State v Hamau (No.2) [2015] PGNC 275; N6190 (7 December 2015)

N6190

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 612 of 2011

THE STATE

-v-

JOHN HAMAU
(No 2)

Kavieng: Kangwia, J
2015: 18 November
& 07 December

CRIMINAL LAW – Sentence – Rape under s 347 (2) Criminal Code Act – Seriousness of offence compromised by 4 months delay in reporting police – Aggravating and mitigating factors even – PSR favorable to both victim and prisoner – Suspended sentence of 5 years with conditions imposed.

Cases Cited:

John Aubuku v the State (1987) SC 341;
State v Joseph Tanda (2013)
State v Jeffery Wangi (2006) N3016.

Counsel:

R Luman, for the State
M Mumure, for the Prisoner

7th December, 2015

1. KANGWIA, J. John Hamau appears for Sentence. His Honour, Kawi, J convicted him of Rape after a trial, an offence contrary to s. 347 (1) of the Criminal Code Act (CCA).

2. The offence carries a maximum prescribed penalty of 15 years imprisonment.

3. The background to the charge being laid was that the prisoner grabbed the victim from the back, undressed her and sexually penetrated her in his office while the victim was trying to set the prisoner's computer. The prisoner was the victim's boss at the time the offence was committed. The offence was committed on 16th October 2010 but the matter was reported to police on 7th February 2011 after the victim missed her menstrual period.

4. The prisoner is no longer married. He is 55 years old and comes from Pire Village, Namatanai. He was the Education Director for NIP when the offence was committed. He is a first time offender.

5. On his allocutus, the prisoner said:

"The case has gone for some time. I am sorry for putting us through all this. I'm willing to pay some compensation to the victim. The motive was not rape per se. It was a vengeance case after 6 months of the incident because I terminated her father's employment. It was consensual sex. I apologize for this."

6. On his behalf, Mr. Mumure sought a fully suspended sentence of 7 – 10 years with compensation orders for the following reasons:

-The prisoner was a first time offender.

-There has been a big delay in bringing this matter to conclusion after 1 year 8 months.

-The Prisoner was agreeable to pay compensation within 2 months.

-The victim was willing to accept compensation that she set in the Pre- Sentence Report.

-The offence was not in the worst category of Rape.

-This was an appropriate case for suspended sentence with compensation orders.

7. The Court was referred to the case of John Aubuku –v- the State [1987] SC 341 as providing appropriate guidelines for sentencing.

8. On behalf of the State, Ms. Jack through a written submission highlighted that this was a serious case that warranted a custodial sentence. A term of 6-10 years was appropriate and if suspension was considered then compensation of K5, 000. 00 and food items suggested by the victim in the Pre- Sentence Report were appropriate.

9. The Court was referred to the case of The State –v- Joseph Taule (2013) N5113 and The State –v- Jeffery Wangi (2006) N3016 as guides in sentencing.

10. This is a case in which its seriousness is compromised by the unexplained delay in reporting it as an offence. Four months delay in my view is quite long if the victim was really concerned about a serious offence committed against her. The victim had no apparent difficulty reporting to police soon after the offence was committed but chose not to do it.

11. The case also falls into the less serious category of Rape because the report to police emanated from pregnancy more than rape per se.

12. Secondly, the importance and value reflected in sentencing an offender soon after a conviction has dwindled due to the delay by 1 year 8 months. The prisoner has been on bail after conviction all this time. All this occurred through no fault of the prisoner.

13. Be that as it may, the prisoner has been found guilty of Rape by the Court after a trial.

The issue is on what an appropriate sentence should be.

14. The guidelines for Rape are adequately set out in the case of John Aubuku –v- the State [1987] PNGLR 267. The tariffs suggested therein could still apply with modifications despite a general increase in the sentences imposed by the Courts these days for Rape simpliciter.

15. The present offence fits into category 2 of the John Aubuku case which suggested a 5 year starting point for Rape committed by an adult in a contested case without any aggravating or more mitigating factors.

16. The two cases cited by Ms. Jack are in my view more serious with serious aggravating features.

17. The present case is one that falls under the lower end of Rape. There is the bare possibility that had the victim not fallen pregnant there is every indication that the sexual penetration would not have been reported at all.

18. The factors in aggravation and mitigation are in my view equal. Despite that, the offence is prevalent and warrants a deterrent sentence. That can be properly done through a custodial sentence.

19. However, that is not possible under circumstances where the Pre-Sentence Report is favorable to both the prisoner and the victim. The Report shows the willingness of the prisoner to pay compensation and the willingness by the victim to accept the same. The prisoner is willing to pay compensation over time. He made no proposal on the amount he was willing to pay. The victim on the other hand was willing to accept K5, 000. 00 plus two pigs and food stuff.

20. The Criminal Law (Compensation) Act permits K5, 000.00 as the maximum the Court could order. Therefore K5, 000.00 plus two pigs and food stuff would be in excess of what the Court could order and therefore the amount sought by the victim is rejected as untenable.

21. The aggregate effect of all that has been said above is that the following orders shall follow:

1. The prisoner is sentenced to 5 years imprisonment.

2. The whole of the sentence is suspended and the prisoner is placed under probation for two years on the following conditions:

a) He shall pay K2, 000.00 cash with K1, 000.00 valued in kind to be a one off payment within (2) months from today (7 December 2015).

b) He shall be of general good behavior for 2 years with a cash surety of K300.00.

c) He shall refrain from consuming any form of alcohol during the probation period.

3. Failure to comply with any of the conditions during the probation period, the prisoner shall serve the whole of the suspended period.

4. His bail conditions are dissolved and his cash bail shall be converted as his surety.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence