N4476

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1996 0F 2002

THE STATE

V

JOHN ERIP MUGE

Buka: Cannings J
2006: 11, 14, 17 August

SENTENCE

CRIMINAL LAW – sentences – Criminal Code, Division V.7, Sexual Offences and Abduction – Section 348, attempt to commit rape – sentence on plea of guilty – 3 years.

A man pleaded guilty to attempted rape of a woman. At the time of the offence both the offender and the victim were aged 20 years. He followed her home along a bush track after they had both attended a dance at a neighbouring village. He caught up with her, carried her into the bush, took off her clothes and was preparing to rape her when he was interrupted by a young boy who came to her rescue. There was no aggravated physical violence. The offender and his family recently reconciled with the victim and her family.

Held:

(1)	The starting point for sentencing for attempted rape is seven years imprisonment. 

(2)	Mitigating factors were: only one offender; no weapons used; no physical injury; no breach of trust; isolated incident; high degree of co-operation with the police; compensation paid and reconciliation effected; no further trouble; pleaded guilty; expressed remorse; first offender; young offender; apology and rehabilitation.

(3)	A strong aggravating factor was that it appeared that the only reason rape did not take place was that the offender was interrupted by a young boy who came to the rescue of the victim. 

(4)	A sentence of three years was imposed. As the offender has already spent time in custody and there has been a recent reconciliation the balance of the sentence was suspended, subject to conditions including that the offender perform supervised community and church work and that regular probation reports be filed in the National Court. 

Cases cited

The following cases are cited in the judgment:

Daniel Kemi Mebil v The State (2004) SC749
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aaron Lahu (2005) N2798
The State v Julius Ombi (No 2) (2004) N2552
The State v Kakou Pilai (2005) N2945
The State v Mark Kanupio and Others (2005) N2800
The State v Otom Masa (2000) N2021
The State v Otto Paulus (2002) N2241
The State v Pascal Maya Omi (2005) N2808
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgments
No – number
SC – Supreme Court Judgment
SCRA – Supreme Court Criminal Appeal
v – versus

PLEA

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

Counsel

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

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to attempted rape. He faces the following indictment:

John Erip Muge of Tangari, Selau, Autonomous Region of Bougainville, stands charged that he on the 6th day of April 2002 at Selau … attempted to commit rape upon [the complainant].

2. The indictment was presented under Section 348 of the Criminal Code.

ALLEGATIONS

3. The incident happened at 7.00 am on 6 April 2002. The complainant, a young woman, was returning home to Pipinapena village after attending a social function the previous night at a neighbouring village. She was accompanied by a female friend. 

4. The accused was following behind them, on the same bush track. He caught up with the complainant, grabbed her, carried her into the nearby bush and removed her clothes. 

5. He was trying to remove his own clothes when he was disturbed by a young boy. Then he fled the scene, without having sexually penetrated the complainant.

CONVICTION

6. 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 the accused. He is now referred to as the offender.

ANTECEDENTS

7. The offender has no prior convictions.

ALLOCUTUS

8. 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:

I say sorry to the court for the trouble I have caused. This incident has brought shame to me and my family. Since the day of the incident, up until now, I realise that what I did was wrong and I again apologise for what I have done. I ask for mercy and a suspended sentence.

OTHER MATTERS OF FACT

9. As the offender has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

Principles

10. In two cases last year I set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of facts.

•	In The State v Mark Kanupio and Others (2005) N2800, five men pleaded guilty to manslaughter committed near Kandrian, West New Britain. They each said in their police interviews that they attacked the deceased as they thought he had a gun and was about to fire at them. That case dealt with issues arising from the depositions. I accepted what they said at face value as it was not contested by the prosecution and considered it as a mitigating factor for sentencing purposes.

•	In The State v Aaron Lahu (2005) N2798, a man pleaded guilty to armed robbery of the main store at Hoskins, West New Britain, but said in his allocutus that he only got involved by accident as he thought he was going fishing with his friends; he did not realise that the boat in which he travelled to Hoskins with his friends had weapons in it – he thought they had fishing tackle; and he did not enter the store when the gang charged in. That case dealt with issues arising from the allocutus. Though the story told by the offender seemed far-fetched the prosecution did not take issue with it and I considered it as a mitigating factor for sentencing purposes.

11. Those principles were recently endorsed by the Supreme Court (Jalina J, Mogish J, Cannings J) in Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06. The rationale is that giving the benefit of the doubt provides an incentive for an accused person 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.
12. The principles are:

1	The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

2	Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

3	If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor’s summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.

4	If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.

5	If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.

1	If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.6	

7	To those principles I would add another related one, which is applicable to the present case: if the defence counsel draws the Judge’s attention to a mitigating matter not in the depositions or allocutus, or the Judge himself has knowledge of something that may be mitigating, it can be taken into account subject to the provisos set out above.

13. I will now apply the above principles to the present case.

Depositions

•	The offender apologised to the complainant immediately after the incident as he realised that he had done the wrong thing.

•	He made admissions to the police and co-operated fully.

Allocutus

•	He has expressed genuine remorse.

Matters disclosed by defence counsel

•	The offender and the complainant participated in a reconciliation ceremony on 2 August 2006 at Tangari village. The reconciliation was between the offender’s family and the complainant’s family and was witnessed by a Village Court magistrate and deputy chairman of a council of elders. The offender volunteered to pay K650.00 to the complainant and offered an open apology, which was accepted by the complainant. A written record of the ceremony was tendered in court.

•	The offender is an active member of Tangari Youth Group, which plans to embark on an outreach program aimed at assisting community members to renew their faith and return to practising it, in order to curb anti-social behaviour prevalent in the local communities.

PERSONAL PARTICULARS

14. The offender is aged 24 and single. He was aged 20 at the time of the offence. Both parents are deceased. He is the last born in a family of ten. He attended Tarlena High School and completed grade 8 in 2000. He has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

15. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; the victim suffered no permanent physical injuries; it was a crime of opportunity – it was not premeditated; reconciliation has taken place and the offender has rehabilitated himself. The facts were not in the worst case category.

SUBMISSIONS BY THE STATE

16. Mr Luman, for the State, conceded that this was not a ‘worst case’ but submitted that it was nonetheless a serious case of attempted rape. He contended that the sentence should be in the range of five to eight years.

DECISION MAKING PROCESS

17. 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 other sentences have been imposed recently for equivalent offences?

•	step 4: what considerations should be taken into account in determining the head sentence, in terms of years?

•	step 5: what is the 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?

18. The indictment was presented under Section 348 (attempt to commit rape) of the Criminal Code, which states:

A person who attempts to commit the crime of rape is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

19. The maximum penalty is therefore 14 years 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?

20. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

21. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of seven years as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

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

TABLE 1: RECENT SENTENCES FOR ATTEMPTED RAPE

No	Case	Details	Sentence	
1	The State v 
Otom Masa 
(2000) N2021
Kandakasi J;
Lae	Guilty plea – offender 20 years old – victim a three year old girl – breach of trust (offender was an uncle of the victim) – first offender.	6 years 
	
2	The State v 
Otto Paulus (2002) N2241
Kandakasi J;
Wewak 	Guilty plea – offender aged 23 – victim a married woman, aged 21 – breach of de facto trust – threats and actual physical violence (victim suffered knife wound to head, requiring four stitches) – no compensation or reconciliation.	9 years 
	
3	Daniel Kemi Mebil
v The State
(2004) SC749
Injia DCJ, Kirriwom J, Gavara-Nanu J;
Waigani	Appeal – against sentence of 7 years, dismissed – guilty plea – offender aged 24 – victim younger than offender – persistent and strong force used during assault – offender armed with bushknife – disturbed by friends of victim who came to her rescue.	7 years 
	
4	The State v 
Julius Ombi (No 2)
(2004) N2552
Kandakasi J;
Popondetta	Trial – offender aged 17 – victim younger than offender – breach of trust – (victim was a close relative of the offender) – no physical violence – no compensation or reconciliation.	9 years 
	
5	The State v 
Pascal Maya Omi
(2005) N2808
Cannings J;
Buka	Guilty plea – offender aged 19 – victim aged 17 – no weapons or aggravated physical violence – offender stopped his attempted actions once victim repelled his advances – attempted an immediate apology – compensation paid.	1 year 
	
6	The State v 
Kakou Pilai
(2005) N2945
Lay J;
Lorengau	Guilty plea – offender aged 23 – victim aged 21 – bushknife used to threaten violence – offender disturbed by villagers – victim suffered no physical injury – no apology.	2 years

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS TO TAKE INTO ACCOUNT IN DETERMINING THE HEAD SENTENCE?

23. I regard the following as considerations to take into account in deciding whether the sentence should be above or below the starting point:

1	Was the attempted act not completed due to the offender’s actions?

2	Was there only one offender?

3	Did the offender not use a threatening weapon and not use aggravated physical violence?

4	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

5	Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such a relationship, was it a distant one?

6	Was it an isolated incident?

7	Did the offender give himself up after the incident?

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

9	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony or personally or publicly apologising for what he did?

10	Has the offender not caused further trouble to the victim or the victim’s family since the incident?

11	Has the offender pleaded guilty?

12	Has the offender genuinely expressed remorse?

13	Is this his first offence?

14	Can the offender be regarded as a youthful offender?

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

Rationale

24. 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 at or near the starting point.
25. 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.

26. Three sorts of considerations are listed.

27. Numbers 1 to 6 focus on the circumstances of the incident.

28. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself.

29. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 5: WHAT IS THE HEAD SENTENCE?

30. I apply the above considerations as follows:

1	No the attempted act – rape – was not completed due to the offender’s own actions. The reason he did not actually rape the complainant is that he was disturbed by someone who, fortunately, came to the complainant’s rescue. This case is unlike Pascal Maya Omi’s case, where the offender realised, once the complainant repelled his advances, that it was not proper to continue and stopped himself.

1	Yes there was only one offender.2	

3	Yes the offender did not use a threatening weapon and did not use aggravated physical violence.

4	Yes he did not cause physical injury and did not pass on a sexually transmitted disease to the victim.

5	Yes, there was no existing relationship of trust.

6	Yes it was an isolated incident.

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

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

9	Yes he has done something tangible towards repairing his wrong by paying compensation to the complainant and participating in a reconciliation ceremony.

10	Yes he has not caused further trouble to the victim or the victim’s family since the incident.

11	Yes the offender pleaded guilty.

12	Yes the offender genuinely expressed remorse.

13	Yes this is his first offence.

1	Yes he can be regarded as a young offender. He was only 20 at the time of the offence.14	
15	Yes the other factors I take into account are that he apologised soon after the incident and he is an active member of a church youth group and is intent on preventing this sort of anti-social behaviour in his local community. Everything he has done since the incident happened, starting with his immediate attempt to apologise and continuing with his compensation gesture, is consistent with someone trying genuinely to make up for doing a bad thing.

Recap

31. I regard the following as mitigating factors:

•	No 2 – only one offender;
•	No 3 – no weapons used;
•	No 4 – no physical injury;
•	No 5 – no breach of trust;
•	No 6 – isolated incident;
•	No 8 – high degree of co-operation with the police;
•	No 9 – compensation and reconciliation – this is a very strong mitigating factor;
•	No 10 – no further trouble;
•	No 11 – pleaded guilty;
•	No 12 – expressed remorse;
•	No 13 – first offender;
•	No 14 – young offender;
•	No 15 – apology and rehabilitation.

32. I regard the following as aggravating factors:

•	No 1 – the reason the rape was not committed was the intervention of another person – this is a very strong aggravating factor; 
•	No 7 – did not give himself up.

33. After weighing all these factors and bearing in mind that there are 13 mitigating factors compared to two aggravating factors, and comparing this case with the other sentences recently imposed for attempted rape, the head sentence should be below the starting point of seven years.

34. I impose a head sentence of three years imprisonment.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

35. The offender has spent five months and five days remanded in custody, in connexion with the offence of which he has been convicted.

36. I now have to consider whether that period should be deducted from the term of imprisonment. Normally a court will make that deduction but it is not automatic. It is done at the discretion of the court under Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986.

37. Section 3 (length of sentences) states:

(1)	A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(2)	There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

38. Section 4 (person imposing sentence to specify length of sentence, etc) states:

At the time of imposing a sentence in any court in the National Judicial System, the judicial officer imposing the sentence shall specify—

(a)	the length of the sentence imposed; and

(b)	the length of any period to be deducted from the sentence under Section 3(2); and

(c)	the resultant length of the sentence to be served.

39. It is fair that the offender obtain the benefit of the time he has spent in custody. He has not escaped or done anything that would otherwise justify not allowing a deduction.

40. I therefore 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. 

41. I specify under Section 4 of that Act the periods set out in table 2.

TABLE 2: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	5 months, 5 days 	
Resultant length of sentence to be served	2 years, 6 months, 3 weeks, 2 days	

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

42. This is an appropriate case in which to consider a suspended sentence in view of the reconciliation and compensation that has recently taken place. However, strict conditions must be imposed. 

43. There is a risk in immediately suspending the sentence that the offender might too quickly forget the gravity of what he has done. This was a crime of violence, the outcome of which could have been much worse had it not been for the intervention of a third party who came to the rescue of the young woman who was the victim. This could have been a very bad rape. 

44. The offender must not be allowed to forget that he is still under sentence – even when he is serving the sentence outside jail. The message must sink in, that what he did was a terrible violation of another person’s privacy and dignity.

45. The rest of the sentence will be suspended on the following conditions:

1	must reside at Tangari village and nowhere else except with the written approval of the National Court;

2	must not leave Bougainville without the written approval of the National Court;

3	must perform at least eight hours unpaid community work each week at Tangari village under the supervision of Michael Tsora;

4	must attend Tangari Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of Martin Nahen;

5	must report to the senior Correctional Service officer at Buka Police Station every government pay week between 9.00 am and 3.00 pm and sign the register;

6	must not consume alcohol or drugs;

7	must keep the peace and be of good behaviour;

8	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;

9	the person responsible for filing the probation report will be the ARB senior welfare officer;

10	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. 

46. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

REMARKS

47. The offender made the right decision in pleading guilty. If the matter had gone to trial and he had been convicted he would have received a much higher sentence. The evidence on file suggests that the incident was actually much worse than what he has pleaded guilty to. It is suggested that, in fact, he was assisted by two other young men. They are lucky not to be before the court too. It is suggested that he did inflict sexual indignity on the victim before he was disturbed. The victim was left lying naked in the bush, sobbing. It was clearly a traumatic and shocking ordeal for her. 

48. By pleading guilty, apologising, and reconciling with the victim, he has been given the benefit of the doubt on many aspects of this case. He appears to have saved himself a long stretch in jail.

SENTENCE

49. John Erip Muge, having been convicted of the crime of attempted rape, is sentenced as follows:

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	5 months, 5 days 	
Resultant length of sentence to be served	2 years, 6 months, 3 weeks, 2 days	
Amount of sentence suspended	2 years, 6 months, 3 weeks, 2 days; subject to conditions prescribed herein.	

Sentenced accordingly.
_____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused