N2945

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR1641/2003

STATE

V

KAKOU PILAI

LAY J.; LORENGAU
2005: 10th and 24th November

CRIMINAL LAW ─ Attempted rape ─ Criminal Code s248 ─ Sentence ─ plea of guilty ─ offender 23 years of age ─ victim 21 years of age ─ no injury ─ threat with bush knife ─ attack terminated by intervention of villagers ─  no invasion of victim’s private parts ─ 2 years IHL, 11 months suspended on terms including compensation.

Cases Cited:
State v Tobby Tani (13/9/1994) N2063;
The State v Pascal Maya Omi (2005) N2808;
State v Otto Paulus (2002) N2241;
Public Prosecutor v. Don Hale [1998] SC564;
Daniel Kemi Mebil v State SC674.

Counsel:
P. Kaluwin for the State
L. Siminji for the Defendant

LAY J: On a plea of guilty the Defendant was convicted of one count of attempted rape contrary to s348 of the Criminal Code.

The facts put to the Defendant on his arraignment were that Barbara Kelenai and a friend went to the bush at Pelipowai, Lorengau to collect firewood. The Defendant went to them armed with a bush knife. The Defendant asked Barbara to be his girlfriend. She refused. The Defendant sent the friend away. Then the Defendant threatened Barbara with his bush knife and struggled with her to have sexual intercourse with her. While this was happening the villagers came and stopped you.

On his allocutus the Defendant said he understood the offence he had committed. He is sorry for what he has done; it is the first time he has done something of that nature. He asked for mercy and pointed out that he did not have sexual intercourse with the victim. He said his parents are old and living in the village and he is the eldest in the family.

Defence counsel submitted that the Defendant was 23 years of age at the time of the offence and the victim was 21 years of age. The Defendant is a single man with no formal education or employment. He comes form a family of 10, 5 of whom are sisters. He is a Catholic and living at Pelipowai. He will be 26 years of age on 20th June 2006. He was in custody for a period of 7 months then granted bail. He was re-arrested on in May 2005 and has been in custody for a total of 13 months.

In mitigation counsel submitted that there has been a guilty plea, remorse, he is a first offender, he should be treated as a young offender. Although the Defendant was armed the victim was not harmed.

At Defence counsels request a pre sentence report was requested.

In the case of State v Tobby Tani (13/9/1994) N2063 (Injia J as he then was) said:

"The offence of attempted rape under s348 of the Criminal Code is a serious offence for which the maximum punishment is 14 years imprisonment I should also point out that the offences of attempted rape or actual rape are serious offences for which a strong deterrent and punitive sentence is warranted. Whilst the maximum penalty for attempted rape is 14 years imprisonment, the maximum penalty for rape is life imprisonment. In John Aubuku v The State [1987] PNGLR 267, the Supreme Court said rape is a serious offence which attracts an immediate custodial sentence except in very exceptional circumstances. The Court said that for rape committed by an adult person without any aggravating or mitigating factors, a starting point is five years.

From this an analogy may be drawn in cases of attempted rape with aggravating features in that a strong punitive custodial sentence of imprisonment for a term. of years between 1 year 5 years is appropriate."

Since that case the sentences for rape have increased and the upper sentenced for attempted rape have also increased. The recent cases record a range of sentences for attempted rape from 12 months imprisonment wholly suspended on terms: The State v Pascal Maya Omi (2005) N2808 (Cannings J) where the attempt consisted of no more than pulling the victim to the ground and there was an immediate apology to the victim and prompt payment of compensation followed by co-operation with the police, a plea of guilty and genuine remorse, to cases where there are numerous aggravating circumstances such as State v Otto Paulus (2002) N2241(Kandakasi J) where the catchwords read:

"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".

Dealing first with the submission that the Defendant should be treated as a young offender, there was no basis submitted for this proposition. Generally a young offender is a person below the age of 19 years: Public Prosecutor v. Don Hale [1998] SC564. To treat a person 23 years of age at the time of the offence as a young offender would require some special circumstance such as evidence of slow mental development. I will not treat the Defendant as a young offender.

There are two principle aggravating factors in this offence. The first is that a weapon, a bush knife, was used to threaten the victim. That has to be treated as a serious aggravating factor because the use of a weapon has so much potential for actual injury to occur. The victim struggled and there was potential for even unintended injuries to occur.

The second aggravating factor is that the Defendant did not desist from his attack of his own will but because the villagers arrived to protect the victim. Without that intervention the Defendant may have eventually achieved his intended end. From the victim’s statement and the record of interview it appears the Defendant dragged the victim a little way into the bush and forced the victim to the ground. When the victim said to the Defendant "the village boys will come after you" the Defendant got up and said he was going after the girl he had sent away. Then he came back and threatening the victim with his axe saying "Now you will do exactly what I say". Just then two villagers arrived so the attack came to an end.

In respect of the submission that there is remorse, I note that there were no words from the Defendant saying sorry to the victim.

In the Defendant’s favour is that there is not a large age gap between him and the victim, he did not injure the victim apart from minor bruising and the only medical attention required was some pain killers. He did not tear the victim’s clothes. There was no actual invasion of the victim’s private parts. It is not as serious a case as Daniel Kemi Mebil v State SC674 (Injia DCJ, Kirrowom and Gavera-Nanu JJ) where those aggravating features were present and the Supreme Court dismissed an appeal from a sentence of 6 years. The Defendant was interviewed by police 10 days after commission of the offence and fully co-operated with them. It is said that he has a prior conviction for theft in 2001 for which he was fined K200. No certificate of conviction has been produced. I will treat him as a first offender. He pleaded guilty saving the court’s time and the victim the embarrassment of giving evidence.

In my view the appropriate sentence in this case is 2 years imprisonment less pre trial custody.

The next issue is whether there are circumstances which warrant the suspension of part of the sentence. The first circumstance is that there is no functioning CIS facility here at Lorengau at the present moment and the Police Lock-up, not designed for long term accommodation of prisoners, is over crowded. A sentence should be served in a proper placed of detention. The prisoner has served 13 months pre sentence custody so that the remaining sentence to serve is 11 months. That would involve the State in the expense of transporting the Defendant to Lae or Kavieng for a period of significantly less than 12 months when remissions are taken into account.

The pre sentence report recommends the Defendant for probation. The victim has suggested that a good behaviour bond be imposed. This is an important consideration and indicates that the victim is not afraid to have the Defendant in the community.

Having considered these matters I will suspend the 11 months remaining on the custodial sentence upon the Defendant entering into his own recognizance to:

1.	Keep the peace and be of good behaviour for a period of two years;
2.	To attend church services every Sunday;
3.	To perform at least 6 hours of community work each week of a nature approved by and under the supervision of a Community based Correctional Services Officer;
4.	Attend for counselling with the priest at Patu by appointment with the priest at least one day per week for a period of not less than three months;
5.	Pay the sum of K500 in compensation to Barbara Kilewei on or before 25th November 2007 witnesses by a Community Based Corrections officer;
6.	If called on, he shall appear and receive judgement in respect of his service of the portion of the sentence suspended.

Lawyers for the State			:	Public Prosecutor
Lawyer for the Defendant		:	Public Solicitor