State v Ombi (No 2) [2004] PGNC 217; N2552 (30 April 2004)

N2552

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 342 of 2004

THE STATE

-V-

JULIUS OMBI
(No. 2)

POPONDETTA: KANDAKASI, J.
2004: 28th and 30th April

DECISION ON SENTENCE

CRIMINAL LAW – Sentence - Abduction and attempted rape of a relative – Breach of trust - Conviction after trial – First young offender – No physical injuries – No compensation or tangible demonstration of remorse – 9 years concurrent sentence imposed – Criminal Code ss.19, 348 and 350.

Cases cited:
The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.
Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04).
The State v. Thomas Waim [1995] PNGLR 187.
Bokum Umba v. The State (Unreported judgment delivered on 02/04/76) SC92.
The State v. Richard Amuna Koupa [1987] PNGLR 208.
The State v. Kevin Anis & Martin Ningigan,(Unreported judgment delivered on 07/04/03) N2360.
The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310.
Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.
The State v. Otom Masa (Unreported judgment delivered on 20/12/20) N2021.
The State v. Albert Monja [1987] PNGLR 447.
The State v. Tobby Tani (Unreported judgment delivered on 13/09/94) N2063.
The State v. Otto Paulus (Unreported judgment delivered on 22/05/02) N2241.
The State v. Joseph Minjihau (Unreported judgment delivered on 24/05/02) N2243.
The State v. Kevin Mariano (Unreported judgment delivered on 18/08/00) N1984

Counsel:
P. Kaluwin for the State
P. Kumo for the Accused

30th April 2004

KANDAKASI, J: The Court found you guilty on one charge of abduction and another of attempted rape respectively under sections 350 and 348 of the Criminal Code ("the Code").

The relevant facts are setout in full, in the judgment on verdict (The State v. Julius Ombi No.1) delivered on the 27th of this instant. For the purposes of sentencing however, I note the following facts:

• The victim was your blood cousin and was younger than you;
• You abducted her from a creek as she was trying to fetch water;
• After abduction and taking her into a bush, you tried to rape her through the anus;
• The victim did not suffer any physical injuries;
  

In addition to these facts, I note that, you denied the charges. This forced the victim to come into Court and testify against you. In that way, you forced her to recall and relive the ordeal and bad memories before her assailants and other strangers.

I also note and take into account that, you are about 17 years old and come from the Togaho village, here in the Oro Province. You completed your grade ten (10) and have progress to doing university through extension studies here. You are worried that this might be affected if sent to prison. This is however, a direct consequence of your own actions. If you did not commit the offence, this could not have become a problem. The law is clear, a latest statement of which is in The State v. Lucas Yovura (Unreported and judgment delivered on 29/04/03) N2366 in these terms:

"Indeed I note what the Supreme Court said in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to your family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

Further, I note that you are a young first time offender, which goes in your favour.

Nevertheless, it is necessary to consider this in the light of the recent development in the law too. A recent statement of the law is by the Supreme Court in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741. There, the Supreme Court endorsed the position taken by both the Supreme and National Courts judgments in The State v. Thomas Waim [1995] PNGLR 187; Bokum Umba v. The State, (Unreported judgment delivered on 02/04/76) SC92; The State v. Richard Amuna Koupa [1987] PNGLR 208; The State v. Kevin Anis & Martin Ningigan,(Unreported judgment delivered on 07/04/03) N2360; The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310 and Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.

These cases say that, youth cannot continue to be a mitigating factor in serious cases. Instead, strong deterrent sentences are required where the offence is prevalent. Youthful offenders should not receive special treatment unless there are exceptional circumstances, which warrant a lesser term of the prescribed maximum sentence. This is because of the numerous warnings in the past cases, particularly in serious cases like that of wilful murder, murder, rape and robbery. Despite these warnings, many youths in the age group 15 to 25 years are committing these kinds of offence.

The next factor is the fact that you pleaded not guilty. This forced the State to call witnesses to prove the charges against you. That also meant the Court had to sit to hear your case and determine your guilt or innocence, which in turn meant more time and costs to the State. The trial revealed that, you had no good basis to go to trial. Thus, you took the State and therefore the people of Papua New Guinea for an expensive ride without you bearing any of it. This is therefore a serious factor against you.

The other factor against you is that, you committed two offences in breach of a trust placed in you as a blood relative and in particular a cousin. You were also older than the victim was and did not act responsibly but use that to your advantage against your own blood.

Section 348 of the Criminal Code creates and prescribes a penalty of 14 years for the offence of attempted rape. As I noted in The State v. Otom Masa (Unreported judgment delivered on 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 judgment in that case was The State v. Albert Monja [1987] PNGLR 447. In that case, the offence was committed against a sleeping girl. The offender thought she was a person he knew and so therefore, she would respond favourably to her physical advances. The offender was intoxicated with alcohol at the time of committing the offence. Before imposing a sentence of four (4) years, the Court took into account the defendant’s background and other factors in his 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), it was a case of attempted rape of a small girl. The victim was asleep when the prisoner went and woke her up and carried her to his own house. There he tired to have sexual intercourse with her both through the victim’s vagina and through her anus without success because of the victim’s age. Nevertheless, he did manage to cause lacerations to the victim’s vaginal track as well has her anus and ejaculated. These caused the victim pain and cry of pain. I imposed a sentence of 6 years in hard labour. In retrospect, I consider that sentence was lenient.

In The State v. Tobby Tani (Unreported judgment delivered on 13/09/94) N2063, the victim was a stepsister to the prisoner’s wife. Prior to the commission of the offence, the prisoner was drunk. He had an 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 received a sentence of 4 years in hard labour.

The Court accepted that, the prisoner in that case, treated the victim that way because she was behind his wife having an affair with another man. However, the Court did not accept the 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 rape was prevalent and that strong deterrent sentences were called for.

On 22nd May 2002, I noted in The State v Otto Paulus (Unreported judgment delivered on 22/05/02) N2241 that, the offence of attempted raped has been on the increase and passed that stage, actual rapes. I was of the view then that, the kind of sentences imposed by the Courts up to that time were not deterring other would be offenders. I then imposed a sentence of nine (9) years on a guilty plea.

That was a case, in which the offender attempted to rape a married woman in breach of a de factor trust after tricking her into assisting her to locate her husband. As they were walking along a small bush track, the offender grabbed hold of the victim forcefully, laid her down on the Kunai grass, pulled her short and panties down, opened her legs and tried to push his penis into her vagina. He did not succeed despite several attempts as the victim struggle with him. On realizing he could not get what he wanted, he pulled out a pocketknife and stabbed the victim on the back of her head causing her to bleed heavily.

In all of these cases, the prisoners were mostly first time young offenders. They pleaded guilty to the charges against them. This is what distinguishes your case from that case. You pleaded not guilty necessitating a trial, which resulted in the guilty verdict. This forced the victim to recall and re-state before her assailant and other strange people what you did to her. She was therefore, forced to face and answer some embarrassing questions, which a young girl could not easily, and readily answer in normal settings. In addition to that, this meant that the Court had to spend more time unnecessarily particularly, when you had no good chance of success.

Also, except for the Otom Masa (supra) case, the offences in the above case were committed in breach of a de factor trust. In your case, however, you committed the offence against a close relative. This makes the commission of the offence by you in the way you did very serious. This is because, as I said in the course of submission, there is already so much danger for our women, girls and children in the streets. Therefore, the village and the family unit and relations are the only place our women, girls and children could turn to, for their protection. A commission of an offence against a member of one’s own community, village, family and other close relations destroys the remainder of any sense of security and hope for living by these class of our people.

Another relevant factor is that, the offence is prevalent, and is a prelude to rape or other unlawful sexual intercourses. This could mean that passed sentences have failed to deter others like you from offending. Hence, the Court must respond appropriately. Most of these offences are against very young children and girls. There is now a concerted effort both internationally and locally to protect the young from offenders like you. I acknowledged these efforts in the case of The State v. Joseph Minjihau (Unreported judgment delivered on 24/05/02) N2243.

Taking all of these factors into account, I consider a sentence of nine (9) years appropriate and impose for the offence of attempted rape.

As for abduction of the victim, s. 350 of the Criminal Code, creates the offence and prescribes its penalty of 7 years. I note this offence is usually committed in the course of pursuing another offence, such as rape, which is what you tried to commit. In these kinds of circumstances, varying sentences have been imposed.

The case of The State v. Kevin Mariano (Unreported judgment delivered on 18/08/00) N1984, is one of the latest case of abduction and rape following it. A gang abducted at gunpoint the victim in that case and packed raped her. The Court imposed a sentence of 5 years concurrent with the sentence for rape.

In the present case, you did not use any weapon to abduct the victim. In addition, you did not complete your intended illegal purpose. That does not mean that what you did is not serious. They are very serious. Given that, and the fact that the offence is prevalent, a deterrent sentence is called for. I consider a sentence of 4 years appropriate and impose it on you. I order that you serve that concurrently with your attempted rape sentence as this arose out of the same transaction, involving the same parties on the same day and place.

Of the total effective sentence of 9 years, I order a deduction of the periods you have spent in custody awaiting your trial and sentence. I further order that, you serve in hard labour the balance of your sentence at the Biru Correction Service. A warrant of commitment will issue forthwith in those terms.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor