State v Seregat [2007] PGNC 133; N3266 (23 November 2007)

N3266

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.333 OF 2007

THE STATE

-V-

JOHN SEREGAT

Kokopo: Lenalia, J.
2007: 14, 16, 21 & 23 November

CRIMINAL LAW – Attempted rape – Plea of guilty – Factors for
consideration – Sentence - s.348 of the Criminal Code, Ch. No.262.

CRIMINAL LAW – Sentence – Factors to consider on sentence –
Prisoner’s past medical history – Prisoner’s age relevant consideration – Partial suspended sentence appropriate.

Cases cited.
The State v Sottie Apusa [1988-89] PNGLR 170
The State v Tobby Tank (1994) N2063
The State v Otto Paulus (2002) N2241
The State v Julius Ombi (2004) N2552
The State v Arnold Warawara (16 November 2005) Unnumbered CR. No.430 of 2004
The State v David Duna Burua (6 July 2006) Unreported CR. No.829 of 2005

Counsel:
R. Auka, for the State
T. Potoura, for the Accused

SENTENCE

23 November, 2007

1. LENALIA, J: The accused pleaded guilty to one count of attempted rape contrary to s. 348 of the Criminal Code. The charge contained in the indictment reads that on 17 November 2006, at the Ralum Golf Field in Kokopo, the prisoner John Seregat attempted to sexually penetrate one Agasta Victor Muligi without her consent.

FACTS

2. The facts of this charge contained in the indictment are very short. On Friday morning on the above date, the victim and her little sister were swimming on the beach front of the golf course. After swimming for sometime, the victim’s little sister fell hungry and started to cry for food so the victim decided to climb up a coconut tree to get some green coconut commonly called "kulau".

3. She took her sister and seated her nearby a coconut tree. She collected some rope and tied it into a loop for purposes of using it to climb the coconut tree. As she placed the rope around her legs in a ready position to climb, the prisoner came up to her and pulled her by her hands. Using his other hand, he placed it over her mouth so that she could not cry out.

4. He pulled her up further into the tall grass where he pushed her down to the ground undressed her and he undressed himself and attempted to penetrate the victim. In the course of that act, the victim’s little sister cried out alerting their father who was within hearing distance from where the two girls were.

5. The father came and disturbed the accused. He got up and fled into the bushes. He was later traced as he is well known to the victim and her parents. When the prisoner ran off, he stood and looked back at Victor Muligi (victim’s father). When Victor reached the prisoner, he started to assault the accused. The matter was reported to the police and the prisoner was arrested and charged.

Allocutus

6. In his allocutus, the prisoner said, he is now old and he begged for mercy from the Court. He asked the Court to consider he is advanced in age and said, if he is sent to jail, he will not be of any use to the prison authorities because he will not labour as young offenders would. He therefore asked for a non-custodial sentence and further asked that, he should be ordered to pay compensation to the victim and her parents.

Defence Address on Sentence.

7. Addresses on sentence was adjourned several times because, the defence counsel wanted to file a medical report on the prisoner’s past history of the accused medical condition. Mr. Potoura of counsel for the prisoner submitted that, the Court should consider the prisoner’s guilty plea and his past good record with the police. The prisoner is a first offender but he is not a youth.

8. He further submitted that the Court should take into account, the prisoner’s medical condition and his past history of being affected with TB. On 19th of this month, Dr. Taufa of Vunapope hospital medically examined the prisoner and said on the medical report dated 19th instant that the prisoner has a history of having chronic cough and completed his TB treatment in 2004. Commenting on the examination, the report sates that, chest examination showed that there is no further "indrawings" or sign of shortness of breath.

Prosecution Address on Sentence

9. For the prosecution, Mr. Rangan who stood in for Mr. Auka submitted that, though the prisoner is an old man, he committed this serious crime. Counsel urged the Court to consider the common abuse of children very prevalent throughout the country and more particularly in this Province. Counsel submitted that, there are a number of aggravations such as the age gap between the victim and the prisoner and the fact that the victim was very young at the time the offence was committed.

Relevant Law

10 The prisoner is charged with an offence of attempted rape under s.348 of the Criminal Code. This proviso contains one of the shortest wordings in the Criminal Code which state:

"348. Attempt to commit rape.

A person who attempts to commit the crime of rape is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years.

11. The word "attempt" is defined in Section 4 of the Criminal Code in the following terms:

"4. Attempts to commit offences.

(1) When a person, intending to commit an offence—

(a) begins to put his intention into execution by means adapted to its fulfilment; and

(b) manifests his intention by some overt act,

but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment whether—

(a) the offender does all that is necessary on his part for completing the commission of the offence; or

(b) the complete fulfilment of his intention is prevented by circumstances independent of his will; or

(c) he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence."

12. Sexual offences are very prevalent in this region. Sentences for sexual offences in the most recent past have seen an increase in the sentencing trend. Rape or attempted rape for that matter had been said to be the invasion of the right to privacy guaranteed by s.49 of the Constitution. (See discussion in the case of The State v Arnold Warawara(16.11.05) Unnumbered CR.No.430 of 2004). In context of abuse of trust, the following is what I said at page 11 in the case of The State v David Duna Burua (6 July 2006) unnumbered judgment CR.No.829 of 2005:

"On recent sentencing trends by National Court judges, sentences have gone very high due to the frequency and prevalent nature of sexual offences. Of particular concern to this court is incest or other sexual crimes committed between members of the nucleus family circles. As often stated, breach of trust is betrayal in the most severe kind and is "personal treason". This is how His Honour Justice Brunton put it in the case of The State v Sottie Apusa [1988-89] PNGLR 170:

"There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for a relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love – and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason"

The next aggravation in this case is there was and is a very big age difference between the victim and the prisoner. The accused in this case is about 50 years while the victim was age 15 at the time the matter was reported to the police. She must have been around 11 years or 12 when the accused started to sexually abuse her by sexual touching. According to the case of The State v Mitige Nehehia [1988-89] PNGLR 174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in the above case and apply them to the circumstances of this case and I must reiterate that, the breach of trust in this case is very severe indeed because, the prisoner is the biological father of the victim."

13. The circumstances of this case are quite peculiar in the sense that the victim did not give a hue but it was lucky that, the father of the victim came around just at the right time to foil the attempt. Attempted rape is not very common as compared to actual sexual penetration. Let me cite a number of attempted rape cases.

14. In The State v Julius Ombi (2004) N2552, it was a case of abduction and attempted rape where the prisoner was found guilty of both abduction and rape, the prisoner was sentenced to 9 years concurrent sentences for attempted rape and abduction.

15. In The State v. Tobby Tani (1994) 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.
16. 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.

17. 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.

18. In The State v Otto Paulus (2002) N2241, 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 shorts and panties down, opened her legs and tried to push his penis into her vagina.

19. 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 pocket-knife and stabbed the victim on the back of her head causing her to bleed heavily. Judge Kandakasi sentenced the prisoner to 9 years.

20. In the current case, there are two serious aggravations. First, on the date of the offence, the victim was at the age of 10 years. The offence of attempted rape provided for by s.348 of the Criminal Code does not provide for aggravations as those sexual offences in the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

21. Under the above Act, it is an aggravation to sexually deal with under-age girls. As it appeared, the victim in this case was very young. Comparing the prisoner’s age with that of the victim at the time the offence was committed, the prisoner was about 62 years old while the victim was at the age of 10 or 11 years.

22. Sexual abuse of very young children and the women in this country has been adequately addressed by Parliament when it passed the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even "child prostitution" and "child pornography". The offence of attempted rape is the only offence that is not provided for in the above Act.

23. The second aggravation is the fact that this case bordered on a breach of trust relationship. Again, in the Criminal Code, the phrases "breach of trust" or "relationship of trust authority or dependency" is not defined. Before the Criminal Code (Sexual Offences and Crimes Against Children) Act, came into force, Brunton; A.J, in The State v Sottie Apusa [1988-89] PNGLR 170 discussed the issue of the "relationship of trust or dependency" His Honour outlined certain relationships where we commonly find the relationship or trust and dependency. Examples of those can be found in the teaching and medical professions.

24. The statements of the victim and her father are clear in which they say that, the prisoner used to stay with them at the same place at Vunamami village beach front. He was not a stranger to the victim and her family.

25. The prisoner’s action must be viewed and taken as breach of trust. Obviously, the prisoner is an elderly person and he is expected to act as such. The victim in this case was and is very young. The fact that, the prisoner is not related to the victim does not matter.

26. The medical report presented by the defence lawyer on the medical condition of the prisoner says the prisoner has been suffering from TB but medications have been stopped since 2004. There is no mention as to whether, that illness is still attacking him now. I conclude that, the prisoner is now healthy and if sentenced to imprisonment, he should have the strength to work in light labour in jail.

Mitigations

27. Before the prisoner is sentenced, the Court takes into account the following mitigations,

• Prisoner’s guilty plea,
• he is a first offender,
• he is an old man (age factor),
• his medical condition if sent to jail for a long term of imprisonment.
  

Aggravations

28. Aggravations in this case include the following,

- the victim’s age,
- de facto breach of trust between the victim and the prisoner,
- minor injuries caused to the victim,
- the age gap between the prisoner and the victim,

29. Considering all mitigations together with aggravating factors and comments made by Mogish; J in The State v Arnold Warawara (Unreported judgment of 16 November 2005) CR.No.430 of 2004, for the interest of justice, I would consider a sentence of 7 years to be appropriate. He is accordingly sentenced to 7 years imprisonment in light labour. The Court will suspend 3 years from the head sentence living the prisoner with 4 years to serve in custody.

30. The Court orders that after serving 4 years, he shall enter into a recognizance to keep the peace for 12 months. Any time spent in custody shall be deducted from the time he will serve. His bail shall be refunded to him.

The Public Prosecutor: Lawyer for the State,
Paul Paraka Lawyers: Lawyer for the Accused.