type of rape cases imaginable. The offender is very lucky that he has been charged without any circumstances of aggravation. Clearly there were circumstances of aggravation present and he should have been charged under Section 347(2). 

Recap

I regard the following as strong mitigating factors:

•	No 17 – he cooperated with the police;

•	No 20 – he pleaded guilty. 

I regard the following as strong aggravating factors:

•	No 1 – big age gap between offender and victim;

•	No 2 – young age of the victim;

•	No 6 – overpowered the victim;

•	No 7 – abuse of trust and dependency;

•	No 8 – victim not raped by a stranger;

•	No 9 – victim was an innocent and vulnerable child;

•	No 12 – no provocation by victim;

•	No 14 – did not treat victim with dignity;

•	No 15 – very high degree of adverse emotional impact;

•	No 18 – nothing tangible done about repairing his wrong;

•	No 21 – no significant remorse.

The other factors are not significantly mitigating (Nos 3, 4, 5, 10, 11, 13, 19 and 22) or not significantly aggravating (Nos 16, 23, 24, 25 and 26). 

Head sentence

After weighing all these factors and bearing in mind that there are 11 strong aggravating factors compared to 2 strong mitigating factors, I consider that the head sentence should be lifted well above the starting point of 10 years. This was a special case in which the offender should have been charged under Section 347(2). The Public Prosecutor’s failure to properly charge meant that the maximum penalty to which the offender was subject was considerably less than it should have been. Therefore the extent of the benefit given on account of an early guilty plea was considerably reduced.

I accordingly fix a head sentence of 14 years imprisonment.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED? 

This is an extremely serious case of rape and it is not appropriate for the court to consider suspending any part of the sentence at this stage. One of the reasons that people are sent to gaol is to protect the community in the hope that when the offender is in gaol he can be rehabilitated. Jeffery Wangi has shown by this one terrible act that he cannot be trusted in the company of young girls. He must be regarded as a danger to the community. None of the sentence will be suspended.

Step 6 of the decision making process is unnecessary.

REMARKS

I reiterate that the offender, Jeffery Wangi, is very lucky that he has been charged with rape without circumstances of aggravation. 

If rape is committed in "circumstances of aggravation" the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life. "Circumstances of aggravation" are prescribed by Section 349A (interpretation), which states:

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).

In this case the circumstances pf aggravation were that the offender restrained the victim (para (d)); abused a position of trust (para (e)); and was a member of the same family (para (f)). Those circumstances should have been charged in the indictment.

Alternatively – and this seemed the most appropriate course of action – the Public Prosecutor could have presented an indictment under Section 229A of the Criminal Code (sexual penetration of a child), which states:

(1)	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2)	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3)	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Under Section 229A the penalty regime is:

•	if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but 

•	if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

In the present case the child was only 8 years old, well under the age of 12. There was also an existing relationship of trust. The offender should have been charged under Section 229A(2). For his crime he should have faced a maximum penalty of life imprisonment. He was not properly charged. Whether this came about as a result of a deliberate plea bargain, whether it represents a certain charging policy on the part of the Public Prosecutor or whether the indictment was drafted without attention to detail, I do not know. Whatever the case, it has resulted in a man who has committed a wicked crime against a small child being let off rather lightly. I recommend that the Public Prosecutor review the practices and policies of his office regarding the charging of these sort of offences.

Much has been aired in the media and other public forums in recent times about sexual offences and the need to protect young children in particular. Many people want the courts to impose stronger punishments. Some people have called for the death penalty to be introduced for rape or for castration or sterilisation of offenders. Such penalties do not exist, however, and that is another reason this offender can consider himself fortunate to have received the sentence I now deliver.

SENTENCE

The Court makes the following order:

1	Jeffery Wangi, having been convicted of the crime of rape, is sentenced to 14 years imprisonment in hard labour. 

2	For the avoidance of doubt there shall be deducted from the term of imprisonment the period in custody that the offender has already spent in relation to this matter.

Sentenced accordingly.
____________________________
Lawyer for the State			: 	Public Prosecutor
Lawyer for the accused		: 	Public Solicitor