N5053
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 683 OF 2006

THE STATE

V

ELIAS MAUTU

Kimbe: Cannings J
2007: 25 July, 10, 17, 24 August

CRIMINAL LAW – sentencing – attempted rape – sentence after trial – victim, a young woman – Criminal Code, Section 348 – sentence of 6 years.

A man was found guilty after a trial of attempted rape of a young woman in a village setting. He grabbed her from behind, forced her to the ground, got on top of her and inflicted severe blows to her neck and jaw before she screamed and her father came to the rescue.

Held:

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

(2)	Mitigating factors were: only one offender; no breach of trust; isolated incident; expressed remorse; first offender; youthful offender.

(3)	A sentence of six years was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Daniel Kemi Mebil v The State (2004) SC749
The State v John Muge CR No 1996 of 2002, 17.08.06
The State v Julius Ombi (No 2) (2004) N2552
The State v Kakou Pilai (2005) N2945
The State v Otom Masa (2000) N2021
The State v Otto Paulus (2002) N2241
The State v Pascal Maya Omi (2005) N2808

SENTENCE

This was a judgment on sentence for attempted rape.

Counsel

F Popeu, for the State
R Beli, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a young man convicted after trial of attempted rape of a young woman. The offender, Elias Matu, committed the offence at 6.00 pm on Sunday 15 May 2005 at Kilu village in the Talasea area of West New Britain. The victim was coming back from a creek, about 60 metres from her house, around 6.00 pm, wearing only a towel wrapped around her breast and waist. The offender came from behind, grabbed her by the neck, pulled her into a nearby vanilla plantation where he forced her to the ground and attempted to rape her. He got on top of her and inflicted severe blows to her neck and jaw before she screamed and her father came to her rescue.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender stated:

I apologise for what I have done. I apologise to the victim and her parents. This is the first time for me to be before the court. I have three blocks of oil palm and two blocks of coconut. I am single and live with my parents. I ask for probation so that I can go back to the village and reconcile in accordance with custom. If I am sent to jail there will still be problems between my relatives and the victim's relatives. That is why I want the chance to reconcile.

PRE-SENTENCE REPORT

4. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

ELIAS MAUTU: 21-year-old male.

Residence: lives in the village with his parents.
Family background: parents are from Kilu – both alive – he is the last born in a family of four.
Marital status: single.
Education: grade 6, Patanga Primary School.
Employment: never formally employed.
Health: OK.
Financial status: relies on income from his father's oil palm block.
Plans: start a liquor shop and chicken project.
Religion: Catholic.
Offender's family's attitude: both parents are supportive of their son – they have tried to make peace with and pay compensation to the victim's family but the victim's father does not want to accept compensation – the offender's parents do not want him to go to jail – they rely on him to help his father with the oil palm block and raise children in their extended family.
Victim's family's attitude: the victim herself as well as her family do not want compensation.
Attitude of community: some people think he is OK but generally the offender does not have a good reputation in the community – problems with alcohol – regarded by many as a troublemaker.
Recommendation: not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Beli highlighted the offender's prior good character and the fact that he is a first offender. His relatives have attempted to reconcile.

SUBMISSIONS BY THE STATE

6. Mr Popeu, for the State, submitted that a sentence of five to six years should be imposed, in light of the fact that some violence was used; the victim was spared only because she managed to scream.

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 from the term of imprisonment?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. 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.

9. 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?

10. 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 FOR EQUIVALENT OFFENCES?

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

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 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
	
7	The State v John Muge CR No 1996/2002, Cannings J;
Buka	Guilty plea – offender followed victim after a dance – caught up with her and was preparing to rape her when interrupted by boy who came to her rescue – no aggravated physical violence – real and substantial reconciliation in accordance with custom.	3 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. 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 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. Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the incident. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself. 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.

1	Was the attempted act not completed due to the offender's actions? No, the attempted act – rape – was not completed due to the victim's father who, fortunately, came to his daughter's rescue. This case is unlike Omi's case, where the offender realised, once the complainant repelled his advances, that it was not proper to continue and stopped himself.

2	Was there only one offender? Yes.

3	Did the offender not use a threatening weapon and not use aggravated physical violence? No. He inflicted severe blows to the victim's neck and jaw and she was taken to hospital.

4	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? No.

5	Was there no relationship of trust, dependency or authority between the offender and the victim? Yes.

6	Was it an isolated incident? Yes.

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

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

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? Neutral. Attempts at reconciliation have been unsuccessful.

10	Has the offender not caused further trouble to the victim or the victim's family since the incident? Neutral. There has been ongoing tension between the offender's relatives and the victim's relatives.

11	Has the offender pleaded guilty? No.

12	Has the offender genuinely expressed remorse? Yes.

13	Is this his first offence? Yes.

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

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

13. After weighing all these factors and bearing in mind that there are six mitigating factors and five aggravating factors, and comparing this case with the other sentences recently imposed for attempted rape, the head sentence should be around the starting point of seven years. I impose a head sentence of six years imprisonment.

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

14. 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 one month, one week.

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

15. The pre-sentence report is not overall a favourable one, so I will not suspend any part of the sentence.

SENTENCE

16. Elias Mautu, having been convicted of the crime of attempted rape, is sentenced as follows:

Length of sentence imposed	 6 years	
Pre-sentence period to be deducted	1 month, 1 week	
Resultant length of sentence to be served	5 years, 10 months, 3 weeks	
Amount of sentence suspended	Nil	
Time to be served in custody	5 years, 10 months, 3 weeks	

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