State v Paulus [2002] PGNC 97; N2241 (21 May 2002)

N2241

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 51 of 2002

THE STATE

-V-

OTTO PAULUS

WEWAK: KANDAKASI, J.
2002: 13th and 21st May

CRIMINAL LAW - Sentence – Attempted rape of a married woman – Breach of de facto trust – Threats and actual force or violence used – Victim sustained knife wound injury – Prevalence of the offence of rape considered – Prisoner with a prior conviction – No evidence of compensation being paid or otherwise make it right with the victim and her relatives and husband – A strong deterrent sentence called for – Sentence of 9 years imposed – Criminal Code ss.348 and 19

Cases cited:

The State v. Otom Masa (20/12/20) N2021.
The State v. Albert Monja [1987] PNGLR 447.

The State v. Tobby Tani (13/09/94) N2063.

The State v. Joe Foe Leslie Leslie (07/10/96) N1556.

Counsel:

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

22nd May, 2002

DECISION ON SENTENCE

KANDAKASI J: You pleaded guilty to one charge of attempted rape of a married women (named but mentioned only as the victim for her protection) here in Wewak on the 15th of September 2001. That was contrary to section 348 of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore, accepted your guilty plea and convicted you on the charge as presented.

Address on sentence

I then asked you to address me on sentence and you said it was true that you committed the offence and asked for mercy from the Court. Your lawyer addressed the Court further on that. He submitted that you have pleaded guilty and co-operated well with the police and the other authorities up to this Court. This saved the State and the Court substantial time it could have taken if there was a denial. He also asked me to note you personal background and that this is only a case of attempted rape and not actual rape. Taking these factors into account he submitted that a custodial sentence of 6 to 8 years would be appropriate, without citing any authority for that.

The State made not submissions except to draw to the Court’s attention that you have a prior conviction for being in possession of an unlicensed firearm. Although that was not for an offence similar to the present one, it was still relevant to show that you have been in trouble with the law before. This is thus you second offence and conviction.

The relevant facts are not in contest. On 15th September 2001, you were at Dagua market close to the Council Chambers here in Wewak. That was about 3:00 p.m. The victim came and asked you if you had seen her husband after she had seen a woman who used to go around with her husband heading the Dagua way. The victim is known to you as the wife of a driver of a vehicle you were a crew of and she knows you as a crew of the vehicle her husband drives. You lied to her by saying her husband went with his wife in a vehicle and that he could have gone to the Kaparai or the Taitai Club. Her response was "I will follow them." When she said that you told her that you would accompany her and the two of you first went to the Kaparai Club. The victim’s husband was not there and the club was closed. So you proceed to the Taita Club using a short cut you knew.

When you reached the Taita Club, the victim’s husband was not also there. The victim told you that she would get to the ESWA Hall bus stop and go home. You however said to her that you should get out the Windjamer Hotel way. Fearing nothing because you were a work mate of her husband, she accepted that and followed you. On the way just before reach the Windjamer Hotel, she asked you to go quickly ahead incase her husband returns. She then went into the nearby bushes to urinate.

To her surprise you got to where she was and grabbed hold of her and forcefully laid her down on the Kunai grass that were there. At the same time you pulled her short and panties down and opened her legs and tried to push your penis into her vagina. You tried that several times without success as she called out and at the same time struggled with you. Realising that you could not get what you wanted, you pulled out a pocket knife and stabbed her on the back of her head causing her to bleed heavily. You then let her go and she said to you that she will go to her sister at Windjamer Hotel to change her cloths, which was a lie just to get away from you but you did not allow that. Instead, you said to her, both of you will follow the beach road. Before doing that you washed the blood off from her head and cloths. You then went onto the road and a police vehicle arrived and victim stopped it but they could not catch you that time because you ran away into hiding.

The victim was taken to the police station where she gave a statement. From there, she was taken to the hospital for medical examination and treatment. Her wound to the back was cleaned and sutured with 4 stitches and she was given 5 days supply of medicine and sent home. The relevant medical report confirms no penetration of the vagina but did confirm presence of whitish vulval deposits.

You were at large until arrested by police on 19th November 2001. You have been held in custody up to this day awaiting you trial and decision on sentence. You have therefore been in custody for a little over 6 months now.

The offence and sentencing trend

The offence of attempted rape with its penalty is created and prescribed by s. 348 of the Code. It prescribes a maximum penalty of 14 years.

As I noted in The State v. Otom Masa (20/12/20) N2021, there are not many reported cases on this kind of offence especially in relation to sentence. The only case at the time of my judgement in that case was The State v. Albert Monja [1987] PNGLR 447. In that case, the prisoner pleaded guilty to a charge of rape but was turned to not guilty to run the case as a "test case". After a trial, the defendant pleaded guilty to a charge of attempted rape following the court’s ruling that, the defendant could not be convicted of rape. The offence was committed against a sleeping girl whom the offender thought was a person he knew and that she would respond favourably to her physical advances. At the time the offender was intoxicated with alcohol. Before sentencing, the court took into account the defendant’s background and other factors in mitigation and said at page 448:

"However, against those things must be placed the indisputable fact that you committed a serious and all too prevalent crime against an innocent woman. This type of offence is regarded very seriously and calls for a significant custodial sentence. Women must be able to go safely and unmolested about their everyday activities. In my view, but for one final matter I am about to mention, a sentence of about four years imprisonment in addition to time spent in custody to date would be appropriate for this offence."

In the Otom Masa case (supra), the victim of the offence was a small girl who was also sleeping in her paternal aunt’s house. The prisoner went to that house and woke up the victim and carried her to his own house. Once at his house, he removed the victim’s cloths and his and he proceeded to attempt to have sexual intercourse with the victim through both the victim’s vagina and anus. However, because of the victim’s tender age, the prisoner was not able to effect complete penetration. In the process he caused bruises or lacerations to the victim’s vaginal track as well has her anus and ejaculated causing the victim to cry of pain due to the lacerations and or bruising. The prisoner said he has had no sexual experience before and was only trying to experience it with the victim.

I considered the case of Albert Monja (supra) as well as other sexual offences case, especially abduction and rape of under age or small girls and noted that since the sentences in those cases, rapes and attempted rapes have not declined. Instead they were on the increase. I therefore held that sentences have to be increased with a view to deterring other would be offenders from committing this kind of offences. Accordingly, I imposed a sentence of 6 years imprisonment in hard labour.

I conducted a further research for cases of sentences in attempted rape cases and I came across the case of The State v. Tobby Tani (13/09/94) N2063, a judgement by my brother Justice Injia. From the numbering, it is clear that that judgement was not in circulation until after my judgement in the Otom Masa case (supra). In that case, the victim was a stepsister to the prisoner’s wife. Prior to the commission of the offence the prisoner was drunk. He had and argument with his wife. That led to the prisoner locking his wife in the bedroom and kicking the victim who was outside that room. He then dragged the victim to the nearby field and asked her to have sexual intercourse with him but she refused. He unsuccessfully attempted to have sex with her. He therefore subjected her to a number of indecent and sexual indignities. He pleaded guilty to the charge and was sentence to 4 years in hard labour.

In arriving at that sentence in that case, the Court accepted that, the prisoner treated the victim that way because she was behind the prisoner’s wife having an affair with another man. However, the Court did not accept that prisoner’s treatment of the victim in the way he carried them out and found them inappropriate. The Court also noted that the offence of attempted rape and raped was prevalent and that strong deterrent sentences were called for.

I have also come across the judgement in The State v. Joe Foe Leslie Leslie (07/10/96) N1556. That was a serious case of armed robbery, rape and attempted rape. The victims were passengers in a vehicle who were held up, blind folded and stripped naked before the acts of rape and attempted rape were committed against them. The Court imposed a term of 4 years and 8 years or the attempted rape charge. I consider with respect, the court was too lenient in its approach to sentence in that case. In my view, the maximum of 14 years for attempted rape was called for but was not given. As I am not bound by judgements of the National Court, I am not bound to consider the sentence in that case for the purposes of a sentence in the present case.

Your case

In your case, I note that the only factors going in you favour is the fact that you have freely pleaded guilty, a position you maintained starting with the police and ultimately up to this Court. Against this are a number of factors operating against you.

Firstly, you were not a complete stranger to the victim. She was your fellow employee’s wife. She therefore trusted you when she came to you and asked for or about her husband. Instead of being honest with her, you lied to her and told her that her husband went off with another women. I find you did that to lay the foundation to get her to have a sexual intercourse with her. You then took her to two clubs in a vain search for the victim’s husband. You then tried to put you desires into action when she went into the bushes to urinate. As she was not able to allow you to satisfy your sexual desires, you used a knife to physically harm her.

The fact that you physically harmed her is the next factor operating against. You used a knife and inflicted an injury to the victim’s head. This is in addition to forcefully removing her cloths and attempting to have sexual intercourse with her. You therefore, indecently treated her.

The third factor against you is the fact that, you tried to intrude into a sacred relationship, that of a husband and his wife. You put to risk the victim’s marriage to her husband. Many families are now breaking up for all kinds of reasons. Many of them are mainly due to one of or both of the marriage partners having extra marital affairs with other persons. When the family unit is thus broken down, children become homeless and parentless. Society no long continues to function as a society when there are no family units. When this happens, the very essence of our nation is threatened.

Fourthly, you have a prior conviction for being in possession of an unlicensed firearm. Although, I note that, that conviction was for an offence other than attempted rape, or any other sexual offence, you are nevertheless not a first time offender. So the considerations that applying in favour of a first time offender have no application to your case.

Fifthly, there is no evidence of you either apologizing to both the victim and her husband. Along with that is the lack of any evidence that you have paid compensation to the victim and her husband and their relatives for the wrong you brought upon them. This is indicative of you failure to acknowledge that you have wronged these people. This was reflected in your own address on sentence. You only asked this Court to be merciful toward you. Mercy can only be asked for when an offender acknowledges his wrongs and makes rights the wrongs he or she has brought upon the victims of his or her conduct.

Last but not the least, the offence of rape is a very prevalent offence. It is being committed almost everyday through the country. There are continuous calls by the community for tougher penalties against offenders because they are very sick and tired of these offences. The view has been continuously expressed in many of the judgements of both the Supreme and the National Court that the offence of rape is a very serious violation of a woman’s’ right and dignity as a person. Women are no different from man except that they are women. Of course, you did not commit actual rape. You unsuccessfully attempted to do so. It is usually attempts at the first place that leads to the actual rape. So the same considerations apply except that there is no actual forced sexual intercourse. That is the only thing that makes the difference.

Finally, you almost achieved the act of rape but fell short of that because the victim was able to ensure that did not happen. You fell short of committing actual rape by reason of the fact that you were not able to secure a sexual intercourse with the victim.

These aggravating factors in my view out weigh any benefit your guilty plea may bring. You therefore deserve the maximum prescribed sentence of rape but I am reluctant to give you such a sentence. The reason for that is simple, this was a case of one on one attempted raped as opposed to a gang attack. It is also to avoid imposing a sentence that might amount to a big quantum leap. I consider a sentence of 9 years appropriate considering all of the above.

In the end therefore, I impose a term of 9 years imprisonment in hard labour. Of that I deduct the period of 6 months and 5 days you spent in custody awaiting your trial. That leaves you with a balance of 8 years, 5 months and 25 days yet to serve. I order that you serve that term in hard labour at the Boram CIS. A warrant of commitment will issue in those terms.
_____________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the State: The Public Solicitor