State v Sakaponi [2017] PGNC 240; N6902 (14 August 2017)

N6902

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1719 OF 2014

THE STATE

V

JOE JAMES SAKAPONI

Kimbe : Miviri AJ
2017 : 14^th August

CRIMINAL LAW- Plea-attempted rape S348 CCA-attacked on a public road-armed with a bush knife-no medical report on victim-serious assault with intent-saved by witnesses.

Facts

The Defendant chased after the victim armed with a short bush knife. He kicked her leg and when she fell he tried to get on top of her. She struggled also calling out persons nearby who heard her and came to her aid and the accused ran away.

Held

Defendant pleaded guilty to the charge of attempted rape. It is a serious and prevalent offence. The offender is sentenced to 7 years IHL minus time on remand.

Cases cited:
Mebil v The State [2004] PGSC 24; SC749 (30 April 2004)
State v Chadrol [2011] PGNC 211; N4648 (23 May 2011)
State v Paulus [2002] PGNC 97; N2241 (21 May 2002)
Saperus Yalibakut vs. The State [2006] PGSC 27; SC 890 (27 April 2006)
William Norris v The State [1979] PNGLR 605.

Counsel:
R. Luman, for the State

B Popeu, for the Defendant

DECISION ON SENTENCE

11^th September, 2017

1. MIVIRI AJ: This is the sentence of a man who chased and attacked a lone woman intending to rape her but stopped by persons nearby.
   

Short facts

2. The victim was on her way to see a relative on 29^th May 2013 at Kapore. It was broad day light and the Defendant came from the rear and kicked her in the leg. She fell and he came upon her armed with a small bush knife, produced it and demanded for sex with her. She did not accede to him but struggled and fought with him. In the course she called out drawing persons resident nearby who came to her rescue chasing the Defendant away.
   

Law

3. The indictment was under section 348 attempted Rape
   

“A person who attempts to commit the crime of rape is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years”

Issue

4. The issue for the court to determine is what is an appropriate sentence to impose upon you?
   

Background facts

5. This was a broad day light attack by the prisoner whilst armed with a bush knife. He was so determined on self –gratification, he was prepared to use force to accomplish. Including the weapon he held the bush knife which he put to the neck of the victim. And there was struggle between them for him to maintain the knife there and for her to remove the knife or not allow to be injured from it. There is determination by the Prisoner to commit the offence but had it not being for the good people who lived around that particular area of Kapore he would have committed rape upon the victim. No medical report was obtained and furnished in court as part of the evidence to establish the extent of injuries then and there.
   
6. Women and girls and female members of our family are free and should be allowed to go and come as they please. They should not be attacked as was the case here. They are citizen with the same rights as men and the law makes no distinction. They ought and must be respected for what they are amongst us our mothers, our daughters, our wives, our sisters, our grandmothers. No one has the right to prey on them as if in a jungle for food and survival. A strong deterrent and punitive sentence is called for given these facts. Self-indulgence in alcohol and drugs is not an excuse to avoid what the law spells. Attacks at random on a public street as here must be deterred by strong and punitive sentences. Thoroughfare roads streets must be free, safe and secure for the use of all whether men or women young or old day or night. Consumption of alcohol and use of alcohol as a guise to commit criminal offences must be met with strong and deterrent sentences. Our country celebrates 42 years of independence on 16^th September 2017. Behaviours such as yours must stop.
   
7. Your actions in the light of all these underlying are not warranted. You must be educated and you must be stopped from attacking women who are as here on the road like any other person intent on going about their business or generally life’s calling. She was not a threat to you or anyone. You did not treat her with respect. She was on her way to visit a relative. You are aged 26 years old at the time of the offence. At the date of this sentence you were serving 2 years 2 months 2 weeks for three counts of escaping from lawful custody imposed by this court. You are not a first time offender. You must learn by this sentence to amend your ways because you will not continue in this life of crime forever as the more you breach the law the longer you will spend in custody. If you have not learnt to read the Bible whilst in jail you should because there it says that the wages of sin is death. You must learn now to comply and adhere to the dictates of the law. Women are not objects that you pick and choose to be intimidated, harassed and used as sexual objects.
   
8. In the State v Chadrol [2011] PGNC 211; N4648 (23 May 2011) this court presided by Justice Batari in considering another sexual offence under section 229A of the Code remarked:
   

“To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. The use of a sentencing 'scale' or 'range' as a guide in this exercise is preferred because 'starting points' gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range.”

For my purpose here, I adopt what his honour proposed here in my approach to your sentence.

9. The maximum penalty is imprisonment for a term not exceeding 14 years. Maximum penalties are reserved for the worse case. Given the facts and the circumstances, this is not the worst case and therefore attracting the maximum penalty. But you must be punished to show that every person has a right to the quality of life that they live in. And the law protects all regardless. The sentencing discretion is wide but the control is always that it ought not to be out of all reasonable proportion to the crime then, if it is out of reasonable proportion to the crime then there is an unidentifiable error: William Norris v The State [1979] PNGLR 605."
   
10. Further under section 19 of the Code there is power to suspend sentence in appropriate cases. Appropriate meaning that not all cases will be the subject of suspended sentences. Facts circumstances will dictate as to whether a sentence is to be suspended or served in custody. The case of Sabiu v State [2007] SC866 was an appeal to the supreme court by the Prisoner who was sentenced to 17 years IHL for pleading guilty to sexual penetration of a 6 year old boy anally. The boy suffered bruising, bleeding and pain as a consequence. He was the nephew of the prisoner; mother of the victim being his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old. So whatever sentence that is passed upon the Prisoner here must be reasonable and proportionate to the crime here of attempted rape under section 348.
    
11. In applying I am also mindful of the case of Saperus Yalibakut vs. The State [2006] SC 890, that when sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty to, as to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt. In the present case the judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty. Those facts related to the issue of lack of consent, which though not an element of the offence, is a matter relevant to sentence. The trial judge erred by not giving the benefit of the doubt to the offender on the issue of consent, in a way that vitiated the sentence. The sentence of 17 years was accordingly set aside and substituted with a sentence of 14 years imprisonment.
    
12. In the State v Paulus [2002] N2241 the defendant under the pretence of helping the victim to look for her husband who was with another woman went to several locations. Just immediately before the attempted rape she had gone into bushes nearby to relieve her bladder when he set upon her pushing her to the ground and spreading her legs in an attempt to insert his penis into her vagina to rape her. She struggled with him making his advances without any success. He pulled out a knife and stabbed her on the back of her head. She was bleeding and saw a police vehicle and alerted with the prisoner running away and hiding. He was sentenced on his guilty plea to 9 years IHL.
    
13. In Mebil v The State [2004] SC749, the prisoner appealed to the Supreme Court arguing that the sentence of 7 years imposed upon his guilty plea to attempted rape was excessive and not proportionate. He was armed with a bush knife and had waited for her in ambush and dragged her into the bush and kept her captive using a bush knife. There was strong resistance from the victim and they struggled for some time and he tried hard to penetrate her private parts but she was too strong for him. He committed other indignities upon her and cut her two "hands" with the bush knife. The appellant is not a young man. He was a mature 24 year old man with work experience and he exhibited strong criminal behaviour, for which a strong punitive sentence was appropriate.
    
14. Had help not arrived his victim would no doubt have ended up as in Paulus (supra) and Mebil (supra) his plea has saved her from coming to court and giving evidence on what happened to her. He has saved the court time in the matter. Like the two cases a bush knife was used but no injury eventuated because of the consistency in the way the victim fought him. And also because of the neighbours who came to her rescue. It is a crime of violence and an immediate custodial term is called for.
    
15. Accordingly, given all the facts, circumstances discussed and set out above an appropriate sentence is 7 years IHL and I so impose. I order deduction of any time on remand from that head sentence.
    

Ordered Accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant