N3414

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 484 OF 2008

THE STATE

V

NOEL KUKUPEU

Buka: Paliau, AJ
2008:	19th, 20th & 22nd May

CRIMINAL LAW – sentence – sexual penetration without consent – guilty plea – four years, ten months and twenty-six days – ss.19 of the Criminal Code.

Cases cited:
The State v. Julius Ombil (No.2), N2552
The State v. Michael Waluka Lala, CR 215 of 2006. 

Counsel:
Mr. Rangan, for the State
Mr. Kaluwin, for the Accused

22 May, 2008

DECISION ON SENTENCE

1. PALIAU, AJ	:	You pleaded guilty to the charge of Sexual Penetration of Jackline Kakama without her consent and Jackline Kakama at the time of sexual penetration was a child under the age of 16 years, on a date unknown in 2005 at Iula Village in Buin District in the Autonomous Region of Bougainville.

Antecedent Report

2. You have no prior convictions.

Allocutus

3. You said during allocutus that you are sorry to the Court. That you have already paid compensation of K500.00. You said you want to be placed on probation so that you can complete your education. You also said that you want to make peace and reconciliate with the family of the victim.

Pre-Sentence Report

4. I have not received a pre-sentence report from the Community Based Corrections Service.

Submission by the Defence Counsel

5. Mr Kaluwin submitted that both of your parents are still alive. You have 4 brothers and 3 sisters and the 3rd born son of the eight children. You are of catholic faith. You are educated to Grade 9 at Buin High School in 2007. You have already served 7 months 2 weeks 3 days in custody. You want to continue your education. 

6. The offence carries a maximum sentence of 15 years subject to the Court’s discretion under Section 19 of the Criminal Code. You are first time offender. You have apologized to the Court. No evidence of pregnancy and sexually transmitted disease. It is a one off incident, not repeated over a period of time.

7. Mr Kaluwin further submitted that there is no medical report for 2005 incident. No evidence of physical injury. Compensation of K500.00 paid. Accused was 18 years old in 2005 and victim was a young teenager of 13 going to 14. Mr Kaluwin referred me to two cases and they are The State v Julius Ombil (No. 2) N2552 where His Honour Kandakasi, J imposed a sentence of 9 years. The case was an attempted rape. The accused was convicted after trial. He showed no remorse, no admission and was a breach of trust placed upon him. The other case is The State v Michael Waluka Lala CR 215/2006 where the accused was charged with rape under Section 347 of the Criminal Code. The accused forced the victim with a weapon to suck his penis. He was sentenced to 4 years imprisonment. In the present case no weapon was used. He recommended that a sentence of 4 years to be fully suspended is appropriate in the circumstances of the present case.

Submission by the State

8. Mr Rangan for the State on the other hand submitted that one aggravating factor that the Court should consider is the age difference between the accused and the victim. The accused was 19 years old and the victim was between 13 and 15 years old at the time of incident in 2005.

9. That it is rare in rape cases for a sentence to be suspended. A term of imprisonment in custody is most appropriate.

10. In relation to compensation paid of K500.00, the Village Court has no jurisdiction to hear rape cases thus it did not have the power. Only the National Court has the jurisdiction and to impose penalties.

11. In relation to the accused furthering his education, he submitted that he can do this by enrolling at the College of Distance Education whilst in custody.

Decision as to the appropriate penalty 

12. To determine the appropriate penalty, I will adopt the following decision making process and they are:

Step 1:	What is the maximum penalty?	
Step 2:	What is the proper starting point?	
Step 3:	What should be the head sentence?	
Step 4:	Should the pre-sentence periods in custody be deducted from the term of imprisonment?	
Step 5:	Should all or part of the sentence be suspended?	

STEP 1:	WHAT IS THE MAXIMUM PENALTY?

13. Sections 347 of the Criminal Code which is the Section that the accused is charged with carry a maximum penalty of 15 years.

STEP 2:	WHAT IS THE PROPER STARTING POINT?

14. The incidences of sexual penetration of girls and women folks are on the increase and higher punishments have been imposed by the Courts. This however does not seem to have any impact on the behaviours of our men folks.

15. Perhaps the Courts may have to look seriously as to whether to recommend to the Parliament to impose higher penalties or let the prisoners go back to the community on suspended sentences to make right the wrong that they have committed to the members of the community.

16. Having said the above, in the case before me, counsels have recommended in particular custodial sentences but Mr Kaluwin for the accused submitted the sentence should be suspended with conditions.

17. The two cases that I was referred to may be used as starting point, the range of punishment between 4 years to 9 years. Of course this would depend on the circumstances of each case.

18. I consider the proper starting point to be 7 years.

STEP 3: WHAT SHOULD BE THE HEAD SENTENCE?

19. As the starting point is 7 years, I will start from there and weigh the mitigating factors and the aggravating factors. If the mitigating factors are more, the head sentence will be below the starting point. If the aggravating factors are more, the head sentence will be above the starting point.

Mitigating Factors

-	You are first time offender
-	You have expressed remorse
-	You have co-operated with Police
-	Your earlier plea of guilty has saved the Court’s time and money
-	The victim did not become pregnant
-	No transmission of sexually transmitted disease to the victim
-	You have paid compensation of K500.00

Aggravating Factors

-	The age difference between you and the victim is great
-	You have paid compensation but no peace and reconciliation was organised between your relatives and the victim’s relatives.

Determination 

20. After weighing the mitigating and aggravating factors, the mitigating factors outweigh the aggravating factors by 5 factors. The head sentence should be below the starting point. I therefore impose a head sentence of 5 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. I am required under Section 3 (2) of the Criminal Justices (Sentences) Act that the whole pre-sentence periods in custody should be deducted from the head sentence which is 7 months 2 weeks 5 days. I impose a term of imprisonment of 4 years 10 months 26 days.

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

22. Because I have not received a pre-sentence report which indicates whether the accused is low risks or high risks and because I have taken into consideration the mitigating factors when determining the head sentence, I will not suspend all or any part of the sentence.

Sentence

23. NOEL KUKUPEU, having been convicted of the crime of rape, you are sentenced to:

Length of sentence imposed	-	5 years
Pre-sentence period deducted	-	7 months 2 weeks 5 days
Resultant length of sentence to be served	-	4 years 10 months 26 days
Amount of sentence suspended	-	Nil
Time to be served in custody	-	4 years 10 months 26 days

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused