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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 368 0F 2005
THE STATE
V
JAMES YALI
MADANG: 17, 19 JANUARY 2006
CANNINGS J
SENTENCE
CRIMINAL LAW – sentencing principles for rape – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after trial – distinction between rape simpliciter, Section 347(1), and rape in circumstances of aggravation, Section 347(2) – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment – starting point – identification of relevant considerations – sentence of 12 years.
The offender was convicted of the rape of his de facto wife’s sister. He was aged 41 and a member of the National Parliament at the time of the offence. The victim was aged 17 years. The offender acted alone. No weapons were used. There was no aggravated physical violence. The victim was not physically injured. There was a violation of trust. The offender did not surrender but cooperated with the police to a certain extent. He has caused trouble since the incident. There was an exchange of a substantial amount of money following the incident but this fell short of being regarded as compensation. There was a high degree of sexual indignity. He has not expressed remorse. He has one previous conviction, for assault. He is not a youthful offender. The offence was committed while he was a member of the Parliament and Governor of his province.
Held:
(1) This was a serious case of rape under Section 347(1) of the Criminal Code.
(2) As no circumstances of aggravation were charged in the indictment the maximum penalty to which the offender could be sentenced was 15 years imprisonment.
(3) The court should use 10 years imprisonment as a starting point when sentencing under Section 347(1), then consider all mitigating and aggravating circumstances.
(4) In the present case there were more strongly aggravating circumstances than strongly mitigating circumstances and it was proper to sentence the offender above the starting point.
(5) The offender was sentenced to 12 years imprisonment.
Cases cited:
The following cases are cited in the judgment:
Daniel Kemi Mebil v The State (2004) SC749
Didei v The State [1990] PNGLR 458
James Mora Meaoa v The State [1996] PNGLR 280
John Aubuku v The State [1987] PNGLR 267
John Jaminan v The State (No 2) [1983] PNGLR 318
Lawrence Hindemba v The State (1998) SC593
Manu Kovi v The State (2005) SC789
The State v Alphonse Apou Dioro (2003) N2431
The State v Biason Benson Samson (2005) N2799
The State v Damien Mangawi (2003) N2419
The State v Dibol Petrus Kopal (2004) N2778
The State v Donald Angavia & Others (2004) N2590
The State v Donald Poni (2004) N2663
The State v Eddie Trosty (2004) N2681
The State v Eki Kondi and 4 Others (No 2) (2004) N2543
The State v Ezra Hiviki (No 2) (2004) N2548
The State v Flotyme Sina (No 2) (2004) N2541
The State v Gary Sasoropa and 2 Others (No 2) (2004) N2569
The State v George Taunde (2005) N2807
The State v Henry Nandiro (No 2) (2004) N2668
The State v James Yali (2005) N2931
The State v James Yali (2005) N2988
The State v John Ritsi Kutetoa (2005) N2814
The State v Julius Ombi (No 2) (2004) N2552
The State v Junior Apen Sibu (No 2) (2004) N2567
The State v Kemai Lumou (2004) N2684
The State v Komai Balal (No 2) (2005) N2821
The State v Kunija Osake (2003) N2380
The State v Luke Sitban (No 2) (2004) N2566
The State v Michael Waluka Lala, CR No 215 of 2004, 08.06.05, unreported
The State v Miseal Butemo Jiregari [1984] PNGLR 62
The State v Nick Teptep (2004) N2612
The State v Noutim Mausen (No 2), CR No 596 of 2004, 24.08.05, unreported
The State v Pais Steven Sow (No 2) (2004) N2588
The State v Pascal Maya Omi (2005) N2808
The State v Penias [1994] PNGLR 48
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Huli Hahe Haite (2003) N2383
The State v Peter Kaudik [1987] PNGLR 201
The State v Peter Lare (2004) N2557
The State v Seyo Aroko (2005) N2822
The State v Thomas Madi (2004) N2625
The State v Titus Soumi (2005) N2809
The State v Togey Bou (1996) N1530
Abbreviations:
The following abbreviations appear in the judgment:
AIDS – Acquired Immune Deficiency Syndrome
BSc – Bachelor of Science
© – copyright
CID – Criminal Investigations Division
CJ – Chief Justice
CM – Chief Magistrate
DCJ – Deputy Chief Justice
DPI – Department of Primary Industry
HIV – Human Immunodeficiency Virus
J – Justice
OIC – officer-in-charge
PMV – public motor vehicle
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PSC – Police Station Commander
SENTENCE
This was a judgment on sentence for rape.
Counsel:
N Miviri for the State
G J Sheppard and N Eliakim for the offender
CANNINGS J:
INTRODUCTION
This is a decision on sentence for a man convicted of the rape of his de facto wife’s 17-year-old sister.
BACKGROUND
On 13 December 2005 the offender, James Yali, was convicted of the rape of a young female, contrary to Section 347(1) of the Criminal Code. The offence was committed at Madang town on the night of 14 October 2004. The offender collected the victim at the house he owned, and that she lived in, in his vehicle, a single-cab utility. She went with him reluctantly. She thought that they were going to Madang Resort for a dinner being held as part of the National Governors’ conference. However, he drove through various parts of Madang town, stopping at Smugglers Inn and at his office at the Madang Provincial Government Offices before driving out along the North Coast Road. He stopped at Mis, turned around and came back to his office, parking the vehicle just outside his office door. He forced her into his office then penetrated her vagina without her consent. That was the act that constituted the offence of rape. He then brought her back to the house at the back of Madang Butchery from where he had picked her up. He was aged 41 at the time of the offence. The victim was 17 years old, attending school in Madang. She was the sister of his de facto wife. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v James Yali (2005) N2988, National Court, Cannings J).
RELEVANT LAW
The offender was charged with and convicted of rape under Section 347(1) of the Criminal Code.
Section 347 (definition of rape) of the Criminal Code states:
(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.
"Circumstances of aggravation" are defined by Section 349A (interpretation) of the Criminal Code, which states:
For the purposes of this Division [Division V.7 (sexual offences and abduction)], circumstances of aggravation include, but [are] not limited to, circumstances where—
(a) the accused person is in the company of another person or persons; or
(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or
(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or
(d) the accused person confines or restrains the complainant before or after the commission of the offence; or
(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
(f) the accused is a member of the same family or clan as the complainant; or
(g) the complainant has a serious physical or mental disability; or
(h) the complainant was pregnant at the time of the offence; or
(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).
The present Sections 347 and 349A were introduced by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, Sections 17 and 20. The new law commenced operation in April 2003. (See The State v James Yali (2005) N2931, National Court, Cannings J (ruling on evidence.) Prior to the amendment the maximum penalty for all kinds of rape was life imprisonment.
In the present case the rape charge was contained in count 2 of an indictment that contained four charges. The offender was acquitted of counts 1 (abduction) and 3 (abuse of trust). He was found guilty of count 4 (sexual assault) but no conviction was recorded as that charge was expressed as an alternative to count 2. Count 2 alleged that the offender sexually penetrated the complainant without her consent. No circumstances of aggravation were alleged.
A threshold issue in this case is: what is the maximum penalty? Is it 15 years imprisonment? Or imprisonment for life? The court has received competing submissions on this issue, which will be outlined below.
Whatever the maximum penalty is, the court has a considerable discretion whether to impose it by virtue of Section 19 of the Criminal Code. For example:
ANTECEDENTS
The offender has one prior conviction. On 3 September 2004 he was convicted by the District Court (Numapo CM presiding) at Madang of one count of unlawful assault under Section 6(3) of the Summary Offences Act. He was sentenced to 12 months imprisonment, all of which was suspended on condition that he enter into a good behaviour bond for 12 months and pay a surety of K1,000.00.
ALLOCUTUS
I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment.
He indicated that he did not wish to say anything.
SUBMISSIONS BY DEFENCE COUNSEL
Mr Sheppard submitted that the maximum sentence to which the offender is liable is 15 years imprisonment. It is not open to the court to impose a sentence any longer than that, as the conviction has been entered under Section 347(1), not 347(2). No circumstances of aggravation were pleaded in the indictment. It would be unfair, and unlawful, to now allow such matters to lift the ceiling from 15 years to life imprisonment.
The court should therefore work within the range of a sentence of zero to 15 years imprisonment. In determining what sentence should be imposed within that range the court should regard the weightiest factor as the degree of violence involved in the commission of the offence. Rape is often described, accurately, as a crime of violence. It follows that in determining the seriousness of a rape, the degree of violence involved is the most important criterion. In this case, there was next to no violence committed. This was borne out by the medical evidence. The victim did not suffer bruising or abrasions. The only sign of what might be regarded as physical harm was a redness in the victim’s vagina, of which one of the doctors gave oral evidence. This case falls right at the bottom level of the scale of violence. The offender did not use a weapon.
Mr Sheppard asked the court to consider that this is the first offence of this nature that the offender has committed.
The court should also consider the offender’s previous good record, both in terms of his criminal record and his record as a citizen. He is married to Angela Yali. He has nine children all but one of whom are dependent on him. They are aged from 22 to two years of age. He has a reasonably good education. He graduated from Unitech Lae with a BSc in the early 1980s. He was OIC of parks and gardens for Madang town. He later developed cocoa plantations on the North Coast of Madang Province. In 1990 he was executive officer to the Madang Provincial Government. In 1991 he was OIC of breeding at the Cocoa Institute in Rabaul. In 1992 he was an unsuccessful candidate at the general election for the National Parliament. In 1993 he worked as a scientific officer with the DPI at Wewak. From there he was appointed as Madang town manager, a position he held until resigning to contest the 1997 general election, at which he was again unsuccessful. After 1997 he was re-appointed as the Madang town manager, a position he held until 2002 when he won the seat of Rai Coast at the general election. Soon afterwards he was elected as the Governor of Madang Province, after the provincial member was appointed as a Minister. He therefore has an outstanding history of public service.
As to whether any restitution or compensation had been effected by the offender, Mr Sheppard made no submissions except to say that the court should make of the evidence what it will.
The offender had co-operated with the police to a certain extent. He made himself available for the police interview. He did not attempt to evade the police. He stopped and faced the music.
There was an element of provocation or aggravation of the offence on the part of the victim. She failed to take the opportunity to leave the offender after he had picked her up at the house. They stopped at Smuggler’s Inn. The court has found that she had the chance to take off there. Then they went to the offender’s office at the Madang Provincial Government building. She was left outside in the vehicle but failed to leave the vicinity. The police station was not far away.
The court should also take account of the effect of a gaol term on the offender’s family. A lengthy gaol term will lead to a loss of office and a source of income for the offender and his large family. His job and income will be obliterated. The effect on the family will be disastrous.
Mr Sheppard asked the court to use five previous cases as a guide for sentencing. They are summarised in table 1.
TABLE 1: SENTENCES FOR RAPE –
CASES REFERRED TO BY DEFENCE COUNSEL
| No | Case | Details | Sentence |
| 1 | Planned pack rape of 17-year-old student – threatened with bush knife – no serious physical injuries – starting
point for pack rape is 8 years. | 12 years | |
| 2 | Offender was a police officer who raped a married woman suspect who had been detained in custody, at Banz police station – he
threatened her with a knife – his application for leave to appeal against sentence was refused – sentencing guidelines
set out. | 10 years | |
| 3 | Offender was a police officer attached to the sexual offences squad at the CID office at Boroko Police Station – at the police
station he raped a 13-year-old girl who had come to complain of being raped by another person – serious violation of trust.
| 8 years | |
| 4 | Offender was the member for Yangoru-Saussia in the National Parliament – convicted of four counts of rape of a 16-year-old schoolgirl
– offences committed while offender in Mt Hagen for a political convention. | 4 years on each count, to be served concurrently | |
| 5 | Offender took the victim, his cousin-sister, to a disco at Mt Hagen – on the way home he asked her to have sex with him and
when she refused he punched her, forced her to the ground and penetrated her – his appeal against conviction was upheld on
the ground that the trial judge failed to warn of the danger of accepting the uncorroborated evidence of the complainant –
no appeal against sentence. | 5 years |
Mr Sheppard suggested that the above cases demonstrate the point that the critical factor in determining a sentence for rape is the amount of violence involved. There is inevitably a range of sentences within which a penalty ought to fall. A rape involving a high degree of violence should attract the strongest disapprobation. If there is minimal violence, such as in the present case, a lighter penalty is warranted.
I asked Mr Sheppard for his submissions on two other issues. First, what is the relevance of the fact that the offender was a member of the Parliament at the time of the offence? Secondly, was there a breach of trust that should be taken into account as an aggravating factor?
Mr Sheppard submitted that the offender’s status as a member of the Parliament was a mitigating, not an aggravating, factor. He has a strong record of community service. The commission of the offence did not involve any abuse of his position as a member of Parliament. It is not as if he raped a member of his staff. The victim was not a person under his control or within his sphere of political influence. It should therefore not be held against him that he is a member of the Parliament.
There was no relationship of trust breached. The court has already decided, by acquitting the offender of count 3 of the indictment (abuse of trust), that there was no relationship of trust in the relevant sense. Mr Sheppard repeated the submission he had made on verdict, that the relationship between the offender and the victim was that he was her big sister’s boyfriend. He was just the sort of person she should not have trusted. To be in a relationship of trust the offender would need to be in the position of her counsellor, basketball coach, physiotherapist, doctor, schoolteacher or someone similar.
In conclusion Mr Sheppard returned to his opening point: the maximum penalty is 15 years imprisonment. It is important to distinguish between the terminology ‘circumstances of aggravation’ and ‘aggravating circumstances’. ‘Circumstances of aggravation’ are things that are prescribed by Section 349A. One or more have to be charged in the indictment, and then proven to exist beyond reasonable doubt, before having the effect of increasing the maximum sentence. ‘Aggravating circumstances’ are things that – like ‘mitigating circumstances’ – the court is entitled to take into account when fixing a sentence within the available range; which in this case is from zero to 15 years imprisonment.
SUBMISSIONS BY THE STATE
Mr Miviri began by emphasising that everyone in the courtroom has been born of a woman who was once a girl or a young female, like the victim in this case. The law of rape exists to give special protection to women and girls. The Constitution of Papua New Guinea demands that our womenfolk be protected. The sentence of the court must reflect and enforce that principle. Females must be protected from males of similar inclinations to those of the offender. He cited the dicta of Injia J, as he then was, in The State v Penias [1994] PNGLR 48 to reinforce this point:
Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the offender, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of the pervasive conduct of men like the offender. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence.
At the outset the court must consider one of the most important features of this case: that the offender is a member of the Parliament and, indeed, the Governor of the Province in which he committed his crime. He is a leader and his conduct fell below the standard expected of a leader. The sentence must reflect that. The offence took place in the office of the Governor. It is not his personal office. It is the Governor’s office. He degraded that office by committing the offence there.
The offender was a member of the legislature that decided in 2002 to pass important amendments to the Criminal Code strengthening the law on sexual offences against women and children. By passing those laws the Parliament was expressing the abhorrence of society for such offences. (I raised with Mr Miviri when he was making his submission that the 2002 amendments may have been made in the early part of 2002 when the offender was not in the Parliament. This is, in fact, the case. The Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002 was made on 28 March 2002. The offender would have become a member of the Parliament on 30 July 2002.)
The offender was at the time a married man who also had a second, de facto, wife. There was no need for him to do what he did.
Mr Miviri submitted that the relationship between the offender and the victim was a relationship of trust. He violated it and that is a serious aggravating factor. The Constitution recognises the importance of custom, which recognises a person’s extended family. The victim was, in effect, the offender’s sister-in-law. The offender was living in a de facto relationship with the victim’s sister. He was providing shelter to the victim and her family. Therefore she was entitled to trust him. The Supreme Court indicated in James Mora Meaoa v The State [1996] PNGLR 280 (Kapi DCJ, Los J, Doherty J) that the way an offender conducts himself can give rise to a relationship of trust; and that if such a relationship is violated, it is an aggravating factor. In that case the offender was the operator of a dinghy travelling from Port Moresby to Lavare, Gulf Province. The victim, a 12-year-old girl, was a passenger. The dinghy capsized. The offender helped the victim, a non-swimmer, to shore. Then he raped her, leaving her to fend for herself. She was then raped by two other men and suffered horrific injuries. The offender’s appeal against conviction and sentence of 14 years imprisonment was dismissed.
Another aggravating factor in the present case is that the offender did not plead guilty. The victim was required to relive her ordeal and reveal intimate details of what happened in public, before a packed courtroom. On a number of occasions during the course of giving evidence she broke down, sobbing. The Supreme Court indicated in Meaoa that that is a relevant factor for sentencing purposes.
At the time of the offence the victim was a 17-year-old schoolgirl. The offender was a mature aged man with a distinguished public record who had risen to become governor of his province. He abused the position he was in. Then after he gratified himself he discarded the victim like a piece of wrapping at the shop.
He aggravated his crime by paying money afterwards to try to conceal it. That was an attempt to defy the law. A wrong is always a wrong and will never be made right with another wrong, Mr Miviri submitted.
On the issue of the maximum penalty, Mr Miviri submitted that it was life imprisonment. There were clearly circumstances of aggravation. The court should sentence the offender under Section 347(2), not 347(1). The sentence must reflect the evidence. The court should use 15 years as a starting point and work upwards, given the circumstances of aggravation.
Mr Miviri concluded by submitting that the court should impose a sentence in the order of 18 to 25 years imprisonment.
OTHER MATERIALS
In this case there was no victim impact statement of the sort allowed to be considered under Section 21A of the Criminal Code. Nor was there a pre-sentence report prepared by the Community Based Corrections and Rehabilitation Service. Neither the prosecutor nor defence counsel requested or provided these materials. These are desirable but not necessary materials for the court to consider. Their absence in this case is of no consequence.
DECISION MAKING PROCESS
To determine the appropriate penalty I will adopt the following decision making process:
STEP 1 – WHAT IS THE MAXIMUM PENALTY?
The current sentencing regime for rape distinguishes between:
That, in my view, is the plain and ordinary meaning of the words of Section 347. In the present case the offender was not charged with any circumstances of aggravation. I reject Mr Miviri’s submission that he can be sentenced as if he had committed rape in circumstances of aggravation. Such circumstances are prescribed by Section 349A. None were charged in the indictment. I accept Mr Sheppard’s submission that it would be unfair and unlawful to expose the offender to a significantly higher sentence when the prosecution was not required to prove any circumstances of aggravation to sustain the conviction of rape.
That this is the correct interpretation of Section 347 is reinforced by three other provisions of the Criminal Code.
Section 1(1) (interpretation) gives a definition of "circumstances of aggravation". Unless the contrary intention appears, the term:
includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. [Emphasis added.]
Section 528(2) (form of indictment) obliges the prosecutor to charge circumstances of aggravation if they are intended to be relied on; which implies if they are intended to be relied on for the purposes of increasing the maximum sentence. Section 528(2) states:
... if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.
Section 538 (offences involving circumstances of aggravation) allows the court to enter a conviction for the bare or simple form of an offence if circumstances of aggravation are charged in the indictment. Section 538 states:
Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—
(a) established by the evidence; and
(b) constituted by any act or omission that is an element of the offence charged,
with or without any of the circumstances of aggravation charged in the indictment.
These three provisions support Mr Sheppard’s contention that if circumstances of aggravation are to be taken into account for the purposes of increasing the maximum penalty above what it would otherwise be, they must be charged in the indictment and proven beyond reasonable doubt as an element of the offence.
Pratt J took that approach in the National Court in The State v Miseal Butemo Jiregari [1984] PNGLR 62. His Honour sentenced the provincial secretary for Oro Province to three years for misappropriation upon being satisfied that circumstances of aggravation existed; using 10 years as the maximum penalty. However, upon realising that no circumstances of aggravation were charged in the indictment, his Honour vacated the original sentence and arrived at a sentence of two years and four months; this time using five years as the maximum sentence available.
More recently in The State v Dibol Petrus Kopal (2004) N2778, Lay J was confronted with the sort of issue that has arisen in the present case. The offender was convicted after a trial at Kundiawa of armed robbery and rape. No circumstances of aggravation were charged in connection with the count on the indictment dealing with rape. His Honour found that there clearly were circumstances of aggravation present (the offender committed the offences in the company of seven other men; they ambushed the rape victim and two male companions on a bush track; the offenders were armed with bush knives and a gun). However, as the circumstances of aggravation were not charged in the indictment they could not increase the maximum penalty, which remained at 15 years. His Honour then went on to say, nevertheless, that as the proven facts of the case disclosed circumstances of aggravation they could be taken into account for sentencing within the maximum of 15 years. He concluded:
I find that although this rape is not one of the worst amongst all cases of rape, it is one of the worst type of rape of the class where circumstances of aggravation are not charged. I therefore impose a sentence of 14 years in hard labour.
Support for this approach is also to be found in a series of sentencing decisions of Kandakasi J for rape under the new Section 347. In The State v Donald Angavia & 2 Others (2004) N2590 his Honour expressed the view that the new Section 347 is to be interpreted this way:
Where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors ... the
sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because, it makes no difference
between the previous position and the new provisions.
.
(Also see Kandakasi J’s decisions in The State v Luke Sitban (No 2) (2004) N2566 and The State v Henry Nandiro (No 2) (2004) N2668.)
I agree with the approach outlined by Lay J in Kopal and I agree with the first part of what Kandakasi J has said in Angavia, Sitban and Nandiro. It is not necessary for me to express a view on the second part of his Honour’s analysis of Section 347 in those cases.
To sum up:
STEP 2 – WHAT IS A PROPER STARTING POINT?
From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. Recently the Supreme Court gave detailed guidelines for manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J. However, the Supreme Court is yet to give sentencing guidelines for rape under the new law. It gave guidelines for rape under the old law in John Aubuku v The State [1987] PNGLR 267, Bredmeyer J, Los J, Hinchliffe J. These are summarised in table 2. It is useful to check what was said in that case, though it must be borne in mind that the tariffs or head sentences recommended are now generally regarded as out of date.
TABLE 2: SENTENCING GUIDELINES FOR RAPE
GIVEN IN AUBUKU’S CASE – OLD LAW
| No | Circumstances in which rape committed | Starting point |
| 1 | Rape committed by an adult without any aggravating or mitigating features. | 5 years |
| 2 | Rape committed by:
| 8 years |
| 3 | Rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger. | 15 years |
| 4 | Rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, where the accused
is likely to be a danger if at large in the community. | Life imprisonment |
I suggest that the above guidelines are out of date as the National Court is imposing sentences for violent crimes that are much higher than those imposed 20, or even 10 years, ago. The Supreme Court highlighted the need to revise the guidelines in Lawrence Hindemba v The State (1998) SC593, (Woods J, Injia J, Sawong J). On an appeal by a prisoner against the severity of sentence it actually increased the sentence from 10 years to 15 years.
In The State v Nick Teptep (2004) N2612, Sevua J stated:
In mitigation, I take into account the factors submitted by counsel. The prisoner pleaded guilty; the guilty plea has avoided a trial which has saved the victim from reliving the trauma; he is young, 19 years old, no physical injury of any significance was caused to the victim; he is a first offender and is remorseful.
However, in adopting the principles I have cited from the other cases, especially the existence of aggravating circumstances warranting a higher sentence, I am of the view that the suggested guidelines are outdated and no longer applicable to the circumstances of the country today. Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.
I agree with the sentiments expressed by Sevua J. The five cases cited by Mr Sheppard in his submission reflect the sort of sentences that were being imposed 10 or 20 years ago. The categories of circumstances in which a rape is committed still seem relevant. But the starting points have, in practice, been revised upwards, so much so that I think it would be safe to say that, even having regard to the penalty regime under the new Section 347, the starting points should be doubled. To illustrate the point I have in table 3 summarised the major judgments on sentencing for rape reported in either the N series of National Court judgments or the SC series of Supreme Court judgments since 2003.
TABLE 3: SENTENCES FOR RAPE
SINCE 2003
| No | Case | Details | Sentence |
| 1 | Offender raped an 11-year-old girl – guilty plea – breach of trust. | 18 years | |
| 2 | Rape of 11-year-old girl – guilty plea – offender had prior convictions for rapes of young girls. | 20 years | |
| 3 | Offender convicted of unlawful carnal knowledge of girl under 12 years – guilty plea – no prior conviction – no
remorse – breach of trust. | 12 years | |
| 4 | Offender pleaded guilty to gang rape of 15-year-old girl – over seven hours – use of bush knives and various other weapons. | 16 years | |
| 5 | Offender convicted after trial of rape of a married woman – no prior conviction – no physical injuries – customary
compensation paid. | 17 years | |
| 6 | Gang abduction and rape in broad daylight – offenders armed with bush knives – threats of violence to third parties –
conviction after trial. | 18-25 years, depending on degree of participation and age | |
| 7 | Rape of 10-year-old girl by older relative – breach of trust – vaginal injuries requiring medical repair – guilty
plea – expression of remorse – first, young offender. | 13 years | |
| 8 | Abduction and attempted rape of a relative – breach of trust – conviction after trial – first, young offender –
no remorse. | 9 years | |
| 9 | Offender raped a 10-year-old girl – conviction after trial – no prior conviction – no physical injuries –
no customary compensation paid – no remorse. | 17 years | |
| 10 | Rape of a 10-year-old girl – breach of trust – conviction after trial – no remorse – first, young offender. | 13 years | |
| 11 | Gang rape of girlfriend and relative – repeated acts of rape – conviction after trial. | 22-25 years depending on prior convictions | |
| 12 | Offender convicted after trial of rape of a married woman in presence of small children – offender known to victim – breach
of de facto trust – guilty plea – first offender. | 15 years | |
| 13 | Gang rape – breach of trust by boyfriend – first, young offenders – conviction after trial. | 17 years | |
| 14 | Pack rape – guilty plea – no remorse. | 14 years | |
| 15 | The offender, a bus driver, raped one of his passengers, a female school student. | 12 years | |
| 16 | Gang abduction and rape – use of weapon – offence committed in middle of night – conviction after trial –
no remorse. | 19 years | |
| 17 | Armed gang rape of 14-year-old girl – conviction after trial – no prior conviction – physical injuries to victim. | 20 years | |
| 18 | Rape in course of a robbery – weapons – but no circumstances of aggravation charged – trial – conviction under
Section 347(1). | 14 years |
| 19 | Offender raped his 13-year-old daughter – victim tied up and left in bush. | 15 years | |
| 20 | Offender raped mother of nine-month-old baby – some violence – victim wounded. | 8 years | |
| 21 | This was an appeal against sentence imposed for attempted rape – bush knife used – victim’s hands cut – appeal
dismissed. | 7 years |
I also refer in table 4 to two sentences for rape that I delivered last year in Kimbe. These are unreported decisions.
TABLE 4: SENTENCES UNDER SECTION 347(1) –
BY CANNINGS J
| No | Case | Details | Sentence |
| 1 | The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05 | The offender pleaded guilty to rape constituted by forcing the victim to suck his penis – no aggravated violence – no
prior convictions – remorse – conviction under Section 347(1). | 4 years |
| 2 | The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05 | Offender, 20-years-old, convicted after trial of raping a middle-aged woman – threatened to use bush knife – no circumstances
of aggravation charged – conviction under Section 347(1). | 10 years |
Another guide to selecting a starting point is to look at the sort of sentences that have been delivered in cases involving sexual penetration of children under the age of 16 years, which, when done without consent, is tantamount to rape.
TABLE 5: SENTENCES UNDER SECTION 229A –
SEXUAL PENETRATION OF A CHILD
| No | Case | Details | Sentence |
| 1 | Offender aged 40 charged with one count of sexual penetration – complainant, a girl, aged 12 – offender was the girl’s
adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to complainant
– part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated
with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender
labelled a sexual predator. | 20 years | |
| 2 | The State v Pennias Mokei (No 2) (2004) N2635, Cannings J | Offender aged 33 charged with one count of sexual penetration – complainant, a girl, aged 13 – offender was the girl’s
uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust –
offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first
offender – no trouble caused with complainant or family since commission of offence. | 15 years |
| 3 | The State v Eddie Trosty (2004) N2681, Kandakasi J | Offender aged 21 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 15 – complainant
was the offender’s girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent
consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted
– first offender. | 6 years |
| 4 | The State v Biason Benson Samson (2005) N2799, Cannings J | Offender aged 17 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 – lack
of consent – no weapons used or aggravated physical violence – offender cooperated with police – pleaded guilty
– expressed remorse – no compensation attempted – first offender. | 5 years |
| 5 | The State v Kemai Lumou (2004) N2684, Kandakasi J | Offender aged 22 charged with one count of sexual penetration – complainant, a girl, aged 14 – offender was the girl’s
uncle – no consent – aggravated physical violence: used bushknife to threaten complainant and sexual penetration was
forceful – no evidence of physical injuries or infection of complainant with sexually transmitted disease – isolated
incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender
did not cooperate with police: tried to cover up his actions by claiming that complainant was his girlfriend, aged 17 and sex was
consensual – pleaded not guilty: complainant forced to relive crime – no evidence of offender saying sorry to complainant
and her relatives – no compensation attempted – first offender. | 17 years |
| 6 | The State v George Taunde (2005) N2807, Cannings J | Offender aged 33 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 – uncle/niece
relationship – lack of consent – no weapons used or aggravated physical violence – offender cooperated with police
– pleaded guilty – expressed remorse – no compensation attempted – first offender. | 10 years |
| 7 | The State v Titus Soumi (2005) N2809, Cannings J | Offender aged 30 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 14 – offender
married to complainant’s older sister – consensual sex – no physical violence – offender cooperated with
police – pleaded guilty – expressed remorse – no compensation attempted – first offender. | 2 years |
| 8 | The State v John Ritsi Kutetoa (2005) N2814, Cannings J | Offender aged 39 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 10 – stepfather/stepdaughter
relationship – lack of consent – no weapons used or aggravated physical violence – physical injury caused to child
– violation of existing relationship of trust – offender cooperated with police – pleaded guilty – expressed
remorse – no compensation attempted – first offender. | 17 years |
Having considered the above cases and sentencing trends I think the proper starting point for sentencing under Section 347(1) is 10 years. That is, a rape falling within the first category of Aubuku’s case – where there are no strong aggravating or mitigating circumstances or where there are aggravating and mitigating circumstances of equal magnitude – should result in a sentence of around 10 years.
STEP 3 – WHAT ARE THE RELEVANT CONSIDERATIONS?
Having identified a starting point for the present case I will now identify the sort of things that should be taken into account when deciding to reduce or lift the sentence (up to the ceiling of 15 years).
Rationale
The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.
Another thing to note is that there are, in general, three sorts of considerations listed.
Numbers 1 to 15 focus on the circumstances of the incident. They are an amalgam of the circumstances of aggravation prescribed by Section 349A, the considerations highlighted by the Supreme Court in Aubuku’s case and some things that I consider should be taken into account to capture the full circumstances of what happened. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence.
Numbers 16 to 21 focus on what the offender has done since the incident and how he has conducted himself.
Numbers 22 to 26 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
STEP 4 – WHAT IS THE HEAD SENTENCE?
I apply the above considerations as follows:
He took off his shirt and went on top of her and started to suck her breasts. She shouted for help but he slapped her. She sang out. She was crying. He told her to shut up. He slapped her on her right cheek and then slapped her on the left cheek. He told her to take off her trousers but she did not do so. She was still crying. He was down on his knees blocking her legs. When she did not comply with his demands, he took off her trousers himself. He remained in the same position with his knees between her legs. He took her trousers completely off. She punched him on his chest twice. He told her to keep quiet. When he was taking off her trousers she did not say anything else. He unzipped and took off his trousers. He pushed his finger into her vagina. He pushed it in and out several times and then put his tongue into her vagina. He pushed his finger into her vagina again. Then he put his penis into her vagina and had sexual intercourse with her. After that he took out his penis and put his fingers back inside her vagina and then pushed his tongue inside and licked her vagina. (The State v James Yali (2005) N2988, National Court, Cannings J, (verdict), pages 19-20).
I accepted the victim’s evidence. I consider that the things the offender did, over and above introducing his penis into her vagina, are, in the circumstances of this incident, further sexual indignities and perversions, which aggravate the offence.
Recap
I regard the following as strong mitigating factors:
I regard the following as strong aggravating factors:
The other factors are not significantly mitigating (Nos 9, 10 and 14), not significantly aggravating (Nos 11, 12, 16 and 23) or neutral (Nos 6, 17, 18 and 25).
After weighing all these factors and bearing in mind that there are 11 strong aggravating factors compared to 4 strong mitigating factors, I consider that the head sentence should be lifted above the starting point of 10 years.
I accordingly fix a head sentence of 12 years imprisonment.
STEP 5 – SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
This is a serious case of rape and I do not think it is appropriate for the court to consider suspending any part of the sentence at this stage. To suspend the sentence would tend to diminish the gravity of the crime that James Yali has committed. Rape is a horrendous crime. As pointed out by Fiona Hukula in Rape and Social Identity, National Research Institute Discussion Paper No 100, © 2005, rape is a pressing social issue in this country that must be addressed both from the victims’ and perpetrators’ point of view. There is a limit to what the courts can do to prevent this sort of crime happening. But one thing the court can do is send a signal to everyone in the country, through its sentences, that rape is a serious crime. It must be visited with severe punishment to reflect the community’s condemnation of it.
Current sentencing principles require that the offender serve a considerable time in custody. I have considered qualifying the sentence by indicating a minimum term in gaol which he has to serve. However I have decided not to set a minimum term in view of the nature and gravity of the crime and the lack of any tangible reconciliation with the victim.
It is not necessary to consider step 6 of the decision making process outlined earlier.
SENTENCE
The Court makes the following order:
Sentenced accordingly.
_____________________________________________________
Lawyer for the State : Public Prosecutor
Lawyers for the accused : Young & Williams
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