State v Kout [2008] PGNC 106; N3413 (19 May 2008)

N3413

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 348 OF 2008

THE STATE

V

ISRAEL KOUT

Buka: Paliau, AJ
2008: 14th & 19th May

CRIMINAL LAW – Attempted Rape or Attempted to Sexually Penetrate – Charge of – Guilty Plea – Criminal Code s. 348.

Cases cited:
No cases cited in the Judgment.

Counsel:
Mr. Rangan, for the State
Mr. Kaluwin, for the Accused

DECISION ON SENTENCE

19 May, 2008

1. PALIAU, AJ : You pleaded guilty to the charge of attempted rape or attempted to sexually penetrate the victim on the 23rd February 2008 between the hours of 7:00 pm and 9:00 pm at sea between Tung Village and Petats Island, Buka, in the Autonomous Region of Bougainville. You were alone with the victim, Noreen Tepure when you attempted to have sexual intercourse with her without her consent. You were escorting the victim from Tung Village to Petats Island.

Antecedent Report

2. You have prior convictions. You were sentenced to three (3) years imprisonment on 20th December 2005.

Allocutus

3. You said during allocutus that you are sorry to the Court. That you want to be put on probation and organize reconciliation with the victim’s relatives and pay compensation to the victim.

Pre-Sentence Report

4. I received a pre-sentence report from the Community Based Corrections services. You come from Poka Village, in the Buka District in the Autonomous Region of Bougainville. You are aged 38 and married with six children. You are educated to Grade 9 at Hutjena High School in 1998. You were employed once as a carpenter but no longer employed. You are well regarded in the community in which you live in and a low risk person and not a threat to the community. You are recommended for probation.

5. The pre-sentence report reveals that there has been no payment of compensation to the victim’s relatives and no reconciliation with them.

Submission by Defence Counsel

6. Mr Kaluwin submitted that as recommended in the pre-sentence report the accused should be put on probation so that he is able to reconcile with the victim’s relatives and pay compensation.

7. Mr Kaluwin further submitted that the accused pleaded guilty and had saved the State’s and Court’s time and money. He has expressed remorse. He recommended a term of imprisonment of 3 to 4 years fully suspended with conditions. A non-custodial sentence is appropriate so that the accused faced the community which has wronged and spend his own resources to pay for his crime.

Submission by the State

8. Mr Rangan for the State submitted that the maximum penalty for the offence is 14 years imprisonment and due to the increasing incidences of such a crime and to send a clear message to the would be perpetrators, the maximum penalty must be imposed. The accused has prior convictions by the Grade 5 Court.

Decision as to the appropriate penalty

9. To determine the appropriate penalty, I will adopt the following decision making process and they are:

Step 1 : What is the maximum penalty?

Step 2 : What is the proper starting point?

Step 3 : What should be the head sentence?

Step 4 : Should the pre-sentence periods in custody be deducted from the term of imprisonment?

Step 5 : Should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum penalty for attempted rape, under Section 348 of the Criminal Code is imprisonment for a term not exceeding 14 years.

STEP 2: WHAT IS THE PROPER STARTING POINT?

11. I am unable to find case precedents that will assist me nor Counsels were able to assist me provide case precedents that will spell out the range of punishments that will be used as a guide when imposing sentences for this offence.

12. Because Section 348 is not in mandatory terms, the Court has a discretion to impose a penalty below 14 years. I will exercise my discretion to put 10 years as the proper starting point.

STEP 3: WHAT SHOULD BE THE HEAD SENTENCE?

13. As the starting point is 10 years, I will start from there and weigh the mitigating and aggravating factors. If the mitigating factors are more, the head sentence will be below the starting point. If the aggravating factors are more, the head sentence will be above the starting point.

Mitigating Factors

- You co-operated with the Police in their investigation.
- Your early plea has saved the Court’s time and money.
- You have a good record in the community.
- You have expressed remorse.
- You are low risk person.

Aggravating Factors

- No peace or reconciliation with the victim’s relatives and no payment of compensation.
- You have a prior conviction.
- You scared the victim to jump overboard into the sea in the dark.

Determination

14. After weighing the mitigating and aggravating factors, the mitigating factors outweigh the aggravating factors by 2 factors. The head sentence should be below the starting point. I therefore impose a head sentence of 7 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. Section 3 (2) of the Criminal Justices (Sentences) Act requires the whole of the pre-sentence periods in custody be deducted from the head sentence, which is 1 month 13 days. I impose a term of imprisonment of 6 years 11 months 18 days.

STEP 5: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

16. You have a good pre-sentence report. You are considered a low risk person. You have been recommended by the Community Based Corrections Officer as a suitable candidate for probation. You indicated in the pre-sentence report that you want to reconcile with the victim’s relatives and anybody who is affected by your action and pay compensation.

17. Taking into account all the above factors, I do not think a custodial sentence should be imposed. I will therefore suspend all the 6 years 11 months 18 days sentence and impose the following conditions:

(1) You shall enter into your own recognizance and keep peace and be of good behaviour for 3 years commencing today – 22nd May 2008.

(2) You shall organize a peace and reconciliation ceremony with the victim’s relatives and pay compensation of K1,000.00 to the victim within 4 weeks of today’s date – 22nd May 2008.

(3) The Probation Officer shall produce a statement to the Court that condition (2) has been complied with.

(4) Perform six (6) months of community work to be organized and supervised by Community Based Corrections Office.

18. If you breach any one of the above conditions, you shall be brought before the National Court to show cause why you should not be detained in custody to serve the rest of the sentence.

Sentence

19. ISRAEL KOUT, having been convicted of the crime of Attempted Rape, you are sentenced to:

Length of sentence imposed - 7 years

Pre-sentence period deducted - 1 month 13 days

Resultant length of sentence to be served - 6 years, 11 months & 18 days

Amount of sentence suspended - 6 years 11 months 18 days

Time to be served in custody - Nil

Sentenced accordingly.

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