N4156
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 501 0F 2009

THE STATE

V

FELIX MINJA

Madang: Cannings J
2010: 7 July, 7, 22 October, 1, 12 November

SENTENCE

CRIMINAL LAW – sentence – rape – Criminal Code, Sections 347(1) and (2) – guilty plea – circumstances of aggravation – restraining victim

The offender pleaded guilty to the rape of his 16-year-old sister-in-law. One circumstance of aggravation was charged in the indictment: that he confined or restrained the victim. There was no reconciliation or forgiveness.

Held:

(1)	The maximum penalty is life imprisonment.

(2)	The starting point is 15 years imprisonment.

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

(4)	There were some major aggravating factors, including the abuse of the relationship of trust between in-laws.

(5)	A sentence of 12 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:

James Yali v The State SCRA No 3/2006, 18.02.10
Saperus Yalibakut v The State (2006) SC890
The State v James Urig CR No 375/2009, 24.05.10
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Philip Kila CR No 777/06, 15.07.09
The State v Robert Yochie (2010)

SENTENCE

This was a judgment on sentence for rape.

Counsel

A Kupmain & N Goodenough, for the State
J Kolkia & D Joseph, for the offender

12 November, 2010

1. CANNINGS J: This is a decision on sentence for a 29-year-old married man, Felix Minja, who pleaded guilty to the rape of his 16-year-old sister-in-law. He has been convicted of one count of rape committed in circumstances of aggravation (that he confined or restrained the victim) under Sections 347(1) and (2) of the Criminal Code.

2. The offence was committed at 7.00 pm on 12 February 2009 at his in-law's village, Kesawai, in the Usino-Bundi District of Madang Province. The offender, who comes from East Sepik Province, moved there in 2008 when he married his wife, who comes from Kesawai.

3. On the night in question, the offender told his wife to bring her younger sister to the house. She did as she was told as she was scared of her husband. The offender then took his wife's sister into his house, where he sexually penetrated her. She did not freely and voluntarily agree to have sex with him. She submitted as she was in fear of harm to herself and her big sister. Thus, she did not consent. She tried to run away, but he restrained her against her will.

ANTECEDENTS

4. The offender has one prior conviction, for armed robbery, in 2000, for which he was sentenced to seven years imprisonment.

ALLOCUTUS

5. The offender was given the opportunity to address the court. He said:

I say sorry for what I have done to my in-law and to my wife. I ask the court to have mercy on me and give me a reasonable term to serve, after which I can return to my village.

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 (2006) SC890). However, none are apparent.

PRE-SENTENCE REPORT

7. Felix Minja comes from Sotmeri village in the Ambunti area of East Sepik. He had been living for some time at Bilia Maus Rot settlement in Madang town before moving to Kesawai in 2008. He is the second born in a family of 14. His parents are alive. He was unemployed while living in town and was a subsistence farmer upon moving to Kesawai. He has had no formal education and is a member of the Seventh-Day Adventist Church.

8. It appears that he wants to return to his wife when he is released from custody, however it seems unlikely that she would want to have him back. The victim's family certainly do not want to see him come back to Kesawai. They show no signs of forgiving him. They do not seek compensation. They just want to see him imprisoned. The victim has made a statement that she feels she was abused terribly by the offender and that her prospects of a good life and education, marriage and employment have been spoiled by him. She was going to school at the time of the incident but had to leave because of the shame.

9. The pre-sentence report is very unfavourable.

SUBMISSIONS BY THE DEFENCE

10. Mr Joseph highlighted the guilty plea, which is significant in this case as the offender has saved the victim the trauma and embarrassment of giving evidence in court. The offence was not accompanied by aggravated physical violence and no weapons were used. No sexually transmitted disease was passed on and the offender has caused no further trouble to the victim and has expressed remorse. A sentence of 10 to 13 years would be appropriate.

SUBMISSIONS BY THE STATE

11. Mr Goodenough highlighted the very serious adverse impact on the victim, which makes this a very serious offence, warranting a lengthy prison term.

DECISION MAKING PROCESS

12. 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?

13. 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.

14. The restraint of the victim that occurred in this case (he restrained her when she tried to run away) was a circumstance of aggravation (under Criminal Code, Section 349A(d)) that was charged in the indictment. Therefore the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

15. In The State v James Yali (2006) 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.

16. I follow that approach in this case and use 15 years imprisonment as a starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence I will consider other sentences I have imposed for rape in cases that for various reasons have similarities with the present case.

TABLE 1: OTHER RAPE SENTENCES, 2006-2010

No	Case	Details	Sentence	
1	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	
2	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	
3	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	
4	The State v Philip Kila CR No 777/06, 15.07.09, Madang	Trial – police officer raped victim in course of police duties, threats of violence – conviction under Section 347(2).	17 years	
5	The State v Robert Yochie (2010) N4113, Madang	Guilty plea – offender raped his 17-year-old biological daughter – circumstances of aggravation charged in indictment – conviction under Section 347(2).	14 years	
6	The State v James Urig CR No 375/2009, 24.05.10, Madang	Guilty plea – 22-year-old offender joined with two other men in dragging a 23-year-old woman away from her sister and raping her – pack-rape – circumstances of aggravation charged in indictment – conviction under Section 347(2).	16 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

18. I refer to the list of sentencing considerations set out in The State v James Yali (2006) N2989, which were recently reviewed by the Supreme Court in an unsuccessful appeal by the offender (James Yali v The State SCRA No 3/2006, 18.02.10) and highlight the following mitigating and aggravating factors.

19. Mitigating factors:

•	only one offender;
•	weapons not used or threatened;
•	no aggravated physical violence;
•	no further trouble caused to the victim;
•	pleaded guilty.

20. Aggravating factors:

•	large age gap (28 – 16 = 12 years) between the offender and the victim;
•	tender age of victim;
•	breach of trust;
•	no reconciliation with the victim;
•	one prior conviction.

21. Mr Joseph asked me to take into account that no sexually transmitted disease was passed on to the victim, but the depositions suggest that, in fact, the victim was suffering from an STD when she was medically examined soon after the incident. 

22. Mr Joseph also submitted that the offender's remorse was genuine and ought to be taken into account as a mitigating factor. The offender expressed remorse, but with little sincerity, so it does not count as a mitigating factor. 

23. As to the relevance of the prior conviction for armed robbery, the court was faced with the unusual situation of the prosecutor submitting that this should not be taken into account as aggravating factor. I reject that submission. Both armed robbery and rape are crimes of violence; and if an offender who has been convicted of armed robbery later commits rape, it increases the severity of the second crime. It naturally follows that it is an aggravating factor for sentencing purposes.

24. The guilty plea must be given prominence and therefore the case warrants a lesser sentence than other aggravated rape cases, such as Philip Kila (trial, 17 years). I consider that the present case does not have as many aggravating features as the two cases of aggravated rape dealt with earlier this year in Madang, both of which involved guilty pleas: Robert Yochie (rape of daughter, 14 years) and James Urig (pack-rape incident, 16 years). 

25. After comparing and contrasting this case with the other cases summarised above, I consider that the head sentence should be the same as that in James Yali's case (a trial matter, where the offender raped his young sister-in-law, but no circumstances of aggravation were charged in the indictment. The head sentence will be 12 years imprisonment.

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

26. 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 one year, nine months.

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

27. No justification is provided in the pre-sentence report for probation. There is no evidence of reconciliation between the offender and the victim or his wife or his in-laws. There is also no evidence of a strong family or community network that would be required to be in place if an offender who has committed a crime of this nature were to be given non-custodial sentence. 

28. The fact that the offender committed this offence after serving time for armed robbery suggests that he has learned nothing from his previous conflict with the law and that the community needs to be protected from him. I will not suspend any part of the sentence.

SENTENCE

29. Felix Minja, having been convicted of the crime of rape in circumstances of aggravation under Sections 347(1) and (2) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	1 year, 9 months	
Resultant length of sentence 	10 years, 3 months	
Amount of sentence suspended	Nil	
Time to be served in custody	10 years, 3 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

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