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State v Yame [2010] PGNC 161; N4131 (13 August 2010)

N4131

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1357 OF 2009

BETWEEN

THE STATE

V

MARCUS YAME

Vanimo: Makail, J
2010: 10th & 13th August

CRIMINAL LAW - Plea - Two counts of sexual assault - Female victim - Cousin - Fondling of breasts and vagina - Prevalence of offence - Isolated incident - Circumstances of aggravation not pleaded in indictment - Sentences considered within the allowable range of 5 years imprisonment - Custodial sentence appropriate - No pre sentence report - Suspension of sentence inappropriate - Compensation appropriate - 1 year imprisonment imposed for each offence - Concurrent sentences - Compensation of K300.00 and traditional beads ordered - Criminal Code, Ch 262 - Sections 19 & 349 - Criminal Law (Compensation) Act, 1991 - Section 5.

Cases cited:

The State -v- Dibol Petrus Kopal (2004) N2778
The State -v- James Yali (2006) N2989
The State -v- Mark Samuel Haupas (2007) N3186
The State -v- Hillary Laris (2008) N3411
The State -v- Hillary Laris (2009) N3724
The State -v- Ima Esiko (2009) N3607
The State -v- James Gurave Guba (2000) N2020
The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205
Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85
The State -v- Peter Kose Wena [1993] PNGLR 168; (1993) N1184

Counsel:

Mr K Umpake, for the State
Ms A Turi, for Prisoner

SENTENCE

13th August, 2010

1. MAKAIL, J: Marcus Yame, you were indicted by the State with two counts of sexual assault of a female contrary to section 349 of the Criminal Code, Ch 262 and one count of rape of a female contrary to section 347(1) of the Criminal Code, Ch 262. You pleaded guilty to the two counts of sexual assault and not guilty to the one count of rape. Because of your not guilty plea to the charge of rape, the Court could not deal with the three counts at the same time and adjourned the charge of rape to the next sittings of the National Court in Vanimo to be heard by another judge. As for the first two counts, a provisional plea of guilty was entered and upon the Court's perusal of the deposition handed up by the State, the Court was satisfied that the charges were established and convicted you. The Court proceeded to hear submissions on sentence for each counts.

2. The Court heard on the morning of 22nd August 2009, between 6 o'clock and 7 o'clock, the victim a female by the name of Serlian Abula left her house and went down to the beach to relieve herself. When she finished and was about to return to the house, she met you. You had a "bilum" or string bag. You told her to go and get betel-nuts you hid amongst the coconut trees further up the beach. You showed her the location and gave your bilum and she left. You went to your house and after a brief period, you followed her to the location where you said you have hid the betel-nuts.

3. When you arrived at the location, you saw her and grabbed her. You forcefully pulled her into the nearby bushes and fondled her breasts. Then you put your hands into her shots and pants and fondled her vagina. She managed to escape and reported the incident to her aunt Cecilia Krulio. The incident was subsequently reported to her mother and a complaint was made to the police where you were arrested and charged for these offences.

4. Matters operating in your favour are:

- Early guilty plea;

- First offender;

- Remorseful;

- No serious injury caused to victim; and

- Isolated incident.

5. Matters operating against you are:

- Prevalence of the offence;

- Cousin to the victim;

- Not a youthful offender;

- Some element of trickery involved to lure the victim; and

- Some force used against the victim.

6. I take into account you are 22 years old and come from Yako village. You are married and have three children who are all under 10 years. You were educated up to Grade 3 at Baro Community School. You could not continue with your education because of no school fees. You are a member of the Seventh Day Adventist Church. You offered to pay K1,000.00 as compensation to the victim but it was refused. As a result, no reconciliation took place between you and the victim and her line.

7. Section 349 of the Criminal Code, Ch 262 states:

"(1) A person who, without a person's consent -

(a) touches with any part of his body, the sexual parts of that other person; or

(b) compels another person to touch, with any part of his body, the sexual parts of the accused person's own body,

is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other with any part of his body or with any object manipulated by the person.

(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years."

7. The maximum prescribed penalty for this offence is 5 years imprisonment. If there are circumstances of aggravation present, the Court may impose a higher penalty than 5 years imprisonment but not exceeding 10 years: see section 349(4) of the Criminal Code, Ch 262. The circumstances of aggravation must be pleaded in the indictment and proved beyond reasonable doubt as an element of the offence: see The State -v- Dibol Petrus Kopal (2004) N2778 and The State -v- James Yali (2006) N2989. If they are not pleaded in the indictment, they may nonetheless be taken into account as aggravating factors when deciding on a sentence within the allowable range.

8. In your case, the State has not pleaded the circumstances of aggravation in the indictment. Therefore, I will not consider any penalty exceeding 5 years imprisonment. If there is evidence of circumstances of aggravation present, I will take them into account when deciding a penalty within the allowable range of 5 years imprisonment under section 349(1) of the Criminal Code, Ch 262.

9. In The State -v- Mark Samuel Haupas (2007) N3186, Cannings, J imposed a sentence of 3 years with no suspension on the prisoner following his admission to one count of sexual assault on a pregnant woman at Tiauri village in Bialla in the West New Britain Province. The woman was seven months pregnant and was walking down to a creek to fetch water. She was carrying various containers. The prisoner followed her and was talking to her. The woman fetched water and was walking back to her house. He followed her again then held her on her neck and forced her to the ground. He got on top of her and tried to remove her clothes. The victim struggled but the prisoner managed to remove her under garments and touched her sexual parts without her consent before he was disturbed by passer-by and ran away.

10. In The State -v- Hillary Laris (2008) N3411, the prisoner was a highly educated man, having graduated from the University of Papua New Guinea with a Bachelor of Arts Degree and was the sitting member representing the people of Tsitalato in the Bougainville House of Representative. He was indicted with one count of sexual assault of a female contrary to section 349(1) of the Criminal Code, Ch 262. He denied the charge and following a trial, was convicted. Paliau, AJ imposed a sentence of 5 years imprisonment and wholly suspended it subject to various conditions. One of the strong mitigating factors was the payment of substantial compensation comprising of cash money and kind to the victim.

11. This same prisoner was sentenced to a separate imprisonment term in 2009 for the same offence on a different victim. This was by Cannings, J in The State -v- Hillary Laris (2009) N3724 where his Honour imposed 3 years imprisonment and suspended 2 years on conditions leaving a balance of 1 year to serve. This time the prisoner opened the zipper of his trouser and took the hand of a 20 years old female who had come in to fill in a job application form in his office and placed it on his penis. His Honour sentenced him to 3 years imprisonment and suspended 2 years leaving a balance of 1 year to serve.

12. On 23rd April last year, Cannings, J sentenced the prisoner in the case of The State -v- Ima Esiko (2009) N3607 to 3 years imprisonment in hard labour and suspended 2 years, 11 months, 3 weeks and 3 days with various conditions following a trial on one count of sexual assault contrary to section 349(1) of the Criminal Code, Ch 262. In that case, the prisoner, aged 22 at the time tried to sexually arouse the female victim who was a neighbour and well known to him. After a considerable period of undecidedness, she rejected the sexual advances but he persisted, touching her genital area and groin and pulling down her trousers and tearing her underpants before letting her go.

13. In imposing the sentence of 3 years imprisonment and partly suspending it, his Honour found that there were more mitigating factors than aggravating factors present in that case. The mitigating factors were, the prisoner stopped the assault himself, only one offender, no aggravated violence, no physical injury caused to the victim, isolated incident, no special relationship of trust existed between the prisoner and the victim, some compensation paid to victim, no further trouble and prisoner was a first offender. There was also a pre sentence report supporting a suspended sentence. The aggravating factors were, the prisoner did not surrender himself, denied the offence and a trial was conducted and he was found guilty and convicted, and was not a youthful offender.

14. From these cases, it is noted the Court has imposed sentences between 3 years and 5 years imprisonment and partly suspended them. Only in Ima Esiko's case (supra) was the sentence wholly suspended after time spent in pre trial custody was deducted. In some cases like Hillary Laris (supra) decision by Paliau, AJ and Ima Esiko (supra), the prisoner pleaded not guilty to the offence. Further, in all these cases, Mark Samuel Haupas (supra), Hillary Laris (supra) decision by Paliau, AJ, Hillary Laris (supra) decision by Cannings, J and Ima Esiko (supra) a pre sentence report was provided to assist the Court in its consideration of a suspended sentence.

15. In your case, you and your lawyer asked for a wholly suspended sentence but there is no pre sentence report to assist me to determine whether you are a suitable person for suspended sentence. A pre sentence report is a useful source of information to assist me to determine whether a suspended sentence is appropriate for you. Usually, it would contain views of community leaders and people who know the prisoner like you. Further and very importantly, it would contain the views of the victim. I do not have the benefit of the views of such people because no pre sentence report has been provided. It is therefore difficult to know whether you are a suitable person for a suspended sentence.

16. I accept that you pleaded guilty to the offences and that you are a first offender. I also accept you are sorry for what you did and no serious injury was caused to the victim. It was an isolated incident. Against these mitigating factors are the aggravating factors. You have committed offences that are prevalent in our society. Sexual assault is categorized as a sexual offence because it is an invasion of a person's private part of the body by another without consent. It is common knowledge that sexual offences are on the rise in the country. People, especially, men do not seem to respect the female members of our community. The victim is your cousin and you used some force to stop her from calling out for help when you sexually assaulted her. You fondled her breasts first and then, her vagina. Men who commit such offences should not expect to have the sympathy of the Court simply because they plead guilty. The Court must sent out a clear warning to such perpetrators like you that such conduct will be severely dealt with.

17. I also consider your plea that you are married and have three children who are all under 10 years insignificant. This is because you are not a youthful offender. You are a married man. You had a wife to satisfy your sexual desires with and it is unacceptable that you went the other way. To make matters worse for yourself, you went after your cousin. You took the opportunity when she was alone at the beach that morning. I have no doubt in my mind that there is some element of trickery in your case because when you saw her at the beach that morning, you approached her and told her to go and get betel-nuts you hid further up the beach amongst the coconut trees. The poor girl had no idea what you were up to and followed your instructions. When she arrived at the location you gave her and was busy searching for the betel-nuts, you arrived. You grabbed her and pulled her into the nearby bushes. There, you held her against her will and fondled her breasts and vagina without her consent. When you grabbed her and forced her into the nearly bushes and fondled her breasts and vagina, I find these amount to circumstances of aggravation.

18. When I take into account these mitigating and aggravating factors, I consider your case falls into 1 year and 3 years imprisonment sentencing range. Further, the fact that there is no pre sentence report to support a wholly suspended sentence, I consider a short and sharp imprisonment term appropriate. Therefore, you are sentenced to 1 year imprisonment in hard labour for each count, giving a total of 2 years imprisonment. There will be no suspension of the sentence for each offence either in part or in whole because in my view, the sentence is shorter than the sentences imposed by Court in past cases that I have referred to above. It is also an expression of the Court's indignation of such conduct by perpetrators like you.

19. I have also given consideration to the question of whether your sentence should be made concurrent or cumulative since you have been charged and pleaded guilty to two different offences of the same nature. The Court has discretion to impose a concurrent or cumulative sentence and the principles upon which the Court may make a sentence cumulative or concurrent are well settled. First, the "one transaction rule" states that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent. Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable.

20. For example, burglary and violence to the householder, or assault plus escaping from custody, sexual assaults on different victims and finally, the "totality rule or principles:" when the sentence has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see is it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total: see The State -v- James Gurave Guba (2000) N2020, The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205 and Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85.

21. I consider a concurrent sentence appropriate in your case because the two offences were committed at the same time, at the same place and on the same victim. You will therefore serve both sentences concurrently. The period of time you spent in pre sentence custody of 3 months and 5 days between 29th August and 02nd December 2009 before you were granted bail is deducted, leaving a balance of 8 months and 25 days to serve. Your bail money of K300.00 shall be refunded forthwith.

22. In addition, since you and your lawyer told the Court you were prepared to pay compensation to the victim, I have also given some serious consideration to that. I note following the commission of the offences, you attempted to pay compensation of K1,000.00 to the victim and her line but it was rejected. You and your lawyer did not tell the Court why it was rejected. Without much speculation, I can only infer from the circumstances that because the matter was reported to the police and in the hands of the law, the matter should be dealt with according to law. If that was the reason, I see no problem with that, and you cannot force the issue on them. If the victim and her line were upset and bitter towards you, it is only a natural human reaction because you have done something gravely wrong within your family circle. You must respect their feelings until such time they are ready to reconcile with you.

23. You said you could afford payment of between K200.00 and K300.00 including traditional beads. There is no means assessment report to show whether you have the financial capacity to pay compensation. Nevertheless, I accept your word that you are able to pay compensation within the range of K200.00 and K300.00 including traditional beads. The Court has power to order payment of compensation under section 5 of the Criminal Law (Compensation) Act, 1991. Under that Act, compensation may be ordered in addition to other forms of punishment that the Court may impose on an offender: see The State -v- Peter Kose Wena [1993] PNGLR 168; (1993) N1184.

24. Although the victim sustained no serious injury, I am satisfied you have invaded her privacy and it is fair that you must compensate her for the pain and humiliation you have caused to her. I am therefore satisfied that this is an appropriate case for compensation to be ordered. In the circumstances, you are ordered to pay K300.00 and traditional beads to the victim within one month of this order. If you default, you shall serve a further one month imprisonment.

25. In conclusion, the prisoner is sentenced to 1 year imprisonment in hard labour for count one and 1 year imprisonment in hard labour for count 2. Each sentence shall be served concurrently and 3 months and 5 days for time spent in pre sentence custody between 29th August and 02nd December 2009 before you were granted bail is deducted, leaving a balance of 8 months and 25 days to serve. You are further ordered to pay K300.00 and traditional beads to the victim within one month of this order. If in default, you shall serve a further one month imprisonment. Your bail money of K300.00 shall be refunded forthwith.

Sentence accordingly.
____________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for Prisoner