State v Samban [2004] PGNC 169; N2598 (25 March 2004)

N2598

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1449 of 2003

THE STATE

-V-

NASON SAMBAN

VANIMO: KANDAKASI, J.
2004: 9th and 25th March

CRIMINAL LAW – Sentence – Particular offence – Unlawful carnal knowledge of girl under age 16 – Charge reduced from a serious one – 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 judgment 19/01/01) N2032.
The State v. Attiock Ishmel (12/10/01) N2294.
The State v. Jason Dongoia (unreported judgment 13/12/00) N2038.
Rudy Yekat v. The State (22/11/00) SC665.

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

DECISION ON SENTENCE

25th March, 2004

KANDAKASI, J: You pleaded guilty to a charge of unlawful carnal knowledge of a girl (named but for her protection simply referred to as "the victim") under the age of 16 on 17th July 2003, here in Vanimo, Sandaun Province. The charge was under s.216 of the Criminal Code, which was a downgrade from an earlier charge of rape contrary to s. 347 of the Code.

Facts

The victim in this case was at the Pewi corner road market. Whilst there, she had a nature call. She went therefore, along the main road up to the junction leading to the Pewi Beach settlement and answered the call. As she was returning, a Jude Kama met her. That person raped her or forcefully had sexual intercourse with her.

After the rape on her, by Jude Kama, she tried to continue on her way, when you approached her. You threatened to cut her with a knife and then proceeded to grab her hands and pulled her further into the bushes. She shouted for help. That caused you to quickly force her down on the ground, removed her short and pants, lifted her legs up and forced your penis into her vagina. She felt a lot of pain and wetness in her vagina. She soon realized that she was bleeding heavily. You then told her that, you had broken her already and fled the scene. Meanwhile, the victim stopped her bleeding with her short.

She managed to reach the main road again. There, she met her aunt and reported what had happened to her, crying as she described what you and before that, Jude Kama did to her.

In your record of interview, in questions and answers 17, 19 – 27, you said to police that both you and Jude Kama were at the market. You then left Jude and went to the house. Later you returned and looked for Jude and asked some mothers who were at the market. They indicated the way he had gone. So you took a shortcut road and eventually came to a spot where Jude and Kama were having sex. After they finished, you saw them walking away in different directions, with the victim taking the direction where you were standing and she came direct into you. You then asked her to have sex with you and she agreed. So you went ahead and had consensual sexual intercourse with her. After you finished, you went your separate ways.

Other evidence on file however, is consistent with the victim’s statement, in terms earlier noted. It is therefore, clear to me that, this was a clear case of rape. However, I believe that through a plea-bargain, your charge came down from a possible charge of rape to the lesser charge of unlawful carnal knowledge.

Section 216 of the Criminal Code creates the offence of unlawful carnal knowledge and prescribes its penalty 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."

Brunton AJ (as he then was) in The State v. Sottie Apusa[1] 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 judgment in The State v. Peter Yawoma,[2] and added the following:

"... [W]here 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 dropping to a charge of unlawful carnal knowledge because of a plea-bargaining. In the subsequent case of, The State v. Attiock Ishmel,[3] I stated the reasons for this inclusion as follows:

"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:[4]

"... [T]he 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."

Bearing this in mind, I imposed the maximum prescribed sentence of 5 years in hard labour. In so doing, I noted that, it was a case of the prisoner forcefully having sexual intercourse with a small girl aged 13 at the time of the offence. She tried to resist or get away from her assailant but the assailant overpowered her and had sexual intercourse with her. She felt a lot of pain. She bled from her vagina. It also seemed that, the victim was not a stranger to the prisoner. The charge initially preferred against the prisoner was rape but that later dropped for his guilty plea to the lesser charge.

I observed in that case, and I do so here again that rape carries a maximum of life imprisonment as its penalty, while the indictment against you carries a maximum of 5 years. Because of that, you had your sentence substantially reduced already.

The victim due to her age was a child. The international community as well as our own community has repeatedly called for protection of children given their vulnerability. 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 this group of our people so they can continue to allow our country to exist as a nation, not only for today but also, 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.

I note that you are a much older person than the victim who was in fact 12 years at the time of your rape on her. You were therefore, much older and stronger than the victim was. She had just came out of an earlier violent sexual attack on her by another older person who I take was your friend or relation going by the evidence on file. You showed no mercy or sympathy toward her. She was in a condition that called for sympathy and assistance and not certainly another attack of the same kind.

Further, the evidence suggests that, your sexual attack of the victim caused her to bleed from her vagina. The evidence also shows that your forceful sexual intercourse caused her a lot of pain. She will no doubt bear a scar if not physically, at least psychologically for as long as she lives.

In your address on sentence, you told the Court, this is the first time you have committed an offence and said sorry to God, the victim and the Court. You then asked for mercy and probation. In addition to these, your lawyer has informed the Court of your personal and family background. This includes the fact that you are a single person, aged about 19 years. You were a resident of the Pewi settlement here in Vanimo after having originally come from Kaminabit village, Angoram, East Sepik Province. You are educated up to high school level education and that you are the eldest child in your family, where your parents are still alive.

For the purposes of determining an appropriate sentence for you, I take into account all of these and note that, there is no evidence of you saying sorry to the victim and her family directly and making it right with them. 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 on your part to pay any compensation.

The Supreme Court in Rudy Yekat v. The State[5] had a similar situation. There, the Court observed and said:

"There is no evidence of the Appellant compensating the victim and or her family in any way for the pain and suffering he brought upon them. He says sorry but what value does a mere utterance of sorry has if it is not accompanied by anything tangible to correct the wrong brought upon the victim and her family and relatives. In our view such utterance are mere utterances, which do not have any real meaning but spoken only in a bid to plead for mercy."

I find this also to be the case, in your case. It means therefore that, your mere utterances of sorry in Court to the exclusion of the very people you have offended against is meaningless and of no value to you.

The only thing going in your favour is the fact that, you pleaded guilty to the charge and being a first time offender. However, I am of the view that the factors in aggravation far outweighed these factors. You are fortunate that rape is not the charge against you. If it was, I could have easily imposed a sentence in excess of 10 years. I am hence, of the view that, you should not receive any more reduction on the penalty you should have in fact received. This is because, you already have a very substantial reduction from a possible life imprisonment to 5 years only, thanks to the system of plea-bargaining that is recognized and allowed for under our Constitution.

Accordingly, I impose a sentence of 5 years in hard labour. I note you have been in custody for a period of 8 months to date. That I am obliged to take into account and have it deducted from the head sentence. Accordingly, I deduct that period from the sentence of 5 years, leaving you with the balance of 4 years and 4 months to serve. I order you to serve that period in hard labour at the Vanimo Correction Services.
_____________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: The Public Solicitor

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^[1] [1988-89] PNGLR 170.
^[2] (19/01/01) N2032.
^[3] (12/10/01) N2294.
^[4] 13/12/00) N2038.
^[5] (22/11/00) SC665.