N5464
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 1571 & 1572 0F 2005

THE STATE

V

ELIZA MELVA GORI & TIMOTHY AKA

Kimbe: Cannings J
2008: 1, 18, 24 April

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

Two youths pleaded guilty to one count of rape. They were both aged 16 at the time and the victim was 17. The offence was planned. 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 and the age of the offenders at the time of the offence are the major mitigating factors. A sentence of eight years each was imposed, two years of each sentence being suspended due to good pre-sentence reports.

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 Joe Taliva CR No 135/2008, 22.02.08
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

T Ai, for the State
R Beli, for the offenders

24th April, 2008 

1. CANNINGS J: This is a decision on sentence for two men, Eliza Melva Gori and Timothy Herman Aka, who have pleaded guilty to committing the crime of rape at Gigo Beach in Kimbe on 7 April 2005, when they were both aged 16. 

2. The victim was their female cousin, "A", who was 17 years old at the time. She was at her uncle's place at Gigo when Timothy tricked her into coming for a walk with him. He told her that her girlfriend had sent word for them to go and see her. They set off to the girlfriend's place and Timothy asked Eliza to accompany them. Timothy said that they should go not by the normal track past the beach but by the track that led into a banana patch. Timothy sent Eliza away for a short while then pushed the victim to the ground. Eliza returned at that point and he assisted Timothy by holding her on the ground. Timothy removed the victim's clothes then penetrated her vagina with his penis, without her consent. Then Eliza did the same thing, also without consent. A friend of "A", George, by chance, arrived on the scene, rescued "A" and the offenders fled.

ANTECEDENTS

3. Neither offender has any prior convictions.

ALLOCUTUS

4. Each offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

Eliza: I apologise before this court for what I have done, which is not good. I apologise to everyone in the courtroom. I ask for the court's mercy so that I can be put on probation. I am in my final year at school and my education will be disrupted if I am sent to prison.
 
Timothy: I apologise for what I have done and ask for mercy and probation. I have changed my life since committing this offence.

OTHER MATTERS OF FACT

5. As the offenders have pleaded guilty they 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). They each cooperated with the police and made admissions in their police interview.

PRE-SENTENCE REPORTS

6. Eliza Melva Gori is 19 years old and single. He is the second born in a family of six. His parents are from the Kove area of West New Britain and he has been brought up in the family home at Gigo 1 in Kimbe. He is doing grade 10 at Moramora Technical School. He has strong family support and no record of being a troublemaker in the community. He has not, however, apologised to the victim, who is his cousin and lives in the same community as him. She requested K1,000.00 compensation from each of them but nothing has been paid, so now she wants K2,500.00 from each. She would prefer that they be given time to pay, rather then being sent to jail straightaway.

7. Timothy Herman Aka is also 19 years old and single. He is the fourth born in a family of seven. His parents are from the Kove area of West New Britain and he has been brought up in the family home at Gigo Beach in Kimbe. He is doing grade 8 at a private school, Morning Star Academic School, near Kimbe. He has strong family support and no record of being a troublemaker in the community. The victim's attitude to him is the same as for Eliza: there has been no apology or reconciliation and she still wants compensation.

SUBMISSIONS BY THE DEFENCE

8. Mr Beli submitted that that there are a number of mitigating factors: it was an unplanned incident, they are first-time offenders; the victim was around the same age as they were; no weapons were used; the victim suffered no serious physical injuries; they pleaded guilty and co-operated with police. A sentence of around seven years would be appropriate, much of which should be suspended, Mr Beli submitted.

SUBMISSIONS BY THE STATE

9. Mr Ai conceded that this was not in the worst case category of rape but it was nonetheless a serious offence and a custodial sentence is warranted.

DECISION MAKING PROCESS

10. 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?

11. 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.

12. No circumstances of aggravation were charged in the indictment. Therefore the maximum penalty is 15 years imprisonment. The court has a discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. 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.

14. 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.

RAPE SENTENCES 

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	
11	The State v Joe Taliva CR No 135/2008, 22.02.08, Madang	Guilty plea – offender, aged 20, raped 18-year-old friend, who was pregnant – planned offence – victim lured to a secluded location by trickery by a friend of the offender – conviction under Section 347(1).	10 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

16. The offenders had an equal level of involvement in the crime and their personal circumstances are similar. 

17. Mitigating factors are:

•	no torture;
•	no STD passed on;
•	no weapons used;
•	no serious physical injury inflicted on the victim;
•	co-operated with police;
•	no further trouble to the victim;
•	pleaded guilty;
•	first-time offenders;
•	youthful offenders;
•	good pre-sentence reports.

18. Aggravating factors are:

•	offenders committed a pack rape;
•	the rape was planned (I reject the defence submission that it was unplanned);
•	penile penetration;
•	no apology to the victim, no reconciliation, no compensation.

19. Weighing all these factors I consider that the head sentence should be below the starting point. Besides the guilty plea, the strongest mitigating factor is the age of the offenders at the time of the offence. I fix a head sentence of eight years imprisonment.

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

20. The offenders have not spent any time in custody so there is nothing to be deducted.

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

21. There are three aspects of this case that provide some support for non-custodial sentences. First, they are still young men, still going to school, and their education will be seriously disrupted if they are sent to jail immediately. Secondly, it seems that the victim does not want to see them imprisoned immediately. She wants them given time to pay compensation. Thirdly, both of them have good pre-sentence reports, recommending that they are suitable for probation. Against those factors, however, is the fact that fully suspended sentences for rape are rare as it is a very serious offence and the community's expectation is that rapists will be imprisoned. This was a rape of a young woman, only 17 years at the time – the type of offence that occurs with alarming frequency throughout the country, including West New Britain. I think the court would be sending the wrong message to the community and in particular to the young men of this province if non-custodial sentences were imposed. This was not a minor indiscretion by two young boys. It was a terrible crime committed against a young girl who trusted them. They betrayed that trust in a wicked way. Though they were young, they were old enough to know what they were doing was a serious crime. They must go to jail now, to mark this community's condemnation of their actions and send the right message to the community: if you commit rape, you go to jail. I will, however, suspend two years of each sentence, on the following conditions:
 
(a)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b)	must not leave the Province in which he resides without the written approval of the National Court;
(c)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d)	must attend his local Church every weekend for service and worship and submit to counselling;
(e)	must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f)	must not consume alcohol or drugs;
(g)	must keep the peace and be of good behaviour;
(h)	must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(i)	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCES

22. Eliza Melva Gori and Timothy Herman Aka, having been convicted of the crime of rape, are each sentenced as follows:

Length of sentence imposed	8 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	8 years	
Amount of sentence suspended	2 years	
Time to be served in custody	6 years	
Place of custody	Lakiemata Correctional Institution, until further order of the Court.	

Sentenced accordingly.
________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders