N3980

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 85 of 2009

THE STATE

V

JOE MOORE

Kokopo: Sawong, J.
2010: 19, 22, 24 March

CRIMINAL LAW – Sentence – Rape – trial – indicted with circumstances of aggravation – circumstances of aggravation not proved – convicted of rape simpliciter - force used to commit offence taken into account in sentencing – s 347 (1) – Criminal Code, (Sexual offences & Crimes Against Children) Act, 2002.

CRIMINAL LAW – Sentence – Rape – one on one – rape in house – force used – aggravating circumstances not pleaded taken into account in sentenceing – 10 years imprisonment - 347 (1) – Criminal Code, (Sexual offences & Crimes Against Children) Act, 2002.

Cases Cited

State v David Panake (Unreported, CR 86/2009, 19 March 2010) at Kokopo, Sawong, J.
Goli Golu v The Sate [1979] PNGLR 653
State v Yali (2006) N2989
State v Flotyne Sina (2004) N2541
Ure Hane v The State [1984] PNGLR 105
State v Emmanuel George (2008) N3358
State v Dibol Petrus Kopal (2004) N2778
State v Jeffrey Wangi (2006) N3016

Counsel:

S. Luben, for the State
J. Ainui, for the Accused

23rd March, 2010

1. SAWONG, J. After a trial, you were found guilty and convicted of raping the Complainant.

2. For the purposes of sentencing you, the relevant facts are as follows. On the morning of 18 November, 2008 you went to the house where the Complainant was. You then went upstairs and into the house and made yourself some cordial. After drinking, you went to where the Complainant was. She was in the lounge room watching CD. There you touched her body, but she refused your advances and kicked you in the stomach. You however persisted and quickly removed her clothes and your own clothes and forcefully had intercourse with her. In the course, she struggled with you and scratched your face. After you finished, you left her and went out of the house. Immediately after you left, she went into her room and cried and rang her aunty and told her of what had happened.

3. In your allocutus, you told the Court that this was your first time to appear before the Court. You asked the Court for leniency. I have also taken note of your personal antecedents which show that you are educated, and should be able to tell what is right and what is wrong. You are about 42 years old. You were married before but you are now separated. You have one child.

Submissions

4. Ms Ainui submitted that this was not a worst type of a rape case. She further submitted that there were no aggravating factors and that even though there was some struggle and resistance put up by the Complainant, the court should not take those matters into account. She submitted, as I understood, that the force you used was not over and above the force necessary to commit the crime. More over she submitted that as no weapons were used, no threats were used and the Complainant did not suffer any physical injury, nor impregnated nor infected with any sexually transmitted diseases, the sentence should not be a crushing one. She submitted that a sentence of 9 years imprisonment would be appropriate. In support of her submissions she relied on State v Flotyne Sina (2004) N2541, State v David Panake (Unreported, CR 86/ 2009, 19 March 2010), Kokopo, Sawong, J.

5. Ms. Luben, on the other hand submitted that a sentence of 10 years or more should be imposed given the facts and circumstances of this case. She submitted that sentences for rape cases have been consistently increased over the years as the crime is a prevalent and violent crime.

6. She submitted that, whilst there were no threats, or weapons used and that the Complainant was not infected with any sexually transmitted diseases and was not pregnant, nevertheless as some force used to commit the crime, and it was committed inside her house, the sentence should be higher. She too referred me to several authorities in support of her submissions.

Law

7. The offender was indicted under s.347 (1)(2) of the Criminal Code. However, he was found guilty and convicted of rape without aggravating circumstances under s.347 (1) as I found that the existence of the circumstances of aggravation pleaded were not proved. He would therefore be sentenced under s. 347 (1) of the Code. See State v James Yali (2006) N2989, State v Dibol Petrus Kopal (2004) N2778.

8. The current sentencing principles distinguishes between:

•	rape, without circumstances of aggravation under s.347 (1), which attracts a possible maximum sentence of up to 15 years.
•	rape with circumstances of aggravation under s.347 (2), which would, attract a maximum sentence, subject to s.19, of life imprisonment.

See State v David Panake (Unreported, CR86/09, 19 March 2010), State v James Yali (supra), State v Dibol Petrus Kopal (2004) N2778.

9. For a useful analysis of s347 (1), I would refer to the decision of His Honor Cannings J in Yali (supra). I am unaware, and Counsels have not referred me to any Supreme Court decisions regarding the Court sentencing policy since the law was amended.

10. What is clear to my mind is that this crime is a serious and prevalent crime of violence. Despite the legislative action of increasing sentences, and despite the Courts efforts in imposing heavy custodial sentences on offenders who commit this crime, the sentences seem to have no or very little deterrent effect on would be, offenders. The crime is being committed nearly every day throughout the country. 

11. In saying that, I do not for the moment suggest that you should be sentenced for other rape offences committed by other men or women who have not been arrested or convicted. You are being sentenced on the facts of your case.

12. Having said that, however, not every case should attract the maximum sentence prescribed by law. For it is trite law that each case must be determined on its own facts and circumstances and that the maximum sentence should be reserved for the worst type of a particular rape case. See Goli Golu v The Sate [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105.

13. In James Yali v State (supra) Cannings J set out a useful summary of the sentencing ranges imposed by various National Court Judges between 2003 to January 2006 for rape and other sexual offences. The sentence set out therein, for both type of rape, range between 4 years imprisonment to 20 to 25 years imprisonment.

14. More recently, in State v Emmanuel George (2008) N3358, where the accused pleaded guilty to raping a sister in law in her bedroom, David J, imposed a sentence of 8 years imprisonment. No circumstances of aggravation were pleaded in the indictment.

15. In State v David Panake (Unreported Judgment, Sawong J, 19 March 2010 at Kokopo), after a trial the Accused was convicted and sentenced to 9 years imprisonment. There the prisoner went into the Complainant’s bedroom and sexually penetrated her without her consent. No force was used in that case. Even though the circumstances of aggravation were not pleaded in the indictment, I accepted that there were several aggravating factors against the prisoner in arriving at the sentence. I followed Cannings, J decision in Yali (supra). His Honor there followed the decision of Lay, J (as he then was) in State v Kopal (supra). I intend to adopt the same approach in this case. 

16. The facts of State v Yali, are quite different in many respects. In Yali’s case the accused assaulted the victim and committed other sexual indignities on the Complainant and raped her. He was indicted with, amongst other charges, rape in that circumstances of aggravation. He was found guilty of rape without circumstances of aggravation. However, the trial judge also took into account other aggravating factors present and sentenced the prisoner to 12 years imprisonment.

17. In State v Kopal, (supra) the accused was convicted of rape in that circumstances of aggravation the State had pleaded any circumstances of aggravation in the indictment. Nevertheless the trial judge, took into account several aggravating factors and sentenced the prisoner to 14 years imprisonment.

18. In State v Jeffrey Wangi, (2006) N3016 (from the head notes), the prisoner was convicted of the rape of his 8 years old niece. He was aged 36. He acted alone. No weapons were used. There was a violation of trust. No circumstances of aggravation pleaded in the indictment. He pleaded guilty. Although no circumstances of aggravation were charged in the indictment, the trial judge took into account certain aggravating factors and imposed a sentence of 14 years imprisonment.

19. The facts of your case is slightly different and the sentence I am about to impose upon will reflect that. In the present case, it is quite clear to my mind that this case calls from an immediate deterrent custodial sentence. I do not consider that any of it should be suspended. The facts of your case, is slightly different to David Panake’s (supra). There, no force was used, where as here force was used.

20. There are really not many factors in your favour that I should take into account. I have accepted in your favour that you are a first offender. I also accept that you did not use any weapons, or threats to commit the crime. I also accept that she did not suffer any physical injury nor contracted any sexual transmitted diseases.

21. However, what you did is serious matter. You forced yourself upon her. She had resisted and struggled with you, but you persisted with your actions. As a result she was traumatised and crying. You know her and you attacked her in her own home and invaded her privacy. You have expressed no remorse to the Complainant and no compensation has been paid to her. Furthermore, because this was a trial, which is your right, this meant that the Complainant had to come to Court and retell her ordeal and trauma. There is no doubt in my mind that she was traumatised by what you did to her.

22. For the reasons I have given, you are convicted and sentenced to 10 years IHL. From that, I deduct the period of 1 month 5 days leaving a balance of 9 years 11 months and 25 days to serve.

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