N3947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 135 0F 2008

THE STATE

V

JOE TALIVA

Madang: Cannings J
2008: 18, 22 February

SENTENCE

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 10 years.

A young man pleaded guilty to one count of rape. The offence was planned and the victim was seven months pregnant. Circumstances of aggravation were not charged in the indictment so the maximum sentence was 15 years imprisonment.

Held:

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

(2)	The guilty plea is the main mitigating factor.

(3)	There were some major aggravating factors, including that the offence was planned, the victim was seven months pregnant and another male raped her after the offender raped her.

(4)	A sentence of 10 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 SCRA No 52 of 2005, 27.04.06
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

M Ruarri, for the State
D Joseph, for the offender

22 February, 2008

1. CANNINGS J: This is a decision on sentence for a young man, Joe Taliva, who pleaded guilty to one count of rape arising from the following facts.

2. He and a man from Karkar Island, Biang, made a plan to intercept the complainant, an 18-year-old woman, and have sex with her. On the morning of 27 February 2007 Biang took the complainant to the Abef swamp at Sagalau, where the offender had gone, in accordance with the plan. The offender held them up and then tied the complainant's hands and sexually penetrated her without her consent. Biang did likewise. The complainant was seven months pregnant.

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction under Section 347(1) (crime of rape) of the Criminal Code.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. 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. He said:

This was not my idea. I only followed Biang.

OTHER MATTERS OF FACT

6. 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 SCRA No 52 of 2005, 27.04.06).

7. He cooperated with the police and made admissions in his police interview. There is no evidence on the file of aggravated physical violence. He denies using a firearm to threaten the victim.

PERSONAL PARTICULARS

8. Joe Taliva is now 22 years old, single and educated to grade 6. He is from Livuan village in the Kokopo district of East New Britain Province. He came to Madang in 2000 to visit relatives. If he is to serve a prison term he would like to serve his time in his home province.

SUBMISSIONS BY THE DEFENCE

9. Mr Joseph 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 21 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

10. Mr Ruarri submitted that there were a number of major aggravating factors, warranting a sentence of at least ten years imprisonment.

DECISION MAKING PROCESS

11. 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?

12. 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.

13. 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?

14. 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.

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?

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

TABLE: 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	
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?

16. Mitigating factors are:

•	no torture;
•	no STD passed on;
•	co-operated with police;
•	no further trouble;
•	pleaded guilty;
•	a first-time offender;
•	youthful offender.

17. Aggravating factors are:

•	offender was not alone;
•	the victim was tied up;
•	the victim was pregnant;
•	the rape was pre-meditated;
•	penile penetration;
•	no provocation;
•	pack-rape;
•	no remorse;
•	did not give himself up;
•	no reconciliation.

18. Weighing all these factors I consider that the head sentence should be at the starting point. I fix a head sentence of ten years imprisonment.

19. The offender has benefited greatly from his guilty plea. If he had been convicted after a trial and circumstances of aggravation had been included in the indictment his sentence would probably be double what he is receiving. It is not at all clear that the offender appreciates the gravity of the crime that he has committed. It is frightening that our society has produced a man who could involve himself in such a hideous crime at such a young age – and twelve months later he still seems to have little appreciation of what he has done.

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

20. 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 seven months.

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

21. No. The court has not been informed of any moves towards compensation or reconciliation. He will have to serve his time in prison.
 
SENTENCE

22. Joe Taliva, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	7 months	
Resultant length of sentence to be served	9 years, 5 months	
Amount of sentence suspended	Nil	
Time to be served in custody	9 years, 5 months	
Place of custody	Kerevat Correctional Institution, to where he is to be transferred within three months after the date of sentence.	

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender