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State v Lincoln [2014] PGNC 200; N5831 (15 August 2014)

N5831


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


CR NO. 166 OF 2010


BETWEEN


STATE


V


JOEL LINCOLN


Mendi: Ipang, J
2014: 12, 14 & 15 August


CRIMINAL LAW – Sentence – 5 Counts of rape pursuant to s. 347 (1) (2) Criminal Code Act – Guilty plea – expressed remorse – Pre sentence Report considered – sentenced to 9 years imprisonment for each counts – Total of 45 years – one transaction rule taken into account – Prisoner to serve only 9 years imprisonment.


Cases


State v Alex Matasol Hagali [2006] PCNC 188; N4491 (29/09/06)
State v Bernard Soeka Hela [2012] PGNC 228; N4788 (31/08/12)
Chris Awia v State SCR 55/2005
Saperus Yalibakut v State SC 890 (27/04/06)
Stanley Sabiu v State [2007] PGSC 24; (27/06/07)
State v Frank (No. 2) PGNC 88; N4700 (13/06/12)


Counsels


Mr. T. Ai, for the State
Mr. J. Kolowe, for the Offender


15 August, 2014


  1. IPANG, J: You have pleaded guilty to the 5 charges of rape pursuant to section 347 (1) (2) of the Criminal Code Act. I have convicted you and this is the decision on your sentence.

Brief Facts


  1. The brief facts for the purpose of your sentence are as follow: "that you on an unknown date between the 1st of November, 2009 and the 30th day of December, 2009 at the old compound in Mendi you sexually penetrated Junior Talio, Carlton Michael, O'Neil Benny, Frank Joe and Clay Nigel. At that time all the victims were between ages of 7 – 9 years old. You sexual penetrated the 5 victims by inserting your penis, one by one into the anus of the victims without their consent. Immediately after the commission of the offences, you threatened the victims with a bush knife and told them not to tell anyone.
  2. The Antecedent Report tendered revealed you have no prior convictions. In administering your allocutus you said, you were sorry for the parents of the victims, for the bad thing you did. You also said sorry to your parents for spoiling their name. You said sorry to court and asked this court to consider your age and education. You told this court, you left school after these offences.
  3. Mr. J. Kolowe of counsel for the prisoner requested for a Pre Sentence Report (PSR) for the prisoner and I have ordered for one. I will refer to the PSR later.
  4. The following were submitted to be the personal particulars of the prisoner:

Mitigating Factors


  1. The following are the mitigating factors favouring the prisoner:
  2. The following are the aggravating factors;
  3. The report compiled spoke favourably of the prisoner until the offence was committed. The prisoner was a normal son in the family with no bad behaviour. Both his parents are struggling to manage their children's school fees. There are seven (7) children and 2 or 3 adopted ones. The prisoner's mother holds a senior position in the Community being the Headmistress of Bui Iebi High School in Mendi. Because the prisoner's parents are not from Southern Highlands but from coast, this makes it difficult for them to succumb to compensation demands put up by the victims' parents. So, any compensation ordered by this Court will put more stress on the only salary of the prisoner's mother. The Pre Sentence Report did not recommend whether the prisoner is a suitable candidate for probation. Thus, leaving it up to this Court to decide on the prisoner's sentence.

Submission by Defence Counsel


  1. Mr. J. Kolowe of counsel for the prisoner submitted that the maximum sentence should be reserved for worst types of cases. Counsel says this present case does not fall under worst types of cases, therefore court should use its discretion by applying s. 19 and consider prisoner's sentence.
  2. Counsel further submitted that this court should adopt the approach taken by the court in State v Alex Matasol Hagali [2006] PCNC 188; N4491 (29th September, 2006). The brief facts are these; a 27 year- old man was convicted on two counts of rape of a young woman. The offender threatened the victim with a bush knife and pulled her into the bushes. He then sexually penetrated her without her consent, on two separate occasions within a short space of time. There was no aggravation and the offender was not convicted of rape in circumstances of aggravation. The offender was sentenced to 6 years imprisonment minus pre sentence period.
  3. In State v Bernard Soeka Hela [2012] PGNC 228; N4788 (31.08.12), the offender was convicted of 4 counts of sexual penetration contrary to s. 229A (3) of the Criminal Code Act (as amended). Offender was sentenced to 18 years imprisonment for each of the 4 counts. However, the court ordered that the sentences be served concurrently to the first count.

Submission by State


  1. Mr. T. Ai for the State submitted that the charge under s. 347 (1) (2) of the Criminal Code Act is serious and so the penalty to be imposed must reflect the seriousness of the charge. He cited the following cases in support of his submission.
  2. In Chris Awin v State SCR 55 of 2005 (unreported judgment (14/08/05). After trial before the National Court a sentence of 25 years was imposed. This is in relation to a charge under s. 229A (1) (2) (3) of the Criminal Code Act (as amended) On appeal to the Supreme Court, the sentence of 25 years was reduced to 18 years.
  3. In Saperus Yalibakut v State SC 890 (27/4/06). The appellant pleaded guilty to sexually penetrating a 11 year old victim contrary to s.229 A (1) of the Criminal Code Act (as amended). He was sentenced to 17 years. However, on appeal, his sentence was reduced to 14 years.
  4. The 5 (five) charges up on which the offender has been indicted with relate to offences committed pursuant to s.347 (1) & (2) of the Criminal Code Act, chapter 262. The cases referred to support his submission on penalty are the Supreme Court cases relating to offences committed under s.229 A (1) of the Criminal Code Act (as amended).
  5. There was many cases decided in the past which revealed that rape cases are serious and penalty for rape cases should reflect the seriousness of this offence, see State v Kunija Osake (2003) N2383; State v Peter Huli Haite (2003) N2383; State v Damien Mangawi (2003) N2419; State v Alphonse Dioro (2003) N2431.
  6. I have stated in State v Frank (No.2) PGNC 88; N4700 (13 June, 2012) at paragraph 26 of that judgement that:

"The extreme youth or old age of a victim, should be an aggravating factor. In addition, in principle, the younger the child and the greater age gap between the offender and the victim, the higher the sentence should be. However, the youth and immaturity of the offender must be taken into account in each case. All non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent. The planning of an offence indicates higher level of culpability than an opportunistic impulsive offense."


  1. In this present case, I have taken in to account the prisoner's personal particulars; the mitigating and aggravating factors into account. I sentenced the prisoner to 9 years imprisonment each for the 5 counts. Total sentence of 45 years. Applying the "one transaction rule", where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be served concurrent. I order that all sentences to be served concurrently to the 1st count which is only 9 years. The Prisoner is to serve only 9 years of imprisonment.

____________________________________________________________
Public Prosecutor: Lawyer for the state
Public Solicitor: Lawyer for the Prisoner

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