N8063
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 547 of 2017

THE STATE

V

DONALD ROBERT

Kokopo:  Susame AJ
2019:  19 September, 7 October

CRIMINAL LAW – Sentence after trial- Offences - Armed Robbery and Sexual Penetration –s 386 & 347 of the Criminal Code –Pack Rape – 3 persons involved - More aggravating factors –  Serious separate and distinct offences committed – Sentences made consecutive – Totality principle applied –  2 years  for robbery, 12 years for rape- Aggregate sentence 14 years. 
                             
Cases Cited:

Gimble -v- The State [1988-89] PNGLR 271
Hindemba v State (1998) SC593
Philip Kassman v The State (2004) SC759
Public Prosecutor v Don Dale (1998) SC564
R v Hodgson Unreported Judgment SC, 137 25 October 1978)
Stanley Sabui v The State [2007] PGSC 24; SC866.
Tau Jim Anis v The State (2000) SC642 
The State v Dibol Petrus Kopal (2004) N2431
The State v Mapinai Topin (2019) N7786 
The State v Tomitom (2008) N3301

Counsel:

Mr. Tugah, for the State
Ms. Pulapula, for the Prisoner 

DECISION

7th October, 2019

1.	SUSAME AJ:	   Prisoner is before the court to receive his sentence. After trial  he was convicted on 2 September 2019 for one count of arm robbery and one count of sexual penetration without consent under sections 386(1)(2)(a)(b) and 347(1)(2) of the Criminal Code. 

Facts

2.	Facts upon which he was convicted are found in the earlier judgment on verdict.  I rely on them for purposes of sentencing.

3.	The alleged offences were committed on the night of 23 January 2017 between 10 o’clock and 11.00 o’clock.  Zita Langu and her colleague Nelly Giupagerea were walking home at Arabam village along a bush track. They were returning after attending a school meeting at Warangoi Primary School. On the way they met the accused with his other two accomplices who enquired where they were going. Zita and her colleague told them they were heading for Arabam Village. The accused and his two friends went on ahead while Zita and her colleague waited for students to bring them torches. 

4.	After they got the torch they continued to Arabam.  Along the way a guy jumped out of the bushes. Zita flashed the torch and identified the guy as Max. Max flashed his torch at Zita and blinded her. Max knocked the torch off her. He held Zita’s mouth and with his other hand he held the knife against her neck. Ian Tien removed her bilum with her personal properties of an estimated value of K500.00. Max wrestled Zita to the ground and both were struggling. Accused assisted him and both sexually penetrated her. 

Allocutus

5.	In regard to his sentence prisoner said: It was his first time to appear in court. He is thinking of going back to school. He is the first born in the family. He assists his parents. He apologised to the court for his actions. He asked the court for leniency and place him on good behaviour bond. 

Mandatory Penalties

6.	For an ordinary armed robbery mandatory maximum penalty is 14 years imprisonment term. [s 386 (1) ].

7.	In a robbery involving use dangerous weapons, involving more than one person and another person is wounded or uses threats of violence mandatory maximum penalty is death sentence subject to section 19 of the Criminal code. [s386 (2) by amendment No.6 of 2013, 18 September 2013]

8.	For offence of an ordinary sexual penetration case 15 years imprisonment is the maximum penalty. [s 347 (1) ]

9.	Where sexual penetration is committed with circumstances of aggravation maximum penalty is life imprisonment subject to s 19.  [s 347 (2) ]

10.	Parliament in its wisdom introduced a new section, 347C creating a new offence of Aggravated Rape by amendment No.6 of 2013.

“Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent- 

(a)	whilst armed with a dangerous weapon or offensive weapon or instrument; or
(b)	 in company with one or more other persons; or
(c)	causes grievous bodily harm to a person, before, after, or in the course of the offence; or
(d)	of the victim a child under the age of 10 years,

is guilty of the crime of aggravated rape and shall be sentenced to death.”

11.	Court may impose the maximum penalty for any particular offence if facts and circumstances are such that they are very serious or grave to be classified as the worst case ever encountered in practice. 

12.	What factors should the court look for in a case to justify the maximum penalty in any particular offence?
13.	In the Court of Criminal Appeal (Lord Denning M.R Widgery and MacKenna JJ) in R v Hodgson Unreported Judgment SC, 137 25 October 1978) the following factors were considered. 
“1. Where the offence or offences are in themselves grave enough to require a very   long sentence;
2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and  
3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

Unless those features are lacking a penalty lower than the maximum should always be imposed, of course guided by tariffs in decided cases and sentencing guidelines. These factors are lacking in the present case. 
Sentencing Considerations & Guidelines in Robbery Cases

14.	Gimble -v- The State [1988-89] PNGLR 271 is the leading authority often relied on in sentencing offenders in arm robbery cases.  The guidelines are:

a)	7 years imprisonment for robbery of a dwelling house,
b)	6 years imprisonment for robbery of a bank,
c)	5 years imprisonment for robbery of a store, hotel, club, vehicle on the road etc.., and
d)	3 years imprisonment for robbery of a person on the street. 

15.	The guidelines or head the starting sentences in Gimble v The State were prescribed 30 years ago and have been considered by the courts in the present day as outdated.  They are inadequate and having no real deterrence effect on frequent occurrences of arm robbery in recent time. Couple of these cases are Public Prosecutor v Don Dale (1998) SC564 Tau Jim Anis  v  The State (2000) SC642 and Philip Kassman v The State (2004) SC759 . 

16.	In Public Prosecutor v Don Hale (supra) Supreme Court suggested a common denominator of 3 years for robbery of a dwelling house at night and increased the starting sentence of 7 years to 10 years due to prevalence of the offence. 

17.	Following the concerns expressed by the Supreme Court we have seen a gradual increase in starting sentences from those prescribed in Gimble v The State in recent times. I have followed the trend in my recent judgments. One of which is The State v Mapinai Topin (2019) N7786 (04 April 2019). It was plea a case involving robbery of a PMV 15 seater van on a road (category 3).  I considered 10 years was appropriate starting sentence. Because of the offender’s early plea I allowed a discount of 1 year leaving a resultant sentence of 9 years less time spent in custody.  

Sentencing Considerations in Sexual Penetration Cases

18,	Sentencing guidelines in sexual penetration cases are found in Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866. These guidelines are frequently used by the courts. They 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 the police in their investigations? 
Has the offender done anything tangible towards repairing his wrong?  
e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did? 
12. 	Has the offender not caused 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? 

19.	The above guidelines more or less give an indication of factors weighing for and against the offender. 

Mitigating Factors

•	I consider these factors in the offender’s favour
•	Offender voluntarily surrendered to police
•	First time young offender
•	No serious physical injury or grievous bodily harm
•	No sexual disease was transmitted to the complainant
•	There was no relationship of trust, dependency or authority 
•	No further trouble caused to the complainant and her family

Aggravating Factors 

20.	I consider the following factors weigh against the offender.

•	A lot of time and cost was incurred on account of trial being conducted.
•	The offences were committed in the cover of night
•	More than one person was involved in committing the offences
•	Bush knife was used with threats of violence
•	Complainant was traumatised and suffered emotional stress
•	Remorse expressed without anything tangible done to reconcile with the complainant 
•	Properties stolen have not been returned 
•	There was lack of consent 

Pre-Sentence Report

20.	I have read the report. Offender and his family are migrants from Sakeleng village, Nawae District in Morobe Province. They are settlers at Riet Block Warangoi area within Sinivit Local Level Government. The highest grade he completed is grade 12 at Utmei Secondary School in 2016. Except for the parents favourable report of their son no other views were obtained from members of the community offender resides and the complainant. For that reason the report is unbalanced.

Comparable Cases 

Robbery 

21.	I have been referred to several decided cases for guidance. They were decided on their own merits and are not binding. Variety of sentences were imposed. The facts of this particular case are unique and distinct from the cases referred.
  
22.	In this case robbery occurred on a street which places it under category 4. However, the 3 years starting sentence has been considered inadequate and outdated in the light of prevalence of arm robbery cases in recent times. I will increase the head sentence for that category 4 street robbery to 8 years.  Hence, starting sentence in the present case will be 8 years. 
  
23.	Should I go up or lower?  It was an ordinary robbery case with no circumstances of aggravation. Offender is a youthful first offender.  He was 18 years old when he committed the offences. Complainant received no serious physical injuries.  Value of items stolen were of no substantial value. Offender was not the one who stole the items.  Considering those factors in the exercise of my discretion I will go lower.  The effective sentence offender will receive for offence of robbery will be 5 years.

Rape

24.	Offender in the present case has been charged and convicted for rape with circumstances of aggravation. 

25.	For aggravated pack rape cases sentences attracted 15 years sentences and above, which was observation made by Kandakasi J (as he then was) in The State v Tomitom (2008) N3301.

26.	This is a pack rape case involving three persons.  Offender and his other accomplished took turns sexually penetrating her without her consent under threatened violence.   

27.	With regard to the offence of rape I endorsed the observations of the Supreme Court in Lawrence Hindemba v State (1998) SC593 per Woods, Injia and Sawong JJ where the court said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

28.	I consider the starting sentence of 15 years is appropriate in this case. I will not go up any higher as I consider the 15 years sentence is adequate. 

Concurrent and cumulative sentence

29.	The next question is should the sentences be made consecutive or concurrent? 

30.	Ms. Pulapula submitted sentences be made concurrent. Mr. Tugah concurs on the basis of the one transaction rule. That is, offences were committed on one incident on the same victim and from the same set of facts.

31.	Lay J The State v Dibol Petrus Kopal (2004) N2431 when sentencing the offender convicted for offences of robbery and rape made this observations on the issue of concurrent and cumulative sentences.

“The Supreme Court has considered the question of whether or not sentences for rape and robbery should be cumulative or concurrent. In Acting Public Prosecutor v Konis Haha[1981]PNGLR 205  the Court said:

"We consider that the inherent gravity of the offence of rape on the one hand and armed robbery on the other and their separate nature, albeit committed within a short space of time, should lead to separate and consecutive sentences. Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate"...The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive." ...'

32.	The offender was sentenced to 14 years for rape and 8 years for robbery total of 18 years consecutive sentence. However, applying the totality principle court was of the view 18 years sentencing was crushing and excessive. Sentence was reduced by 2 years each, 10 years for rape and 6 years for robbery leaving an aggregate sentence of 16 years. 

33.	I adopt and apply the principles in this case. Offence of arm robbery and rape are very serious offences. They are distinct and separate although committed on the same occasion. Sentences will therefore be made consecutive, subject to the totality principle.  The sentence is aimed at personal and general deterrence. Aggregate sentence prisoner should serve consecutively is: 5 plus 15 equals 20 years.  However, I consider 20 years sentence is quite crushing and excessive on a young offender. Applying the totality principle sentence will be reduced by 3 years each.  

Sentence

34.	This is the sentence prisoner will receive. 

1.	For the offence of arm robbery prisoner is sentenced to 2 years 
2.	For the offence of sexual penetration prisoner is sentenced to 12  years 
3.	Total sentence prisoner will serve is 14 years. 
4.	No portion of the sentence will be suspended.
5.	Prisoner shall serve his sentence at Kerevat Jail with hard labour.

35.	I further order that prisoner to attended all rehabilitation programmes and church activities/ programmes initiated within Kerevat Jail. 

36.	Prisoner’s cash bail to be refunded 
_______________________________________________________________
Office of the Public Prosecutor:	Lawyers for the State
Office of the Public Solicitor:	Lawyers for the Prisoner