N5095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 120 OF 2012

STATE

V

NOKSIE AIGANDA
Prisoner

Goroka: Ipang AJ
2012: 26 November
2013: 18 February
 
CRIMINAL LAW –Sentence - Criminal Code Act – s.347 (1) – Prisoner threatened the victim with a bush knife pulled her in to the dark area near a huge tree and raped the victim

CRIMINAL LAW – Sentence – Mitigating factors – First time offender – not pre planning, isolated, no permanent injury, prisoner expressed remorse, compensation paid. Aggravating Factors – prevalence of rape cases, use of offensive weapon, a bush knife, offence took place in the night – no circumstances of aggravation pleaded in the indictment

Cases Cited

State v James Yali [2006] N2989
State v Frank (No. 2) [2012] PGNC 88, N4700 (13 June, 2012) 
State v Mano Time CR. No. 97 of 2012 (Unreported)
John Aubuku v The State [1987] PNGLR 267 
Rudy Yekat v State (22.11.00) SC 665 

Counsel:

Mr. K. Umpake, for the State
Mr. R. Kasito, for the Prisoner

DECISION ON SENTENCE

18th February, 2013

1.	IPANG AJ: On the 24 October, 2012 an indictment was presented against the Prisoner charging him on one (1) count of rape pursuant to s. 347 (1) of the Criminal Code Act, Chapter 262. Prisoner pleaded not guilty and a trial was conducted and concluded. On the 31 October, 2012 the prisoner was found guilty. Mr. Kasito of counsel for the prisoner requested for a Pre Sentence Report (PSR) and a Means Assessment Report (MAR) to be done on prisoner. I have ordered for these reports to be compiled. These reports have been compiled and this is the decision on Sentence for the prisoner.

 Brief Facts

2.	The brief facts for the purpose of sentencing are as follow: On the 27 October, 2011 between the hours of 7pm and 8pm, the prisoner was at Hofafina village, Okapa, Eastern Highlands Province. He was with his clansmen and had checked on victim's husband's house. Then, he (prisoner) had left his men on guard for the victim's husband and he had gone to check his children at his house. On the way to his house he met the victim and she greeted him. The prisoner told the victim that he and his men were waiting for the victim's husband. Victim responded that she has not heard of her husband's coming.

3.	The prisoner told the victim to go to the side. He then pulled her by the hand to the side and into the bush. The victim struggled and tried to escape but the prisoner threatened her with the bush knife and also of his clansmen would be invited to see her. So, there in the bush the prisoner forcefully removed the victim's skirt, bend the victim in a bending position, inserted his penis into victim's vagina and sexually penetrated her.

Allocutus

4.	When the allocutus was administered, the prisoner said the incident wouldn't have happened as the prisoner said the victim was aware that, at that time the prisoner's wife was not at the village but was away in Lae selling vegetables so the victim took advantage of that. Prisoner went on to say that because after the act, the prisoner asked for some money but he has no money and has not given her money, she reported him. He is sorry for what he did. He says sorry to the Court and the community. This is his first time in court. He said he has a wife and (five) 5 children to look after. All his children are in school. He said he has coffee gardens to look after.

Pre Sentence Report and Means Assessment Report:

5.	The prisoner is married to Janet from the same village. Janet is the sister of victim's husband. Prisoner has been married to Janet for 23 years. Both have 4 children and one adopted son. Prisoner and his wife plant potatoes and cabbages and sell in Lae to earn money to sustain their family and also for paying school fees. Pre Sentence Report revealed that the prisoner expressed remorse to his family and the victim. It was also revealed that the prisoner's relatives paid as compensation K1000.00. Mr. Umpake cannot confirm this. I also note that the reports were not balanced as the victim and her husband were not available for the interview.

Law

6.	The penalty under the charge which the prisoner was charged with is as follows: The prisoner is charged under s. 347 (1) of the Criminal Code Act, Chapter 262. Thus, s. 347 (1) is in the following:

(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.

7.	So under s. 347 (1) the maximum penalty is 15 years. It is the sentencing practice that maximum sentences are reserved for worst type of cases. In this present case I am convinced it does not fall within the category of worst type of cases. So to determine as appropriate sentence for the prisoner number of factors are considered. These are referred to as mitigating and aggravating factors.

Mitigating Factors:

8.	The following are the mitigating factors:

•	The prisoner is a first time offender with no prior convictions.
•	No permanent injury was sustained.
•	Prisoner acted alone
•	Not a planned offence

Aggravating Factors:

9.	The following are the aggravating factors as I found:

•	The prisoner pleaded not guilty and a trial was conducted.
•	The victim is well known to the prisoner. The prisoner is married to the sister of victim's husband.
•	Prisoner pleaded not guilty so a trial was conducted.

Aggravating Factors:

10.	Mr. R. Kasito of counsel for the prisoner submitted that the prisoner is 41 years old, married with four (4) children of his own and one (1) adopted son. He is a Subsistence Farmer who grows cabbages and potatoes and sells at Lae Market. Prisoner completed grade 2 in 1978. He worships with Lutheran faith. Mr Kasito submitted that under s. 347 (1) 15 years is the maximum sentence if the offence is committed without any form of aggravation. He submitted that the court has discretion under s. 19 of the Criminal Code Act to impose a lesser term of penalty.

11.	 Mr. Kasito further submitted that since no circumstances of aggravation has been pleaded in the indictment; the circumstances of aggravation should not be considered. Mr. Kasito relied on the case of State v Mamo Time (No. 2) CR. No. 92 of 2012 (26.10.12) Unreported. In this case Yagi, J noted no circumstance of aggravation was pleaded in the indictment. The court imposed starting head sentence of 9 years. In this instant case, Mr. Kasito submitted for 7 years as the head sentence. However, taking the mitigating and aggravating factors together a starting head sentence of 5 years should be appropriate. The court should then suspend whole or half of the sentence as the prisoner has a disease.

Submission by State

12.	Mr. K. Umpake of counsel for the State submitted that the court should consider the circumstances leading up to the commission of the offence. He said there is a need to protect women and girls at the hands of men. He went on to say the offence committed is serious and it deprives women of their rights to privacy.

13.	Mr. Umpake cited the following cases to the court; John Aubuku v The State [1987] PNGLR 267; State v James Yali [2006] N2989; State v Frank (No. 2) [2012] PGNC 88, N4700 (13 June, 2012). 

14.	 In John Aubuku v The State (supra) the Supreme Court in 1987 developed sentencing guidelines for rape cases. Other subsequent decisions expressed the need to review and increase the sentencing tariffs for rape cases. In State v Yali (supra) in Aubuku (supra) and recommended for increase. In State v Frank (No. 2) supra, I followed Cannings, J in Yali's case but reviewed rape cases involving serious aggravating factors and devised in Table C 5 Rape Bands which I suggested that the Supreme Court could apply and develop new sentencing guidelines for rape cases.

15.	 In the present case, the prisoner is married to the sister of victim's husband. So, the prisoner is very much familiar to the victim. As I described in State v Frank (No. 2) (supra), the rape of the victim in this case is not one of the stranger rape but an acquaintance rape.

16.	The prisoner pleaded not guilty thus forcing the victim to come and give her evidence. The victim was vigorously questioned but she stood the test. I have observed her from the Bench. She spoke, her evidence never shaken and she maintained her evidence till the end. In State v Frank (No. 2) (supra), I made these comments: 

"It has been noted further that testifying about is often difficult, particularly in public, and can result in rejection by victim's family and community."

17.	I went further and said the following;

"In addition, traditional court practice and procedures have been known to exacerbate the victims' ordeal during trial. Women who have been raped and sought justice in the legal system commonly compare this experience to being raped a second time."

18.	In Mano Time (No. 2) (supra), Yagi, J considered the starting head sentencing of 9 years as there was no circumstance of aggravation pleaded in the indictment. Depending on the facts and circumstances of the case, the prisoner was to serve 6 years, 11 months and 22 days imprisonment.

19.	In Rudy Yekat v The State (2000) SC 665, the Supreme Court confirmed a sentence of 8 years where the prisoner used a bush knife, threatened the victim and raped her. In the present case there was no circumstance of aggravation like the prisoner held a bush knife and threatened the victim. Because of this I consider appropriate head sentence of 9 years. I deduct the pre-trial custody period of One (1) year, 2 months and 3 weeks. This will live the balance sentence of 7 years, 9 months and 1 week for the prisoner to serve. A Warrant for Commitment will be issued in these terms.
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Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner