N4318

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1031 0F 2010

THE STATE

V

A JUVENILE, "NB"

Madang: Cannings J
2011: 16 May, 9, 22 June

SENTENCE

CRIMINAL LAW – sentence – rape – Criminal Code, Section 347(1) – guilty plea – juvenile offender – no circumstances of aggravation – sentence of 6 years

A male offender, 15 years old at the time of the offence, pleaded guilty to the rape of a mature-aged woman, a fellow villager. No circumstances of aggravation were charged in the indictment.

Held:

(1)	The maximum penalty is 15 years imprisonment and a starting point of 10 years imprisonment is appropriate.

(2)	The guilty plea, the offender's age and the evidence of reconciliation between the offender's family and the victim's family are the main mitigating factors.

(3)	The aggravating factors were that physical force was used to drag the victim from her house and the abuse of the bond of trust which should exist between fellow villagers.

(4)	A sentence of 6 years was imposed. The pre-sentence period in custody was deducted and the balance 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 A Juvenile, "FK", CR No 1019/2009, 06.07.10 
The State v Alex Matasol Hagali CR No 928/1997, 29.09.06
The State v George Tomeme CR No 920/2002, 24.08.07
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
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

SENTENCE

This was a judgment on sentence for rape.

Counsel

P Kaluwin & S Collins for the State
D Joseph & B Samuga for the offender

22 June, 2011

1. CANNINGS J: "NB" has pleaded guilty to a charge of rape and been convicted of that offence under Section 347(1) of the Criminal Code. He is 16 years old. He was aged 15 when the offence was committed at his village in the Madang District on 20 April 2010. He went to the front of the house of the victim, a mature-aged married woman, a fellow villager. She was on the veranda and he called her to come down to talk to him. He then held her forcibly and pulled her a short distance away from the house where he removed her clothes and sexually penetrated her by introducing his penis into her vagina, without her consent.

ANTECEDENTS

2. The offender has no prior convictions.

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

It is true that I did this thing but I was not armed. There were small children who saw what happened. I apologise to them and to the victim and to her parents for what I did to her. I also apologise to the Court and to God. I apologise to all the lawyers involved in my case and to my own family as I have brought shame to the family. I am a first-time offender. I ask for the court's mercy and for a non-custodial sentence.

OTHER MATTERS OF FACT

4. 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). The main mitigating matter is that some compensation has been paid to the victim and that there has been some attempt made to reconcile with her.

PRE-SENTENCE REPORT

5. A pre-sentence report prepared by the Madang branch of the Community Based Corrections and Rehabilitation Service reveals that NB's parents are alive and strongly supportive of him. He is the fourth-born of eight children. He is a village boy, with only a grade 2 education. He is a member of the Apostolic Church. He intends to stay in the village and help his family with their cocoa, copra and betel nut crops. Compensation has been paid to the victim and her family in accordance with local custom: one live pig, K300.00 cash, K500.00 worth of traditional money and foodstuff worth K300.00. Both the offender's father and the victim's father have provided details of the compensation and reconciliation that has occurred.

SUBMISSIONS BY THE DEFENCE

6. 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. The offender is still a juvenile and he is a first-time offender. It was not a premeditated crime. A sentence of no more than 10 years imprisonment should be imposed.

SUBMISSIONS BY THE STATE

7. Mr Collins conceded that the offender's age is a mitigating factor and agreed that a sentence of eight years would be appropriate.
DECISION MAKING PROCESS

8. 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?

9. 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.

10. 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?

11. 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.

12. 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?

13. The following table shows a number of rape sentences under Section 347(1).

RAPE SENTENCES, SECTION 347(1)

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 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	
6	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	
7	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	
8	The State v Joe Taliva CR No 135/2008, 22.02.08, Madang	Guilty plea – the offender planned with an accomplice to intercept the victim in a secluded location – he tied the victim's hands – the victim was pregnant.	10 years	

STEP 4: WHAT IS THE HEAD SENTENCE?
14. 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.

15. Mitigating factors:

•	only one offender;
•	weapons not used or threatened;
•	no aggravated physical violence;
•	no further trouble caused to the victim;
•	first-time offender;
•	juvenile offender;
•	evidence of compensation and reconciliation;
•	pleaded guilty.

16. Aggravating factors:

•	physical force was used to drag the victim from her house;
•	the abuse of the bond of trust which should exist between fellow villagers.

17. The mitigating factors are strong. In view of the guilty plea, the age of the offender and the evidence of payment of compensation and, more importantly, reconciliation between the families, the case warrants a lesser sentence than the starting point of 10 years. After comparing and contrasting this case with those other cases, I consider that the head sentence should be six years imprisonment. This is less than the sentence contended for by the defence; however, I think that the defence's submission failed to adequately reflect the offender's juvenile status and the evidence of compensation and reconciliation.

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

18. 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, two months.

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

19. This is a difficult issue to determine. On the one hand, there is a view that in a serious rape case such as this, the court should signal the community's condemnation of the offence by allowing no suspension at all. On the other hand, the pre-sentence report is painting the picture of a youth – a juvenile – with no history of similar behaviour, doing something entirely out of character. He has shocked his family by being involved in such a crime. Most significantly, it appears that the victim and her family have reconciled with the offender and his family. In these special circumstances I have decided to take the unusual step of suspending the balance of the sentence. This approach is consistent with the approach taken in a remarkably similar case decided last year in Madang: The State v A Juvenile, "FK", CR No 1019/2009, 06.07.10. A 17-year-old boy pleaded guilty to aggravated rape of a girl of similar age. The offence was committed in the village and both families had made concerted attempts to peacefully resolve the matter and in fact the victim did not want to see the offender spend a long time in custody. There was, as in the present case, evidence of reconciliation. The sentence was six years imprisonment, the pre-sentence period in custody (which was only three days) was deducted and the balance of the sentence was suspended. In the present case there is in one respect a stronger case for suspending the balance of the sentence as the offender has already spent 14 months in custody. In another respect, the circumstances are not as conducive to suspension as the evidence of a desire on the part of the victim to reconcile is not as strong as it was in FK's case. I think the best way to accommodate the risk of an ineffective reconciliation is to include as one of the conditions of the suspended sentence a requirement that there be another process of reconciliation, in addition to what has already occurred. The balance of the sentence is therefore suspended, subject to the conditions that the offender:

(a)	must report to the Probation Office within three days after the date of release from custody;

(b)	must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within one month after the date of release from custody, and at the reconciliation ceremony:

•	he must give K300.00 cash + foodstuffs to the victim;

•	the victim's family must contribute 5 chickens + foodstuffs;

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(c)	must reside at his village and nowhere else except with the written approval of the National Court;

(d)	must not leave Madang Province without the written approval of the National Court;

(e)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(f)	must attend his local Church every weekend for service and worship and submit to counselling;

(g)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h)	must not consume alcohol or drugs;

(i)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(j)	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(k)	if he breaches any one or more of the above conditions, 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.

SENTENCE

20. The juvenile, "NB", having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	1 year, 2 months	
Resultant length of sentence 	4 years, 10 months	
Amount of sentence suspended	4 years, 10 months	
Time to be served in custody	Nil, subject to strict compliance with conditions of suspended part of sentence	

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender