State v Otariv [2011] PGNC 188; N4466 (15 December 2011)

N4466

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 371 OF 2008

THE STATE

V

JOEL OTARIV

Madang: Cannings J
2011: 10 November, 7, 8, 15 December

CRIMINAL LAW – sentencing – rape – guilty plea – two counts – circumstances of aggravation on each count – whether sentences should be served concurrently or cumulatively – totality principle.

A man pleaded guilty to two counts of rape, committed against his mother, within a short space of time. He claims to have been under the influence of drugs. Each offence involved a violent assault.

Held:

(1) Notional sentences of 20 years imprisonment and 25 years imprisonment were imposed in respect of each offence, the total potential sentence being 45 years imprisonment.

(2) The sentences should be served cumulatively as there were two separate incidents, albeit separated by a short space of time.

(3) Under the totality principle, the court continued to accord some benefit to the offender for having pleaded guilty, thus the total sentence was reduced to 30 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Douglas Jogioba (2007) N4085
The State v George Tomeme CR No 920/2002, 24.08.07
The State v James Urig CR No 375/2009, 24.05.10
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Joel Otariv (2011) N4409
The State v Philip Kila CR No 722 of 2006, 15.07.09
The State v Philip Nangoe CR No 392/2006, 24.10.07
The State v Robert Yochie (2010) N4113
The State v Steven Tari Nangimon Garasai (2010) N4155

SENTENCE

This was a judgment on sentence for two counts of rape.

Counsel

A Kupmain & S Collins, for the State
M Mwawesi, for the offender

15 December, 2011

1. CANNINGS J: The offender, Joel Otariv, is before the court to be sentenced after he pleaded guilty to two counts of rape. The offences were committed within a short space of time on the morning of 17 March 2008 at the offender's village, Sirin, in the Bogia District of Madang Province. The victim in each case was his 60-year-old biological mother. At 9.00 am he followed her to the garden. He asked her to give him the bushknife that she was carrying. She did so, then he struck her with it, overpowered her, pulled her into the bush, forcefully removed her clothes and penetrated her vagina with his penis, without her consent. She ran away, he followed her, assaulted her, forced her to the ground and again penetrated her vagina with his penis, without her consent. The circumstances of aggravation charged in the indictment are that:

• at the time of each offence he used a weapon (a circumstance of aggravation under Criminal Code, Section 349A(b));
• he tortured and caused grievous bodily harm to the victim (Section 349A(c));
• he abused a position of trust, authority and dependency (Section 349A(e)); and
• he is a member of the same family as the victim (Section 349A(f)).
  

ANTECEDENTS

2. At the time of these offences the offender had no prior convictions. He has been recently sentenced to life imprisonment for wilful murder, an offence which was committed on 22 January 2010 (The State v Joel Otariv (2011) N4409).

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I say sorry to my mother for what I did. I also say sorry to my brothers and sisters and my uncles and aunties and other family members for what I did.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is significant that he has cooperated fully with the police. When he was interviewed by police in Madang, on 31 March 2008, two weeks after committing the offences, he made full admissions, acknowledged his guilt and said that he had been smoking drugs and that caused him to have sexual desires against his mother.

PRE-SENTENCE REPORT

5. Joel Otariv is 23 years old and single. His parents are alive but elderly. He was raised in the village. He has a grade 6 education. His father has two wives and the offender is among ten children of these marriages. The offender says that he had a good family upbringing. He has no formal employment record and expresses no interest in working for wages. He is a villager and is content to stay that way. He admits that he uses drugs and says that this was what caused him to commit the offences. His father and his second mother and an aunt and an uncle were interviewed by the author of the report. They are deeply ashamed by his actions, which they regard as immoral and animalistic. The whole village feels ashamed. There is no realistic chance of reconciliation between the offender and his mother as she has left Sirin because of the shame and embarrassment she has endured and she is in hiding, it is not known where. The report concludes that the offender is not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Mwawesi acknowledged the gravity of the offences but urged the court to take into account that at the time of the offences the offender had no prior convictions and, most significantly, the guilty plea. A term of years, rather than life imprisonment, should be imposed.

SUBMISSIONS BY THE STATE

7. Mr Collins submitted that the only mitigating factor was the guilty plea but it was so heavily outweighed by the numerous circumstances of aggravation, only a sentence of life imprisonment would be appropriate. It is difficult to imagine a more serious case of rape. He represents a significant danger to the community, which needs to be protected. No rehabilitation is possible, it was submitted.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty for each offence?
• step 2: what is the starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

9. 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.

10. Circumstances of aggravation were charged and proven in relation to each count. Therefore the maximum penalty for each offence is life imprisonment. The court has a discretion whether to impose the maximum by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

11. I have expressed the view in a number of cases (eg The State v Philip Kila CR No 722 of 2006, 15.07.09) 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.
  

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

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

12. Before I fix a sentence I will consider other sentences I have imposed for rape in cases that in various respects have similarities with the present case.

TABLE 1: OTHER RAPE SENTENCES, 2006-2010

No	Case	Details	Sentence
1	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
2	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
3	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
4	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 pretext that he was saving her, then raped her himself – conviction under Section 347(1).	12 years
5	The State v Philip Nangoe CR No 392/2006, 24.10.07, Buka	Trial – offender raped young mentally retarded woman, near a public road – offender went after her – conviction under Section 347(2).	15 years
6	The State v Douglas Jogioba (2007) N4085, Buka	Trial – schoolteacher raped 16-year-old student – two counts: first, digital penetration of vagina; second, penile penetration of vagina – conviction under Section 347(2).	10 years
7	The State v Philip Kila CR No 722/06, 15.07.09, Madang	Trial – police officer raped victim in course of police duties, threats of violence – conviction under Section 347(2).	17 years
8	The State v Robert Yochie (2010) N4113, Madang	Guilty plea – offender raped 17-year-old daughter – conviction under Section 347(2).	14 years
9	The State v James Urig CR No 375/2009, 24.05.10, Madang	Guilty plea – 22-year-old offender joined with two other men in dragging a 23-year-old woman away from her sister and raping her – pack-rape – circumstances of aggravation charged in indictment – conviction under Section 347(2).	16 years
10	The State v Steven Tari Nangimon Garasai (2010) N4155, Madang	Trial – 4 counts – 30-year-old offender was a preacher, four victims were flower girls in his ministry, aged 15 to 17 years – in each case the offender induced the victim to have sex with him by abusing his position of trust, authority or power.	20 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

13. The offender is being sentenced for two offences. The court must fix a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence. I will begin by examining count 1 in detail and fix a sentence for it, and then consider the other count.

Count 1: first offence committed

14. Aggravating factors are:

• large age gap (40 years) between the offender and the victim;
• the victim used a weapon (bushknife);
• he tortured and inflicted grievous bodily harm on the victim;
• very severe breach of trust, violating the sacred bond between a son and his mother;
• he was a member of the victim's family, a close relative.
  

15. Mitigating factors are:

• he made full and early admissions to police;
• he has pleaded guilty;
• he was at the time a first-time offender;
• he has expressed some response.
  

16. Taking all those factors into account and comparing this case with the precedents outlined earlier, I impose a sentence of 20 years imprisonment.

Count 2: second offence committed

17. The circumstances of this offence are almost identical to the first. However, because it was such a merciless crime, committed so soon after the first offence, a heavier sentence is warranted. 25 years imprisonment is imposed on count 2.

Total potential sentence

It is:

20 years (count 1) + 25 years (count 2) = 45 years imprisonment

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

18. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, though the victim was the same, and the second offence was committed very soon after the first, the additional trauma, terror, shame, humiliation and betrayal that must surely have been endured by the victim means that the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

19. I now look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences. Sentencing a 23-year old man to a 45-year sentence would be tantamount to imposing a life sentence and I do not think that, because of the guilty plea, this case warrants that. Though the prosecutor submitted that there is no possibility of rehabilitation, there is no evidence to support that proposition. I consider that the offender's guilty plea should continue to provide him with some degree of benefit when deciding on the final sentence. I will therefore fix the total sentence at 30 years imprisonment, apportioned as follows: count 1: 14 years; count 2: 16 years.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

20. 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 I estimate as one year.

STEP 8: SHOULD ANY PART OF THE SENTENCE BE SUSPENDED?

21. There is nothing in the pre-sentence report to warrant suspension of the sentence. I decline to suspend any part of the sentence.

SENTENCE

22. Joel Otariv, having been convicted of two counts of rape contrary to Section 347(1) of the Criminal Code in circumstances of aggravation under Section 347(2) of the Criminal Code on each count, is subject to the following total sentence:

Length of sentence imposed	30 years
Pre-sentence period to be deducted	1 year
Resultant length of sentence to be served	29 years
Amount of sentence suspended	Nil
Time to be served in custody	29 years
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________

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