N5737
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 703 OF 2013

THE STATE

V

STANLEY TALAD

Madang: Cannings J
2014: 11 June, 11, 17 September

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 was aged 25 at the time, the victim, who has a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who went to a bushy area close to their house to bathe, he then dragged her to another place and penetrated her vagina with his penis, without her consent.

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 sexually transmitted disease, no other indignity, no further trouble, first-time offender, not a large age gap, remorse.

(3)	Aggravating factors: penile penetration, no provocation, emotional impact on victim, breach of trust.

(4)	A sentence of 11 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 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 Taliva (2008) N3947
The State v Junior Anton Johannes (2014) N5644
The State v Noutim Mausen (No 2) CR 596/2004, 24.08.05
The State v Stanley Talad (2014) N5646
The State v William Tokon (2007) N5037

SENTENCE

This is a judgment on sentence for rape.

Counsel

M Pil, for the State
S Inisi, for the offender

17th September, 2014 

1. CANNINGS J: This is a decision on sentence for Stanley Talad who has been convicted after trial of the rape of a young woman. The offender was aged 25 at the time, the victim, who has a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who went to a bushy area close to their house to bathe, he then dragged her to another place and penetrated her vagina with his penis, without her consent. There was no aggravated physical violence. Further details of the offence are in the judgment on verdict (The State v Stanley Talad (2014) N5646).

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. I apologise to the Court and to the lawyers for the time spent on my case. I have been in custody for a long time and I need to get back to the village to look after my father, who has difficulty doing physical work due to his Rugby injuries. I have garden crops to look after. The family depends on me to help them survive. The small house I was living in needs to be fixed up. This is the first time I have been in trouble with the law. I am a villager and I do not want to go anywhere else. I ask for the mercy of the court and to be put on probation.

PRE-SENTENCE REPORT

4. Stanley Talad is aged 26. He is from the Finschhafen area of Morobe Province but he has been living at Nobnob village in Madang Province, for a number of years, where the offence was committed. He is single. He is the first-born in a large family. He has never been to school. He has no formal employment record and has no regular source of income. His health is sound. He has no bad community record. His adopted father, who also lives at Nobnob, doubts the correctness of the conviction. He said that he knew that his son was having a relationship with the victim, but the victim's parents did not know about it, and that is why they reported the matter to the Police. He asked for leniency for his son, who is not a bad person, and he wants the opportunity for the two families to reconcile. The attitude of the victim's father is the opposite of the offender's father. He is disgusted by the offender's actions. The offender took advantage of his disabled daughter and he ought to be punished severely.

SUBMISSIONS BY DEFENCE COUNSEL

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

SUBMISSIONS BY THE STATE

6. Mr Pil submitted that a sentence of 12 years should be imposed as there was a serious breach of trust, the victim is a young, disabled and vulnerable person and a deterrent sentence was required.

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 (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.

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?

11. Before I fix a sentence I will consider recent sentences I have imposed for rape simpliciter, ie the crime of rape under Section 347(1) committed without circumstances of aggravation, as shown in the following table.

RAPE SENTENCES UNDER SECTION 347(1)

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 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	
5 	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	
6	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	
7	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	
8	The State v Junior Anton Johannes (2014) N5644, Madang	Trial – offender and victim of similar age – victim, a neighbour, dragged off a public road and into bush - no aggravated violence – no remorse - conviction under Section 347(1).	12 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

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

Mitigating factors:

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

Aggravating factors:

•	penile penetration,
•	no provocation,
•	emotional impact on victim,
•	took advantage of a young, disabled person,
•	serious breach of trust.

13. 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. This case has many similarities with the recent Madang case of Johannes in which the offender was sentenced after trial to 12 years imprisonment. The present offender has at least expressed remorse for his actions – whereas in Johannes the offender refused to acknowledge that he had done anything wrong and did not apologise to the victim. I sentence the present offender to 11 years imprisonment.

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

14. 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, 5 months.

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

15. 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, as demonstrated through the attitude of her father, has little interest in reconciliation. It was a traumatic event, involving a serious betrayal of trust. The views of the victim are critical. There will be no suspension.

SENTENCE

16. Stanley Talad, having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	11 years	
Pre-sentence period to be deducted	1 year, 5 months	
Resultant length of sentence to be served	9 years, 7 months	
Amount of sentence suspended	Nil	
Time to be served in custody	9 years, 7 months	
Place of custody	Beon Correctional Institution	

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