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State v Mau [2003] PNGLR 22 (22 July 2003)

NATIONAL COURT OF JUSTICE

THE STATE

V

LOHORI MAU

WAIGANI: DAVANI J

16 and 22 July 2003

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea to lesser charge – Rape to Unlawful Carnal Knowledge – Facts in court depositions relied on to assist court in determining appropriate sentence – Further reduction of sentence not appropriate – Sentence at the maximum.

SENTENCING GUIDELINES- Plea bargaining.

Facts

The prisoner is charged with 2 counts of Unlawful Carnal Knowledge, charges laid pursuant to s 216(1)(a) of the Criminal Code Act. He pleaded guilty to both counts which occurred on 25.12.01 and 10.1.02.

The aggravating factors in relation to the first incident of Unlawful Carnal Knowledge were;

1. The prisoner pointed a bush knife at her;

2. He then forcefully removed her clothes, put her on the ground and had sexual intercourse with her.

In relation to the second count, the aggravating factors are that the victim was chased by the prisoner, then forcefully taken to his house where he had sexual intercourse with her.

Held

1. It is the law that when a charge is laid as a result of plea bargaining, that sentence should not be reduced again because it has been sufficiently reduced. This was held in the case of The State v Joseph Ping N2169 dated 17.12.01, a judgment by Kandakasi J. In that case, the prisoner pleaded guilty to a lesser charge of unlawful wounding from a possible attempted murder or grievous bodily harm charge as a result of plea-bargaining. The court there held that there was no need to further reduce the sentence and that the maximum penalty in relation to the charge should be imposed.

2. Sentence should be at the maximum which in this case is the 3rd category referred to in the case of The State v Sotti Apusa [1988–89] PNGLR 170 because not only were there aggravating factors but that the victim was mentally handicapped. Being mentally handicapped, the victim may have looked to the prisoner as a person to be trusted and that trust was clearly abused. (See also State v Attiock Ishmael CR 1146 of 1999 (unreported and unnumbered judgment of Kandakasi J. delivered in Alotau on 16.10.01)).

3. This court's decision is that the prisoner is sentenced to the maximum of 5 years on the first count and 5 years on the second count. Sentence shall be at 8 years concurrently. This sentence shall be reduced by the time spent in custody of 1 year, 6 months and 7 days.

Papua New Guinea cases cited

The State v Sotti Apusa [1988–89] PNGLR 170.
The State v Attiock Ishmael (CR 1146 of 1999 unreported and unnumbered judgment of Kandakasi J. delivered in Alotau on 16.10.01).
The State v Joseph Ping (2001) unreported N2169.

Counsel

C Mende, for the State.
P Kapi, for the prisoner.

22 July 2003

Davani j. The Prisoner is charged with 2 counts of Unlawful Carnal Knowledge, charges laid pursuant to s 216(1)(a) of the Criminal Code Act. He pleaded guilty to both counts which occurred on 25.12.01 and 10.1.02.

The female victim born on 12 September 1987 as confirmed by the Statutory Declaration of Karava Avata her mother declared on 5.2.02, was aged 14 when the crime was perpetrated upon her. The evidence is that she was born with an unusually large head and that as a result, she is mentally disabled to a certain extent.

The aggravating factors in relation to the first incident of Unlawful Carnal Knowledge were;

1. The prisoner pointed a bush knife at her;

2. He then forcefully removed her clothes, put her on the ground and had sexual intercourse with her.

In relation to the 2nd count, the aggravating factors are that the victim was chased by the prisoner, then forcefully taken to his house where he had sexual intercourse with her.
Overall, the aggravating factors about these offences are;

1. The age difference in that the prisoner was aged 27 and the victim 14 at the date the offence was committed;

2. the victim is mentally handicapped.

The mitigating factors are that;

1. this is the Prisoner's first offence;

2. his plea of guilty;

3. the remorse expressed by the Prisoner.

Some evidence on the depositions show that the victim may have gone willingly with the prisoner. Notwithstanding, this occurred because the prisoner's persistence and use of force on a mentally handicapped person. However, through plea bargaining, it appears the serious charge of rape was abandoned and charges of Unlawful Carnal Knowledge were preferred.

It is the law that when a charge is laid as a result of plea bargaining, that sentence should not be reduced again because it has been sufficiently reduced. This was held in the case of the State v Joseph Ping N2169 dated 17.12.01, a judgment by Kandakasi J. In that case, the prisoner pleaded guilty to a lesser charge of unlawful wounding from a possible attempted murder or grievous bodily harm charge as a result of plea-bargaining. The court there held that there was no need to further reduce the sentence and that the maximum penalty in relation to the charge should be imposed.

I adopt the same reasoning by His Honour and add further that here, a 14 year old mentally handicapped girl was sexually assaulted by the prisoner, a 27 year old man, a crime that is not only sickening but crushing for the victim. The age difference also demonstrates the fear and pain that may have been experienced by this victim.

Sentence should be at the maximum which in this case is the 3rd category referred to in the case of State v Sotti Apusa [1988 – 89] PNGLR 170 because not only were there aggravating factors but that the victim was mentally handicapped. Being mentally handicapped, the victim may have looked to the prisoner as a person to be trusted and which trust was clearly abused. (see also State v Attiock Ishmael CR 1146 of 1999 (unreported and unnumbered judgment of Kandakasi J. delivered in Alotau on 16.10.01)).

This court's decision is that the prisoner is sentenced to the maximum of 5 years on the first count and 5 years on the second count. Sentence shall be at 8 years concurrently. This sentence shall be reduced by the time spent in custody of 1 year, 6 months and 7 days.

The prisoner shall serve the reduced term of 6 years, 5 months and 3 weeks in hard labour.

Lawyer for the State: Public Prosecutor.
Lawyer for the Prisoner: Public Solicitor.