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State v Kui [2011] PGNC 85; N4367 (26 August 2011)

N4367

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 975 0F 2010

THE STATE

V

JERRY KUI

Madang: Cannings J
2011: 4, 22, 26 August

SENTENCE

CRIMINAL LAW – sentence – rape – Criminal Code, Section 347(1) – guilty plea – no circumstances of aggravation charged in indictment.

A male offender, aged 51 at the time of the offence, pleaded guilty to the rape of a fellow villager, a 24-year-old woman. No circumstances of aggravation were charged in the indictment and there was no aggravated physical violence.

Held:

(1) The maximum penalty, there being no circumstances of aggravation, is 15 years imprisonment.

(2) The starting point is 10 years imprisonment.

(3) The guilty plea, absence of prior convictions and the age and state of health of the offender (a TB sufferer) are the main mitigating factors.

(4) The abuse of trust was the major aggravating factor.

(5) A sentence of 7 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 Felix Minja (2010) N4156
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) N4113

SENTENCE

This was a judgment on sentence for rape.

Counsel

M Pil, for the State
J Mesa, for the offender

26 August, 2011

1. CANNINGS J: This is a decision on sentence for a 52-year-old man, Jerry Kui, who pleaded guilty to the rape of a fellow villager, a 24-year-old woman. He has been convicted of one count of rape under Section 347(1) of the Criminal Code. The offence was committed on the afternoon of Sunday 14 February 2010 at Mirkuk village, in the Madang District of Madang Province, where the offender and the victim lived. The offender, who comes from the Nuku area of West Sepik Province, moved there 20 years ago.

2. The offender followed the victim when she went to the river to fetch water. On the bank of the river he confronted her, threatened her with physical violence if she called out, overpowered her, removed her clothes and penetrated her vagina with his penis without her consent.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

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

I am sorry for what I have done and I will not do it again. I apologise to the victim and the court. I am a very sick person as I have TB. I ask the court for mercy and a non-custodial sentence.

OTHER MATTERS OF FACT

5. 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). In that regard it is accepted that he suffers from tuberculosis and that he has been hospitalised for a month while in custody and that he is still under a six-month course of treatment. As for the victim, although the circumstances of the offence was a crime of violence, she did not suffer from any aggravated physical violence.

PRE-SENTENCE REPORT

6. Jerry Kui comes from Angokanak village in the Nuku District of West Sepik Province. He had been living at Mirkuk since the early 1990s, apparently as a well accepted member of the village. He has been a single man all his life and has no dependants. His parents are deceased and it seems that he has lost contact with his family. He regards Mirkuk as his home and helps the villagers in their gardens and they look after him in return and that is how he sustains himself. He has no money or assets or liabilities, and no enemies, he says, only friends in the village. He is a member of the United Church. He would like to either return to Mirkuk or to his home village in West Sepik when he comes out of jail.

7. The victim and her family have expressed the view that they do not want him back in Mirkuk and he should not be shown any leniency. The victim is not interested in compensation.

SUBMISSIONS BY THE DEFENCE

8. Mr Mesa highlighted the guilty plea, the absence of any prior convictions, the advanced age and the poor state of health of the offender. 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 six to eight years would be appropriate.

SUBMISSIONS BY THE STATE

9. Mr Pil did not take issue with the sentence suggested by the defence counsel.

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. In this case no circumstances of aggravation were included in the indictment. Therefore the maximum penalty is 15 years imprisonment. On the other hand, 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?

13. 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.
  

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 other sentences I have imposed for rape in cases that for various reasons must be considered more serious than the present case.

TABLE 1: OTHER RAPE SENTENCES, 2006-2010

STEP 4: WHAT IS THE HEAD SENTENCE?

16. 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.

17. Mitigating factors:

• only one offender;
• weapons not used or threatened;
• no sexually transmitted disease was passed on to the victim;
• no aggravated physical violence;
• no further trouble caused to the victim;
• pleaded guilty;
• first-time offender;
• expressed remorse;
• the offender is of an advanced age and his health is poor.
  

18. Aggravating factors:

• large age gap (51 – 24 = 27 years) between the offender and the victim;
• he abused the relationship of trust that exists between fellow villagers.
  

19. The guilty plea, absence of prior convictions and the age and state of health of the offender (a TB sufferer) are the main mitigating factors. This is a serious case of rape but not as serious as the precedents described in the table of sentences above. After comparing and contrasting this case with those precedents, the appropriate sentence is seven years imprisonment.

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

20. 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, five months, one week.

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

21. No justification is provided in the pre-sentence report for probation. There is no evidence of reconciliation between the offender and the victim or her family. The victim is not interested in reconciliation by way of compensation. 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 a non-custodial sentence. His TB condition will make life difficult for him in the jail but these difficulties appear at the moment to be manageable. If a serious medical problem arises that cannot be dealt with quickly by the Correctional Service he may apply to the Court for appropriate orders. He is of an advanced age and his health is poor and he must be treated with dignity. But no one, especially the offender and the community in which he has lived for 20 years, should lose sight of the fact that he committed a very serious crime for which he must be seen to be punished appropriately. No part of the sentence will be suspended.

SENTENCE

22. Jerry Kui, having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender