N4974
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 582 OF 2007

THE STATE

V

NOAH MAMARI

Buka: Cannings J
2007: 24, 26 October

CRIMINAL LAW – sentencing – rape – sentence after trial – no circumstances of aggravation charged – young offender – Criminal Code, Section 347(1) – sentence of 6 years.

A young man, 19 years old at the time of the offence, was found guilty after trial of the rape of a 16-year-old girl. The offence was committed at 4.00 am on New Years Day after a party near their village, when the victim was walking home with a friend. The offender pulled her into the bush and sexually penetrated her against her will.

Held:

(1)	The starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.

(2)	A sentence of 6 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928/1997
The State v George Tomeme CR No 920/2002, 18.07.07
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05
The State v Noah Mamari CR No 582/2007, 24.10.07
The State v Noutim Mausen CR No 596 of 2004, 24.08.05
The State v Philip Nangoe CR No 392/2006, 24.10.07

SENTENCE

This was a judgment on sentence for rape.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

26 October, 2007 

1. CANNINGS J: This is a decision on sentence for a 20-year-old man convicted after trial of the rape of a 16-year-old girl. The offender, Noah Mamari, committed the offence at 4.00 am on 1 January 2007. He saw the victim at a New Year's Eve party, then waited in the bush besides a road leading to her home near their village, Tanahu. The victim walked along the road with her cousin-sister, heading home. As they walked past the place where the offender was hiding, he grabbed the victim's hand, covered her mouth and pulled her into the bush. He pushed his hand, then his penis, into her vagina. She was hurting and he covered her mouth with a hand and she could not shout. The episode was over fairly quickly. The offender inflicted no aggravated violence. The victim shouted for help and her cousin-brother, Ronald, came to her assistance and she told him that Noah had just raped her. Further details of the offence are in the written judgment on verdict in The State v Noah Mamari CR No 582/2007, 24.10.07.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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:

This is my first time to come before the National Court. I want to say sorry for the trouble I have committed. Please have mercy on me and give me a good behaviour bond. I will not get into this sort of trouble again.

PERSONAL PARTICULARS

4. Noah Mamari is now 20 years old. He comes from the Haku area. Both parents are alive. He is the sixth born in a family of seven. He is Catholic, educated to grade 8 and has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Kaluwin highlighted the fact that the offender was guilty of no aggravated violence. He was very young when he committed the offence and is still a very young man. A sentence of five years would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Rangan highlighted the very young age of the victim. She was only 16 and this bad experience is likely to adversely affect her for many years. A sentence of ten years imprisonment is warranted.

DECISION MAKING PROCESS

7. 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 for equivalent offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

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

(1)	A person who sexually penetrates a person without [her or] 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.

9. No circumstances of aggravation were charged in the indictment. Therefore the maximum penalty is 15 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?

10. In The State v James Yali (2005) N2989 I expressed the view that the starting points when sentencing for rape should be:

•	if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and
•	if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.

11. I follow that approach in this case and use 10 years imprisonment as a starting point.

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

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

TABLE 1: RAPE SENTENCES IMPOSED BY CANNINGS J, 2005-2007

No	Case	Details	Sentence	
1	The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05, Kimbe	Guilty plea – rape constituted by forcing the victim to suck his penis – no aggravated violence – no prior convictions – remorse – conviction under Section 347(1).	4 years	
2	The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05, Kimbe	Trial – offender, 20-years-old, convicted of rape of middle-aged woman – threatened to use bush knife – conviction under Section 347(1).	10 years	
3	The State v James Yali (2006) N2989, Madang	Trial – offender raped 17-year-old sister of his de facto wife – conviction under Section 347(1).	12 years	
4	The State v Jeffery Wangi (2006) N3016, Bialla	Guilty plea – victim an 8-year-old girl – no circumstances of aggravation charged in indictment – conviction under Section 347(1).	14 years	
5	The State v Joe Sime CR No 1078/2004, 25.08.06, Buka	Guilty plea – offender raped his niece, aged 16 – threatened her with a small axe – genuine remorse – strong mitigating factor was the conditions of detention at Buka police lock-up – conviction under Section 347(2).	10 years	
6	The State v Alex Matasol Hagali
CR No 928/1997, 29.09.06, Buka	Trial – offender threatened victim with bush-knife – two offences committed within short period – no aggravated physical violence – offender aged 17 at time of offence; victim aged 19 – two convictions under Section 347(1) – concurrent sentences.	6 years	
7	The State v George Tomeme CR No 920/2002, 24.08.07, Kimbe	Trial – shortly before meeting the offender the victim, a young woman, had been raped by six other men – offender led her away on the pretext that he was saving her, then proceeded to rape her himself – conviction under Section 347(1).	12 years	
8	The State v Philip Nangoe CR No 392/2006, 24.10.07, Buka	Trial – middle-aged man raped a young mentally retarded woman – she had walked past the offender and his friend in the early hours of the morning, on a public road – offender went after her and proceeded to rape her – conviction under Section 347(2).	15 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

13. 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. 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 list is based on the considerations I identified in Yali's case. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at 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. Three sorts of considerations are listed. Numbers 1 to 15 focus on the circumstances of the incident. 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.

1	Is there only a small age difference between the offender and the victim? Yes – only three years.

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

3	Was there only one offender? Yes.

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

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 form of penetration other than penile penetration? No.

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.

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

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? Neutral.

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

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

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

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. He did not apologise to the victim.

22	Is this his first offence? Yes.

23	Can the offender be regarded as a youthful offender? Yes.

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

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.

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

14. To recap, mitigating factors are:

•	No 1 – small age gap;
•	No 3 – offender acted alone;
•	No 4 – no offensive weapon;
•	No 5 – no torture;
•	No 6 – no confinement;
•	No 7 – no abuse of trust;
•	No 9 – not a vulnerable victim;
•	No 10 – no STD;
•	No 13 – no other indignity;
•	No 17 – co-operated with police;
•	No 19 – no further trouble;
•	No 22 – first-time offender;
•	No 23 – youthful offender.

15. Aggravating factors are:

•	No 2 – youthful victim;
•	No 8 – penile penetration;
•	No 12 – no provocation;
•	No 16 – did not give himself up;
•	No 18 – no reconciliation;
•	No 20 – took the matter to trial.

16. The other factors (Nos 11, 14, 15, 21, 24, 25 and 26) are neutral. Weighing all these factors (13 mitigating factors compared to 6 aggravating factors), I consider that the head sentence should be below the starting point I earlier identified. This case can be closely compared with Hagali's case (both young offenders and young victims). I fix a head sentence of six years imprisonment.

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

17. Yes. 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, which is ten months.

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

18. No. The court has not been informed of any moves towards compensation or reconciliation. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

19. Noah Mamari, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	10 months	
Resultant length of sentence to be served	5 years, 2 months	
Amount of sentence suspended	Nil	
Time to be served in custody	5 years, 2 months	

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender