State v Nangoe [2007] PGNC 177; N4923 (24 October 2007)

N4923

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 392 OF 2006

THE STATE

V

PHILIP NANGOE

Buka: Cannings J
2007: 18 September, 24 October

CRIMINAL LAW – sentencing – rape – sentence after trial – circumstances of aggravation – victim, a young woman, mentally retarded – Criminal Code, Section 347 – sentence of 15 years.

A man was found guilty after trial of the rape of a young mentally retarded woman. She had walked past the accused and a friend when the accused went after her and proceeded to rape her. As the victim had a serious mental disability and that matter was charged in the indictment and proven at the trial, it was a circumstance of aggravation. The maximum penalty under Section 347(2) of the Criminal Code was therefore life imprisonment.

Held:

(1) The starting point for sentencing for rape under Section 347(2) of the Criminal Code is 15 years imprisonment.

(2) Mitigating factors are: victim not of vulnerable age; offender acted alone; no offensive weapon; no torture; no confinement; no abuse of trust; no STD; spontaneous incident; no other indignity; co-operated with police; no further trouble; first-time offender.

(3) Aggravating factors are: large age gap; penile penetration; victim had serious mental disability; no provocation; no dignity; emotional impact on victim; did not give himself up; no reconciliation; took the matter to trial; not a youthful offender.

(4) A sentence of 15 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928/1997
The State v George Tomeme CR No 920/2002, 18.07.07
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05
The State v Noutim Mausen CR No 596 of 2004, 24.08.05
The State v Philip Nangoe CR No 392/2006, 18.09.07

SENTENCE

This was a judgment on sentence for aggravated rape.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

24 October, 2007

1. CANNINGS J:This is a decision on sentence for a man convicted after trial for aggravated rape of a young mentally retarded woman. The offender, Philip Nangoe, committed the offence between 3.00 and 6.00 am on 23 February 2004 at Kutubuta village on Buka Island. He and a friend were walking along the road. The offender was drunk on home brew. The victim walked past the offender and his friend, then the offender left his friend, went after her and proceeded to rape her next to the road. Further details of the offence are in the written judgment on verdict in The State v Philip Nangoe CR No 392/2006, 18.09.07.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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. A paraphrased summary of his response follows:

I apologise to court for what I have done. I apologise to those people who have accused me of this trouble. I apologise to God.

PERSONAL PARTICULARS

4. The offender is single, Catholic, aged 39. He is from Mariyelutu village on Buka Island. His father is deceased and mother still alive. He is the third born in a family of eight. His formal education stopped at grade six in 1977. He has had a small amount of formal employment.

SUBMISSIONS BY THE STATE

5. Mr Rangan, for the State, submitted that a sentence of 20 years should be imposed, in light of the fact that some violence was used, the victim was very vulnerable and the offender was drunk.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the fact that he is a first-time offender. The rape involved no aggravated physical violence and the court should find that it was a case of digital, not penile, penetration, as borne out by the medical evidence. It was a crime of opportunity rather than design. The case is not the worst of its kind so a sentence of nine or ten years would be appropriate.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what other sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. Section 347 (rape) of the Criminal Code states:

(1) A person who sexually penetrates a person without [her or] 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.

9. In this case the victim had a serious mental disability. That fact was included in the indictment as a circumstance of aggravation and proven beyond reasonable doubt in the trial. It is prescribed by Section 349A(g) as one of the circumstances of aggravation for rape and other offences under Division V.7 (sexual offences and abduction) of the Criminal Code. Therefore the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In The State v James Yali (2005) N2989 I expressed the view that the starting points when sentencing for rape should be:

• if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and
• if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.
  

11. I follow that approach in this case and use 15 years imprisonment as a starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider recent sentences I have imposed for rape, as shown in the table below.

TABLE 1: RAPE SENTENCES IMPOSED BY CANNINGS J, 2005-2007

No	Case	Details	Sentence
1	The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05, Kimbe	Guilty plea – 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, Kimbe	Trial – offender, 20-years-old, convicted of rape of middle-aged woman – threatened to use bush knife – conviction under Section 347(1).	10 years
3	The State v James Yali (2006) N2989, Madang	Trial – offender raped 17-year-old sister of his de facto wife – conviction under Section 347(1).	12 years
4	The State v Jeffery Wangi (2006) N3016, Bialla	Guilty plea – victim an 8-year-old girl – no circumstances of aggravation charged in indictment – conviction under Section 347(1).	14 years
5	The State v Joe Sime CR No 1078/2004, 25.08.06, Buka	Guilty plea – offender raped his niece, aged 16 – threatened her with a small axe – genuine remorse – strong mitigating factor was the conditions of detention at Buka police lock-up – conviction under Section 347(2).	10 years
6	The State v Alex Matasol Hagali CR No 928/1997, 29.09.06, Buka	Trial – offender threatened victim with bush-knife – two offences committed within short period – no aggravated physical violence – offender aged 17 at time of offence; victim aged 19 – two convictions under Section 347(1) – concurrent sentences.	6 years
7	The State v George Tomeme CR No 920/2002, 24.08.07, Kimbe	Trial – shortly before meeting the offender the victim, a young woman, had been raped by six other men – offender led her away on the pretext that he was saving her, then proceeded to rape her himself – conviction under Section 347(1).	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The list is based on the considerations I identified in Yali's case. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

14. 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.

15. Three sorts of considerations are listed. Numbers 1 to 15 focus on the circumstances of the incident. 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.

1. Is there only a small age difference between the offender and the victim? No. The offender was aged 36 at the time of the offence and I estimate the victim to have been about 20.
   
2. Is the victim well over the age of 16 years and not an old person? Yes.
   
3. Was there only one offender? Yes.
   
4. Did the offender not use or threaten to use a weapon? Yes.
   
5. Did the offender not torture or cause grievous bodily harm? Yes.
   
6. Did the offender not confine or restrain the complainant before or after the commission of the offence? Yes.
   
7. Did the offender not abuse a position of trust, authority or dependency? Yes.
   
8. Was the form of penetration other than penile penetration? No. I reject the defence counsel's submission that this was a case of digital penetration.
   
9. Did the victim not suffer from a serious physical or mental disability? No, she was mentally retarded, which is a major aggravating factor.
   
10. Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim? Yes.
    
11. Was the offence unplanned, ie was it a spontaneous incident? Yes.
    
12. Did the victim provoke or aggravate the offence? No.
    
13. Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape? Yes.
    
14. Did the offender treat the victim with dignity immediately after committing the offence? No, he left her by the road.
    
15. Did the incident have a minimal emotional impact on the victim? No – the court does not have this information and therefore must presume that the emotional impact was serious.
    
16. Did the offender give himself up after the incident? No.
    
17. Did the offender cooperate with the police in their investigations? Yes.
    
18. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
19. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
20. Has the offender pleaded guilty? No.
    
21. Has the offender genuinely expressed remorse? Neutral. He did not apologise to the victim.
    
22. Is this his first offence? Yes.
    
23. Can the offender be regarded as a youthful offender? No.
    
24. Will a lengthy jail term have an adverse effect on the offender's family and others dependent on him? Neutral.
    
25. Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service? Neutral.
    
26. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

16. To recap, mitigating factors are:

• No 2 – victim not of vulnerable age;
• No 3 – offender acted alone;
• No 4 – no offensive weapon;
• No 5 – no torture;
• No 6 – no confinement;
• No 7 – no abuse of trust;
• No 10 – no STD;
• No 11 – spontaneous incident;
• No 13 – no other indignity;
• No 17 – co-operated with police;
• No 19 – no further trouble;
• No 22 – first-time offender.
  

17. Aggravating factors are:

• No 1 – large age gap;
• No 8 – penile penetration;
• No 9 – victim had serious mental disability;
• No 12 – no provocation;
• No 14 – no dignity;
• No 15 – emotional impact on victim;
• No 16 – did not give himself up;
• No 18 – no reconciliation;
• No 20 – took the matter to trial;
• No 23 – not a youthful offender.
  

18. The other factors (Nos 21, 24, 25 and 26) are neutral. Weighing all these factors (12 mitigating factors compared to 10 aggravating factors), I consider that the head sentence should be at the starting point I earlier identified. I accordingly fix a head sentence of 15 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, five months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. No. The court has not been informed of any moves towards compensation or reconciliation. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

21. Philip Nangoe, having been convicted of the crime of rape, is sentenced as follows:

Length of sentence imposed	15 years
Pre-sentence period to be deducted	1 year, 5 months
Resultant length of sentence to be served	13 years, 7 months
Amount of sentence suspended	Nil
Time to be served in custody	13 years, 7 months

Sentenced accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender