State v Mako [2014] PGNC 59; N5586 (15 April 2014)

N5586

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 871 OF 2012

THE STATE

-v-

THOMAS MAKO

Tari: Kassman, J
2014: 8, 10 & 15 April

CRIMINAL LAW – Criminal Code Section 347(1) – rape – engaging in an act of sexual penetration of a girl under the age of 16 years without her consent – plea of guilty – many mitigating factors submitted and stated in pre-sentence report but offender escaped from custody prior to delivery of sentence – sentence of seven (7) years imprisonment - time in custody awaiting trial of two years three months deducted.

Cases cited:
Maima v. Sma [1972] PNGLR 49
State v John Kati CR 992 of 2009
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Titus Soumi (2005) N2809
The State v Ndrakum Pu-Uh (2005) N2949.

Legislation cited:

Section 347(1) Criminal Code Act

Counsel:

Sheila Luben, for the State
Cecelia Koek, for the Offender

DECISION ON SENTENCE

15th April, 2014

1. KASSMAN J: Introduction: Thomas Mako ("Mako") pleaded guilty to the charge of sexually penetrating a girl under the age of 16 without her consent. This is the decision on sentence.
   

Background

2. The brief facts on which Mako was indicted on 8 April 2014 are:
   

"The state alleges that on the 12th of January 2012, between the hours of 11pm and 12 midnight, the victim Julian Eka was on her way home after watching movies. The State alleges that as she was walking home the accused came from behind her, he grabbed her and pulled her into the nearby bushes. The State alleges that he forcefully removed her dress and pair of shorts that she was wearing. He tore off her underwear and sexually penetrated her by inserting his penis into her vagina. The State alleges that the victim Julian Eka did not consent this act of sexual penetration by the accused. The victim reported this incident to her mother as soon as she got home and then the matter was reported to the police. The charge is laid pursuant to section 347(1) of the Criminal Code."

3. I then asked Mako whether he understood all that was said and he answered, in pidgin language which was translated to English as "I admit it and say sorry. Yes."
   

Allocutus

4. In allocatus, Mako said in pidgin language which was translated to English as:
   

"I want to say sorry to God for the wrongs that I did. I want to say sorry to the court for wasting court's time and money and also to my lawyer for wasting her time and I want to say sorry. I want to say sorry to the victim for the wrong I did and I want to say sorry. Now am asking the court to feel sorry for me and have mercy on me. "

Antecedents

5. Mako has no prior convictions.
   

Personal particulars

6. Mako is now 25 years old and is from Yuwanda Village, Tari/Pori District in the Hela Province. He is single. He is the fourth born in a family of six. He completed grade six in 1996 but did not further his formal education. His parents have passed away. Mako was raised by his uncle, John Tiga who is the chairman for peace and good order committee and also the councilor for Ward 2 in the Hifuka LLG. Mako became a driller after obtaining training provided by a Community Development Initiative in Moro. He was employed by Ok Tedi for three years. His is a member of the Evangelical Church of Papua New Guinea. While employed, Mako financially supported his brothers and sisters.
   

Pre-sentence report

7. The Pre-Sentence Report filed on 10 April 2014 confirms the personal particulars.
   

Relevant Law

8. Section 347(1) of the Criminal Code Act provides "A person who sexually penetrates a person without his consent is guilty of a crime of rape." The prescribed penalty is imprisonment for 15 years however where the offence is committed in circumstances of aggravation, the accused is liable to imprisonment for life."
   
9. The maximum penalty is as provided under Subsection (1) and that is imprisonment for a term not exceeding 15 years. "The general principle is that the maximum punishment should be awarded only in the worst cases." This was said by Justice Prentice sitting as the Supreme Court of the Territory of Papua and New Guinea in Maima v. Sma [1972] PNGLR 49. His Honor quoted the principle applied as far back as the early nineteen hundreds in R. v. Harrison [1997] UKHL 5; (1909) 2 Cr. App. R. 94. His Honor also said "The Court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate."
   
10. The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence and this power is provided under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
    

Submissions by Defence Counsel

11. Counsel handed up written submissions. Mako was 22 years old at the time he committed the crime. He is now 25 years old. He has no prior convictions. He is single.
    
12. He pleaded guilty on presentation of the indictment and the brief facts thus saving the victim the trauma of having to relive the traumatic ordeal in open court. This was consistent with his co-operation with police investigations and in the record of interview where he admitted engaging in sexual intercourse with the victim but he maintained it was consensual and he denied using force or a weapon.
    
13. There was no evidence of physical injury sustained by the victim and neither was there any claim that Mako had passed on any disease to the victim as a result of the incident. Mako acted alone.
    
14. Thomas's family has offered to apologize and pay compensation to the victim and her relatives but that offer was never taken up by the victim's family. The victim has moved on and is said to have married and is living outside of Hela Province.
    
15. Against all of this, it is conceded the offence is a very serious matter. Force was used to remove the victim's clothes. There was no consent. Mako was apprehended by relatives of the victim a short time after the incident and taken to police. The offence of rape is prevalent in the country.
    
16. Two other significant factors demonstrate that Mako is a good citizen and deserving of favourable consideration. Firstly, there was opportunity for Mako to escape from custody at Bui-Iebi CIS on 28 December 2013 when there was a mass jail break and a large number of inmates including remandees escaped. Mako remained in custody preferring to submit himself to the law. This must be rewarded favorably. With the shortage of properly trained and equipped manpower at Bui-Iebi, the recapture of escapees will require substantial outlay of limited financial resources. That seems impossible with current management. Further, Mako demonstrates he is a committed Christian and displays the hallmarks of an offender who has realized his errors and who wants to make a commitment to change for the better for himself, his family and society. The CIS officers provided a very positive reference.
    

Submissions by State Counsel

17. Counsel for the State made oral submissions saying this is a very serious offence. The victim was alone, force was used when Mako physically man-handled the victim and approached her from the rear. Despite harsh sentences issued by the Courts, the crime of rape remains prevalent in the country. As deterrence, the starting point must be a custodial sentence. A sentence of between five to eight years imprisonment is warranted. Time in custody of two years and three months must be deducted.
    

Decision making process

18. In State v John Kati CR 992 of 2009 a decision on sentence dated 17 April 2012, I followed the process adopted by Cannings J in The State v Biason Benson Samson (2005) N2799 in determining the appropriate penalty.
    

Step 1: What is the appropriate head sentence, in terms of years?

Step 2: Should all or part of the head sentence be suspended?

Step 3: If all or part of the head sentence is suspended, what conditions should be imposed?

Step 1: What is the appropriate head sentence?

19. I will also adopt the table of cases referred to by Cannings J in The State v Biason Benson Samson (2005) N2799, The State v George Taunde (2005) N2807 and The State v Titus Soumi (2005) N2809 and also by Lay J in The State v Ndrakum Pu-Uh (2005) N2949.

No	Case	Details	Sentence
1	The State v Peter Lare, (2004) N2557 Kandakasi J, Goroka	Offender aged 40 charged with one count of sexual penetration – victim, a girl, aged 12 – offender was the girl's adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to victim – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years
2	The State v Pennias Mokei (No 2), (2004) N2635, Cannings J, Wewak	Offender aged 33 charged with one count of sexual penetration – victim, a girl, aged 13 – offender was the girl's uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with victim or family since commission of offence	15 years
3	The State v Eddie Trosty, (2004) N2681, Kandakasi J, Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – victim, a girl, aged 15 – victim was the offender's girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender	6 years
4	The State v Kemai Lumou, (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – victim, a girl, aged 14 – offender was the girl's uncle – no consent – aggravated physical violence: used bush knife to threaten victim and sexual penetration was forceful – no evidence of physical injuries or infection of victim with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that the victim was his girlfriend, aged 17 and sex was consensual – pleaded not guilty; victim forced to relive crime – no evidence of offender saying sorry to victim and her relatives – no compensation attempted – first offender	17 years

19. As submitted by the State, the crime of sexual penetration of young girls remains prevalent in this country despite the many high sentences of the court. Having considered the relevant factors as stated above, I fix the starting point at eight years imprisonment.
    

Relevant considerations

20. I will now determine whether to increase or decrease the head sentence or leave it at eight years.
    
21. I will also adopt the relevant considerations that were identified by Justice Cannings in the Biason Benson Samson case and the rationale for such method of analysis. For the completeness and particularly for the benefit of the offender, counsel and the author of the Pre-Sentence Report, I set that out in full.
    

"The relevant considerations are:

1. Is there only a small age difference between the offender and the victim?
2. Is the victim not far under the age of 16 years?
3. Was there consent?
4. Was there only one offender?
5. Did the offender not use a threatening weapon and not use aggravated physical violence?
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
8. Was it an isolated incident?
9. Did the offender give himself up after the incident?
10. Did the offender cooperate with police in the investigations?
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace reconciliation ceremony, personally or publicly apologizing for what he did?
12. Has the offender not cause further trouble to the victim or the victim's family since the incident?
13. Has the offender pleaded guilty?
14. Has the offender genuinely expressed remorse?
15. Is this his first offence?
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?"
    

Rationale

"The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. 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.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence. The presence or absence of consent is very important. Absence of consent is not an element of the offence. So, as in Eddie Trosty's case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bush knife, as in Kemai Lumou's case) is used or if there is aggravated physical violence or physical injury caused to the victim. It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare's case where the offender was labeled a sexual predator.

Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered."

Application of considerations

1. I would not say it was a large age difference and it is certainly not a small age difference. The offender was 22 years and the victim 14 years at the time of the crime, that being a difference of 8 years. A difference of 4 years, for a victim over 12 years old, is what I would call a small age difference. This is a neutral consideration.
2. Yes the victim was not far under the age of 16 years.
3. No there was no consent. Thomas Mako admitted the brief facts which alleged that force was used.
4. Yes the offender acted alone, not in a group.
5. The offender did not use a threatening weapon and did not use aggravated physical violence but it is considered force was applied. This is a neutral consideration.
6. Yes the offender did not cause physical injury and did not pass on a sexually transmitted disease to the victim.
7. Yes there was no relationship of trust, dependency or authority between the offender and the victim.
8. Yes this was an isolated and one-off incident.
9. No the offender did not give himself up after the incident. He surrendered to police after being apprehended by relatives of the victim.
10. Yes the offender did cooperate with police in the investigations after he was apprehended.
11. The offender's relatives did offer compensation to the victim or her relatives but there was no peace reconciliation ceremony after charges were laid. This is a neutral consideration.
12. Yes the offender has not caused further trouble to the victim or the victim's family since the incident.
13. Yes the offender pleaded guilty thus saving the victim from going through the indignity of having to relive the ordeal in court before total strangers.
14. Yes this is the offender's first offence.
15. Yes the offender is a youthful offender.
16. Yes there are other circumstances of the incident or of the offender that warrant mitigation of the head sentence.
    
22. In my initial analysis, there were two aggravating, three neutral and eleven mitigating considerations. The mitigating factors far outweighed the aggravating factors. That was the view of the court immediately prior to delivery of sentence which was initially set for 2:30pm on 11 April 2014. The offender escaped from custody at 1:15pm on 11 April 2014 when he was being walked from the Tari Police Station cells to the Tari District Court House, a distance of about hundred meters.
    
23. I then invited submissions from counsel for the State and Mako as to whether there was any change to their submissions following the escape of Mako. This was done in Mako's absence. After considering those submissions, I have altered my analysis of the considerations. Considerations 10, 12, 14, 15 and 16, a total of five, are changed from mitigating to aggravating considerations and consideration 11 is changed from a neutral to aggravating consideration. The end result being Mako has six mitigating considerations, two neutral considerations and eight aggravating considerations.
    
24. The escape of Mako gives rise to concerns that the positive perception allocated to the five considerations was misplaced. As to consideration 10, his co-operation with police was not out of remorse and honesty but just self preservation. Consideration 11 should now be viewed with concern for the same reason as the offer of compensation again was just "talk" for self preservation and not for a genuine attempt at a peaceful resolution for the hurt and anger that the victim and her family would have experienced. As such, this was changed from a neutral to a negative consideration. Consideration 12 Mako's supposed "good behavior" was not out of remorse and honesty but again just self preservation. Considerations 14, 15 and 16 are also changed from mitigating to aggravating factors as Mako's escape from lawful custody defeats all the positive perceptions initially placed to benefit Mako.
    
25. Having reconsidered all of the considerations, despite there being more aggravating considerations than mitigating considerations, I will fix the head sentence at seven (7) years imprisonment. That is one year below the starting point of eight years which is to reflect the fact that were some mitigating factors present that should benefit Mako.

26. At this juncture I note for the record three matters. Firstly, there is no Corrective Institution Service facility operating in Hela Province, despite the existence of a purposely built facility outside Tari Town, constructed in about 2009, which had been vandalized after being left unoccupied. As such, remandees from or for matters arising in the Hela Province are held in CIS Bui-Iebi in neighboring Southern Highlands Province. Those who were to be dealt with this circuit were transported for sittings in Tari, Hela Province and were held in the Tari Police Station cell block. Secondly, this was the first full circuit in the province since taking on responsibility this year for Hela Province in addition to the Southern Highlands Province. Thirdly, despite there being a national court house with courtroom facilities in Tari, there was no stand-by generator and the PNG Power generators that serve Tari Town had been out of service for the last six or so months. This circuit was run from the Tari District Court House which has its own stand-by generator.
    

Step 2: Should all or part of the head sentence be suspended?

27. The offender was arrested and detained on 12 January 2012. He remained in custody until 11 April 2014 when he escaped. In total, the offender was held in custody for two years and three months.
    
28. From the sentence of seven (7) years imprisonment, I will deduct the period held in custody of two years and three months. That leaves the balance of the sentence at four years and nine months.
    
29. Considering the aggravating factors outlined above and the general circumstances of this case are greater than the mitigating factors, Mako does not deserve suspension of any part of the balance of his sentence of four years and nine months.
    

Step 3: If all or part of the sentence is suspended, what conditions should be imposed?

30. There is no suspension of the balance of the sentence so this part does not apply.
    
31. The orders of the Court, now delivered in the absence of Mako, are:
    
    1. A sentence of seven (7) years imprisonment is imposed.
    2. From the sentence of seven (7) years imprisonment, the period held in custody of two years and three months is deducted leaving the balance of the sentence at four years and nine months.
       

Judgment accordingly
____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused