N5644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 567 OF 2013

THE STATE

V

JUNIOR ANTON JOHANNES

Madang: Cannings J
2014: 20 May, 25, 26 June

CRIMINAL LAW – sentencing – rape – sentence after trial – no circumstances of aggravation alleged in indictment – Criminal Code, Section 347(1).

The offender was found guilty of one count of rape under Section 347(1) of the Criminal Code. The offender and the victim were of a similar age, in their early 30s, and were well known to each other, being neighbours. The offender grabbed the victim as she was walking along a road, dragged her into the bush and sexually penetrated her without her consent. This is the judgment on sentence.

Held:

(1)	The starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.

(2)	Mitigating factors: offender acted alone, no torture, no confinement, no STD transmitted, no other indignity, no further trouble, first-time offender, not a large age gap.

(3)	Aggravating factors: penile penetration, no consent, no provocation, emotional impact on victim, does not accept responsibility, no remorse, not a youthful offender.

(4)	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:

The State v Alex Matasol Hagali (2006) N4491
The State v Douglas Jogioba (2007) N4085
The State v Eliza Gori & Timothy Aka (2008) N5464
The State v George Tomeme (2007) N5038
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime (2006) N4484
The State v Joe Taliva (2008) N3947
The State v Junior Anton Johannes (2014) N5599
The State v Noah Mamari(2007) N5464
The State v Noutim Mausen (No 2) CR 596/2004, 24.08.05
The State v Philip Nangoe (2007) N4923
The State v William Tokon (2007) N5037

SENTENCE

This is a judgment on sentence for rape.

Counsel

F Popeu, for the State
A Meten, for the offender

26th June, 2014

1. CANNINGS J: This is a decision on sentence for Junior Anton Johannes who has been convicted after trial of the rape of a young woman. Both the offender and the victim are aged in their early 30s. They are well known to each other, being neighbours, living in the vicinity of Panim village, near Beon Jail, close to Madang town. The offender grabbed the victim as she was walking along a road near Panim, dragged her into the bush, forcibly removed her clothes and sexually penetrated her by introducing his penis into her vagina, without her consent. There was no aggravated physical violence. Further details of the offence are in the judgment on verdict (The State v Junior Anton Johannes (2014) N5599).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I say sorry for what I have done. She was my girlfriend. I leave it to the Honourable Court to decide on the matter.

PRE-SENTENCE REPORT

4. Junior Anton Johannes is aged 33. He is from Moab village in the Bogia District of Madang Province. He has been living close to Beon for many years as his father was a correctional officer, working at the Jail. He is single. He is the second-born in a large family. He is educated to grade 10. He has no formal employment record and has no regular source of income. His health is sound. He has no bad community record. An attempt was made at reconciliation soon after commission of the offence; however the victim's husband was resistant and wanted to see the offender prosecuted in court. The preference of the victim and her family is to see the offender imprisoned; but they say that if he is given a suspended sentence it should be subject to payment of compensation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mrs Meten acknowledged the seriousness of the offence but stressed that there were a number of mitigating factors: he acted alone; he did not torture or confine the victim or cause her serious physical harm or pass on any sexually transmitted disease and he committed no further indignity on the victim. She submitted that a sentence of five years would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Popeu submitted that a sentence of 12 years should be imposed as the matter was taken to trial.

DECISION MAKING PROCESS

7. 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 should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. 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.

9. In this case no circumstances of aggravation were included 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?

10. 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.

11. 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?

12. Before I fix a sentence I will consider recent sentences I have imposed for rape, as shown in the table below.

RAPE SENTENCES

No	Case	Details	Sentence	
1	The State v Noutim Mausen (No 2) CR 596/2004, 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	
2	The State v James Yali (2006) N2989, Madang	Trial – mature aged offender raped 17-year-old sister of his de facto wife – conviction under Section 347(1).	12 years	
3	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	
4	The State v Joe Sime (2006) N4484, Buka	Guilty plea – offender raped his niece, aged 16 – threatened her with axe – genuine remorse – strong mitigating factor was conditions of detention – conviction under Section 347(2).	10 years	
5	The State v Alex Matasol Hagali (2006) N4491, Buka	Trial – offender threatened victim with bush-knife – 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 (2007) N5038, Kimbe	Trial – shortly before meeting the offender the victim, a young woman, had been raped by six other men – offender led her away on pretext that he was saving her, then raped her himself – conviction under Section 347(1).	12 years	
7	The State v Philip Nangoe (2007) N4923, Buka	Trial – middle-aged man raped a young mentally retarded woman – she had walked past the offender and his friend in the early hours of the morning, on a public road – offender went after her and raped her – conviction under Section 347(2).	15 years	
8	The State v Noah Mamari(2007) N5464, Buka	Trial – 19-year-old offender, 16-year-old victim – offence committed at 4.00 am after a party, when victim walking home with a friend – offender pulled her into the bush and raped her – conviction under Section 347(1).	6 years	
 9	The State v Douglas Jogioba (2007) N4085, Buka	Trial – schoolteacher raped 16-year-old student on school premises – two counts: first, digital penetration of vagina; second, penile penetration of vagina – victim young and naive – offender abused position of trust and authority to induce consent – conviction under Section 347(2).	10 years	
10	The State v William Tokon (2007) N5037, Kimbe	Guilty plea – offender, aged 18, raped young woman, in company of three other offenders – victim had been pack-raped the day before the offence was committed – conviction under Section 347(1).	8 years	
11	The State v Joe Taliva (2008) N3947, Madang	Guilty plea – offender, aged 20, raped 18-year-old friend, who was pregnant – planned offence – victim lured to secluded location by trickery – conviction under Section 347(1).	10 years	
12	The State v Eliza Gori & Timothy Aka (2008) N5464, Kimbe	Guilty pleas – male offenders aged 16, raped 17-year-old female cousin – planned offence – victim lured to secluded location by trickery – conviction under Section 347(1).	8 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

13. The head sentence will reflect the following mitigating and aggravating factors.

14. Mitigating factors:

•	the offender acted alone,
•	no torture,
•	no confinement,
•	no STD transmitted,
•	no other indignity,
•	no further trouble,
•	first-time offender,
•	not a large age gap between the offender and the victim.

15. Aggravating factors:

•	penile penetration,
•	no consent,
•	no provocation,
•	emotional impact on victim,
•	offender still does not accept responsibility for his actions,
•	no remorse,
•	not a youthful offender.

16. There appear at first glance to be more mitigating factors than aggravating factors. However, the aggravating factors are very strong. As the table of previous sentences shows, in rape cases it is very difficult for an offender to avoid a lengthy sentence if the matter is taken to trial. I uphold the position of the State and impose a sentence of 12 years imprisonment.

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

17. Yes, I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence the whole of the pre-sentence period in custody, which is 1 year, 4 months, 1 week, 3 days.

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

18. In a sexual offence case the presence or absence of reconciliation between the victim and the offender is, in my view, the major consideration when deciding whether to suspend any part of the sentence. The pre-sentence report shows that the victim has little interest in reconciliation. It was obviously a traumatic event, involving a serious betrayal of trust. The views of the victim are critical. There will be no suspension.

SENTENCE

19. Junior Anton Johannes, having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years	
Pre-sentence period to be deducted	1 year, 4 months, 1 week, 3 days	
Resultant length of sentence to be served	10 years, 7 months, 2 weeks, 4 days	
Amount of sentence suspended	Nil	
Time to be served in custody	10 years, 7 months, 2 weeks, 4 days	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender