N2294

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1146 of 1999

THE STATE

-V-

ATTIOCK ISHMEL

ALOTAU: KANDAKASI, J.
2001: 10th & 12th October

CRIMINAL LAW – Sentence – Particular offence – Unlawful carnal knowledge of girl under age 16 – Charged reduce from a serious one of rape – Guilty plea to lesser charge – No expression of remorse and sympathy – No indication of preparedness not to re-offend – Effect of plea bargain – No need to further reduce penalty – Maximum prescribed sentence of 5 years imprisonment appropriate – Criminal Code s. 216.

Cases cited:
The State v. Sottie Apusa [1988-89] PNGLR 170. 
The State v. Peter Yawoma (unreported judgement 19/01/01) N2032.
The State v. Jason Dongoia (unreported judgement 13/12/00) N2038.

Counsel:
K. Popeu for the State 
D. Kari for the Accused

12th October, 2001

DECISION ON SENTENCE

KANDAKASI, J: 	You pleaded guilty to one count of unlawful carnal knowledge of a girl (named but for her protection simply referred to as "the victim") under the age of 16 contrary to section 216 of the Criminal Code ("the Code") on the 23rd of August 1999 at Siligu village, Milne Bay Province. That was a downgrade from an earlier charge of rape contrary to s. 347 of the Code. 

The evidence is that on the 23rd of August 1999, between 3:00 and 4:00 pm, the victim then 13 years old (a fact known to you at the time of the offence) went into her village bush in Siligu to collect firewood. You saw her and followed her. She managed to put some firewood into a bundle. You then came out of the bush in front of the victim and grabbed her. The victim tried to fight you off and escape but you over powered her and she was rendered helpless. You then pulled her down to the ground lifted her skirt up to her stomach, pulled your trousers zipper down, took your fully erected penis out, put it into the victim’s vagina and proceeded to have sexual intercourse with her. The victim felt a lot of pain and layed on the ground helpless as you continued to push your penis in and out of the victim’s vagina until you fully ejaculated. When you finished you put on your trousers and walked away.

Meanwhile, the victim found herself in a lot of pain with blood coming out of her vagina. She therefore went straight to the sea and washed herself and then returned to her house and reported what happened to her mother. Upon being informed of the incident, the mother called her brother (uncle to the victim) and informed him of the incident. 

The uncle of the victim went to your house and informed your wife of what you had done to the victim. Upon hearing of what you had done, your wife cried. The uncle also reported the matter to the ward committee. Eventually you were arrested and charged with rape. In your record of interview, you admitted to having committed the offence in the way set out above although you initially tried to make it look like it was the victim’s idea (see questions 50, 51, 52 and there answers).

Section 216 of the Code prescribes the offence with which you have been charged in these terms:

"216.	Defilement of girls under 16 and of idiots.
(1)	A person who—
(a)	has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or
(b)	…
Penalty:	Imprisonment for a term not exceeding five years.
(2)	It is a defence to a charge of an offence against Subsection (1)(a) to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of 16 years.
(3)	A person cannot be convicted of an offence under this section on the uncorroborated testimony of one witness."

As both Counsels submit, Brunton AJ (as he then was) in The State v. Sottie Apusa [1988-89] PNGLR 170 suggested the following guidelines (from the head notes) for sentencing in this type of cases:

"(1)	a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;
(2)	a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;
(3)	an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical carer and patient, and step-father/uncle relationships."

I cited that case in my own judgement in The State v. Peter Yawoma (unreported judgement 19/01/01) N2032, and added the following:

"… where the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed."

I added this factor in the context of an initial charge of rape being dropped as a result of a plea bargaining to a charge under s. 216 of the Code. No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation, if sentences prescribed under a lesser offence were further reduced.

But as I said in The State v. Jason Dongoia (unreported judgement 13/12/00) N2038:

"… the principle and factors generally governing sentencing such as prevalence of the offence, society’s response to that, whether the offender is a first time offender, whether it is a guilty plea and the particular circumstances in which the crime was committed are all relevant and do apply.

Of course, the purpose of sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration. Taking such factors into account will be in line with the intent of s. 19 of the Code.

A sentence lower than what is prescribed as the maximum may be given to an offender who pleads guilty, has no prior convictions, and commits the offence in circumstances, which are not serious…

Then certainly the community’s reaction to the crime should have an influence on the kind of punishment to be given. If the community in whatever form is calling for tougher penalties because of the prevalence of the crime and its impact on society, the case may warrant an higher penalty, that is up to the maximum prescribe by law."

In the present case, you forcefully had sexual intercourse with a small girl aged 13 at the time of the offence. She tried to resist or get away from you but you overpowered her and had sexual intercourse with her. She felt a lot of pain and was caused to bleed from her vagina. It also seems she was not a stranger to you, going by your free and easy identification of the victim and her uncle getting to your house and reporting what you did to the victim to your wife. This was possible because, you all come from the same village. You were initially charged with rape but that was dropped for your guilty plea. 

Rape carries a maximum of life imprisonment while the actual indictment against you carries a maximum of 5 years. By reason of that, you had your sentence substantially reduced already.

The victim by reason of her age, was a child. The international community has now come to formally collaborate against child abuse. What you did was in my view a worse form of child abuse. Adults like you should in the normal course of things protect the young and the weak instead of exploiting them as you have. The world and all normal thinking Papua New Guineans are calling for a protection of these group of our people so they can continue to allow our country to exist as a nation, not only for today but for the years to come. The number of sexual offences are on the increase and the kind of sentences the courts have been imposing to date appear not to be deterring would be offenders like you. I consider the time has come for the courts to be more responsive to the wishes of the community in the exercise of their sentencing power.

At the time of the offence you were married without any children. You were much older and stronger than the victim who was only 13 years old. It appears the forced sexual intercourse you had with her caused her a lot of pain and a scar to bear for the rest of her life. You had a wife to whom you could have turned to, to satisfy your sexual needs. Despite that, you picked on an innocent young child who appeared not to have had any sexual experiences before. You not only brought shame to yourself but the victim and your respective families. 

You have not expressed any remorse of any sort for the shame and pain you brought upon the victim and the society. You fail to impress upon me as a person who is genuinely sorry for what he has done and is seeking the pardon of the society. There is no evidence of you having paid compensation or taking any other step to correct the harm you brought upon the victim and her family and relatives. You have not shown any preparedness to pay any compensation. In the particular circumstances of this case and in the absence of any preparedness on your part to pay compensation and the absence of evidence of a source from which you could make such payments, I consider it inappropriate to order compensation in this case.

Society does not accept your kind of people and the conduct you engaged yourself in. In your allocutus, you expressed care and or concern for yourself only. The only thing going in your favour is the fact that you pleaded guilty to the charge. I am however, of the view that, that should not entitle you to any further reduction to the already reduced penalty you should have appropriately received possibly under a rape charge for the reasons I have earlier outlined.

I, of course, note that your medical condition has since the commission of the offence changed. You are now almost crippled. Your lawyer has argued for a sentence to be served out of prison to make it easy on the prison system. I asked for authorities for me to act on that submission but was not assisted in that regard in any way. So I am not persuaded sufficiently to take this factor into account in your favour. In any case, your medical condition should not be a deterrence or an excuse for this Court not to impose an appropriate sentence.

Since your arrest, I note you have been in custody for about two years two months and 5 days now. That I am obliged to take into account but only to have it deducted from the sentence I am shortly to pronounce based on the evidence. 

In the particular circumstances of this case, having due regard to what I have already said above, I consider an imposition of the maximum prescribed sentence of five years is appropriate. From that, the period of 2 years, 2 months and 5 days up to today which you have already spent in custody awaiting trial, shall be deducted leaving you with 2 years 9 months and 25 days to serve in custody from today. I therefore order that you be imprisoned at Giligili CIS to serve the remaining period in hard labour.
________________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor