State v Talad [2014] PGNC 135; N5737 (17 September 2014)

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CRIMINAL LAW – sentencing – rape – sentence after trial – no circumstances of aggravation alleged in indictment – Criminal Code, Section 347(1).

The offender was found guilty of one count of rape under Section 347(1) of the Criminal Code. The offender was aged 25 at the time, the victim, who has a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who went to a bushy area close to their house to bathe, he then dragged her to another place and penetrated her vagina with his penis, without her consent.

The State v Eliza Gori & Timothy Aka (2008) N5464
The State v George Tomeme (2007) N5038
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Taliva (2008) N3947
The State v Junior Anton Johannes (2014) N5644
The State v Noutim Mausen (No 2) CR 596/2004, 24.08.05
The State v Stanley Talad (2014) N5646
The State v William Tokon (2007) N5037

1. CANNINGS J: This is a decision on sentence for Stanley Talad who has been convicted after trial of the rape of a young woman. The offender was aged 25 at the time, the victim, who has a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who went to a bushy area close to their house to bathe, he then dragged her to another place and penetrated her vagina with his penis, without her consent. There was no aggravated physical violence. Further details of the offence are in the judgment on verdict (The State v Stanley Talad (2014) N5646).

I say sorry for what I have done. I apologise to the Court and to the lawyers for the time spent on my case. I have been in custody for a long time and I need to get back to the village to look after my father, who has difficulty doing physical work due to his Rugby injuries. I have garden crops to look after. The family depends on me to help them survive. The small house I was living in needs to be fixed up. This is the first time I have been in trouble with the law. I am a villager and I do not want to go anywhere else. I ask for the mercy of the court and to be put on probation.

4. Stanley Talad is aged 26. He is from the Finschhafen area of Morobe Province but he has been living at Nobnob village in Madang Province, for a number of years, where the offence was committed. He is single. He is the first-born in a large family. He has never been to school. He has no formal employment record and has no regular source of income. His health is sound. He has no bad community record. His adopted father, who also lives at Nobnob, doubts the correctness of the conviction. He said that he knew that his son was having a relationship with the victim, but the victim's parents did not know about it, and that is why they reported the matter to the Police. He asked for leniency for his son, who is not a bad person, and he wants the opportunity for the two families to reconcile. The attitude of the victim's father is the opposite of the offender's father. He is disgusted by the offender's actions. The offender took advantage of his disabled daughter and he ought to be punished severely.

5. Mr Inisi acknowledged the seriousness of the offence but stressed that there were a number of mitigating factors: the offender acted alone; he did not torture or confine the victim or use any weapons or cause her serious physical harm or pass on any sexually transmitted disease and he committed no further indignity on the victim. He submitted that a sentence of ten years would be appropriate.

6. Mr Pil submitted that a sentence of 12 years should be imposed as there was a serious breach of trust, the victim is a young, disabled and vulnerable person and a deterrent sentence was required.

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

(1) A person who sexually penetrates a person without [her or] his consent is guilty of a crime of rape.

9. In this case no circumstances of aggravation were included in the indictment. Therefore the maximum penalty is 15 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. In The State v James Yali (2006) N2989 I expressed the view that the starting points when sentencing for rape should be:

I follow that approach in this case and use 10 years imprisonment as a starting point.

11. Before I fix a sentence I will consider recent sentences I have imposed for rape simpliciter, ie the crime of rape under Section 347(1) committed without circumstances of aggravation, as shown in the following table.

No	Case	Details	Sentence
1	The State v Noutim Mausen (No 2) CR 596/2004, 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
2	The State v James Yali (2006) N2989, Madang	Trial – mature aged offender raped 17-year-old sister of his de facto wife – conviction under Section 347(1).	12 years
3	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
4	The State v George Tomeme (2007) N5038, 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 William Tokon (2007) N5037, Kimbe	Guilty plea – offender, aged 18, raped young woman, in company of three other offenders – victim had been pack-raped the day before the offence was committed – conviction under Section 347(1).	8 years
6	The State v Joe Taliva (2008) N3947, Madang	Guilty plea – offender, aged 20, raped 18-year-old friend, who was pregnant – planned offence – victim lured to secluded location by trickery – conviction under Section 347(1).	10 years
7	The State v Eliza Gori & Timothy Aka (2008) N5464, Kimbe	Guilty pleas – male offenders aged 16, raped 17-year-old female cousin – planned offence – victim lured to secluded location by trickery – conviction under Section 347(1).	8 years
8	The State v Junior Anton Johannes (2014) N5644, Madang	Trial – offender and victim of similar age – victim, a neighbour, dragged off a public road and into bush - no aggravated violence – no remorse - conviction under Section 347(1).	12 years

12. The head sentence will reflect the following mitigating and aggravating factors.

13. There appear at first glance to be more mitigating factors than aggravating factors. However, the aggravating factors are very strong. As the table of previous sentences shows, in rape cases it is very difficult for an offender to avoid a lengthy sentence if the matter is taken to trial. This case has many similarities with the recent Madang case of Johannes in which the offender was sentenced after trial to 12 years imprisonment. The present offender has at least expressed remorse for his actions – whereas in Johannes the offender refused to acknowledge that he had done anything wrong and did not apologise to the victim. I sentence the present offender to 11 years imprisonment.

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

14. Yes, I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the head sentence the whole of the pre-sentence period in custody, which is 1 year, 5 months.

15. In a sexual offence case the presence or absence of reconciliation between the victim and the offender is, in my view, the major consideration when deciding whether to suspend any part of the sentence. The pre-sentence report shows that the victim, as demonstrated through the attitude of her father, has little interest in reconciliation. It was a traumatic event, involving a serious betrayal of trust. The views of the victim are critical. There will be no suspension.

16. Stanley Talad, having been convicted of the crime of rape under Section 347(1) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

Length of sentence imposed	11 years
Pre-sentence period to be deducted	1 year, 5 months
Resultant length of sentence to be served	9 years, 7 months
Amount of sentence suspended	Nil
Time to be served in custody	9 years, 7 months
Place of custody	Beon Correctional Institution

National Court of Papua New Guinea

State v Talad [2014] PGNC 135; N5737 (17 September 2014)