N5037
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1928 0F 2005

THE STATE

V

WILLIAM TOKON

Kimbe: Cannings J
2007: 4, 7, 11 December

CRIMINAL LAW – sentence – rape – Section 347(1) Criminal Code –guilty plea – circumstances of aggravation apparent in the facts to which the accused pleaded guilty, but not charged in the indictment – sentence of 8 years

A man pleaded guilty to one count of rape. The victim had already been pack-raped the day before the offence was committed. The offender and three other men found where she was sleeping, woke her up, led her away, then forcefully had sexual intercourse with her, without her consent.

Held:

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

(2)	Mitigating factors are: small age gap; no offensive weapon; no torture; no confinement; no abuse of trust; not a vulnerable victim; no STD; co-operated with police; no further trouble; pleaded guilty; youthful offender.

(3)	A sentence of 8 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:

Saperus Yalibakut v The State (2006) SC890
The State v Alex Matasol Hagali CR No 928/1997, 29.09.06
The State v Douglas Jogioba CR No 1765/2005, 26.10.07
The State v George Tomeme CR No 920/2002, 24.08.07
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, 26.10.07
The State v Noutim Mausen (No 2) 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

C Sambua, for the State
O Oiveka, for the offender

11th December, 2007 

1. CANNINGS J: This is a decision on sentence for a 23-year-old man, William Tokon, who pleaded guilty to one count of rape arising from the following facts. On the night of Saturday 10 August 2002, the victim, a young woman, "D", was abducted by four armed men at the residence behind the Webber workshop in the suburb of Section 10, Kimbe. She was pack-raped by those men. William Tokon was not amongst the group of men who did that. But the next day, news of the abduction and rape reached him and three of his male friends. They heard that the victim was at a bush house in the hills behind Kimbe Primary School and went to that house. They found her there asleep, woke her up, led her away towards the suburb of Section 11, then the four of them forcefully had sexual intercourse with her without her consent.

ANTECEDENTS

2. The offender has one prior conviction: a break, enter and steal offence for which the Kimbe District Court sentenced him to three years imprisonment in 1999.

ALLOCUTUS

3. The offender said:

I did not know that I was going to get into this trouble. It was not planned. I only went up to wash in the river when I met the others involved. I took the lady away and now I am before the court. I have recently married.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He cooperated with the police and made admissions in his police interview. There is no evidence on the file of aggravated physical violence or use of weapons to threaten the victim.

PRE-SENTENCE REPORT

5. William Tokon is now 23 years old, married with one child, aged 14 months. His family comes from Apungi village in the Kandrian area of WNB Province. He was living with his mother at Section 10, Kimbe, when he committed the offence. Then he returned to the village, which is where he was living when re-arrested this year. His mother is still at Section 10, while his father died several years ago. His mother, wife and elder sister (his only sibling) are supportive of him. He belongs to the SDA Church, having recently converted from Catholicism. He is educated to grade 6 and has never been wage employed. His health is OK, despite suffering serious knife wounds during a fight at Kandrian earlier this year. When he gets out of jail he wants to return to the village. He has not reconciled with the victim. He has not apologised or paid any compensation. In fact, she does not want compensation. She just wants to see him punished. There is no evidence of community support being available for the offender if he is given a non-custodial sentence. The report does not contain a strong recommendation for probation.

SUBMISSIONS BY THE DEFENCE

6. Mr Oiveka highlighted the guilty plea, which is significant in this case as he has saved the victim the trauma and embarrassment of giving evidence in court, and the early admissions to the police. Also, the offender was only 18 years old at the time of the offence. As no circumstances of aggravation were charged in the indictment, the maximum sentence is 15 years imprisonment.

SUBMISSIONS BY THE STATE

7. Mr Sambua conceded that the maximum is 15 years. A sentence in the range of 10 to 15 years would be appropriate, he submitted.

DECISION MAKING PROCESS

8. 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 is the head sentence?
•	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?

9. 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.

10. 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?

11. 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.

12. 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?

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

RAPE SENTENCES, 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	
9	The State v Noah Mamari CR No 582/2007, 26.10.07, Buka	Trial – 19-year-old offender, 16-year-old victim – offence committed at 4.00 am after a party near their village, when victim was walking home with a friend – offender pulled her into the bush, sexually penetrated her against her will – conviction under Section 347(1).	6 years	
10	The State v Douglas Jogioba CR No 1765/2005, 26.10.07, Buka	Trial – schoolteacher raped 16-year-old student on school premises – two counts: first, digital penetration of vagina; second, penile penetration of vagina – victim young and naive and offender abused position of trust and authority to induce consent – conviction under Section 347(2).	10 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

14. 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. 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 – the offender was aged 18 and the victim, 23, a difference of five years.

2	Is the victim well over the age of 16 years and not an old person? Yes.

3	Was there only one offender? No.

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? No, she was pack-raped.

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? Yes.

21	Has the offender genuinely expressed remorse? Neutral. He did not apologise to the victim.

22	Is this his first offence? No.

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.

15. Weighing all these factors (12 mitigating factors compared to 7 aggravating factors), I consider that the head sentence should be below the starting point. I fix a head sentence of eight years imprisonment. The offender has benefited greatly from his guilty plea.

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

16. 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 six months.

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

17. No. The court has not been informed of any moves towards compensation or reconciliation. The pre-sentence report does not warrant suspension of any part of the sentence.

SENTENCE

18. William Tokon, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	8 years	
Pre-sentence period to be deducted	6 months	
Resultant length of sentence to be served	7 years, 6 months	
Amount of sentence suspended	Nil	
Time to be served in custody	7 years, 6 months	

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