Mebil v The State [2004] PGSC 24; SC749 (30 April 2004)

SC749

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE HELD AT WAIGANI]

SCRA NO. 17 OF 2003

Between

DANIEL KEMI MEBIL
-Appellant-

And:

THE STATE
-Respondent-

Waigani: Injia Dep.CJ, Kirriwom & Gavara-Nanu JJ
2004 : April 1, 14,
April 30

CRIMINAL LAW – Sentence – Attempted rape – Aggravating factors – Strong used to overcome strong resistance – Bushknife used to cut victim’s hands – Appeal against six (6) years imprisonment – Appeal dismissed.

Cases cited in the judgement:
John Aubuku v The State [1979] PNGLR 267
Lawrence Hindeba v The State SC593 (1998)
John Meoao v The State [1996] PNGLR 280
State v Albert Monja [1987] PNGLR 447
Norris v The State [1979] PNGLR 605
State v Tobi Tani N2603 (1994)

Counsel:
Appellant in person
C. Sambua with Ms Johnson for the respondent

DECISION

30 April 2004

BY THE COURT: On 14 February 2003, the appellant pleaded guilty to a charge of attempted rape before the National court at Waigani.

He was sentenced to seven (7) years imprisonment in hard labour. He appeals against the sentence on the ground that the sentence was excessive in the circumstances. He submits that seven (7) years is a long time in prison and his education and employment opportunities will be lost. The circumstances of his offence were not as serious as two other attempted-rape cases (Albert Monja and Otto Mara) in which a sentence of 3 years and six years were imposed by other judges. He pleaded guilty before the court and asked the court for its mercy but the Court did not accept his plea. Whilst serving his term, he has learnt his lesson and is now a changed person. He asks this Court to have compassion and reduce the sentence to a lighter term, and be released on probation or on good a behaviour bond.

Mr. Sambua for the respondent submits that this was a serious case of attempted rape. He was armed with a knife and he threatened her, assaulted her and tore her clothes, and was intent on raping her only to be saved by other women who came to her rescue when she cried out for help. He submits the maximum punishment is fourteen (14) years imprisonment and seven (7) years in the circumstances is a reasonable sentence.

Mr Sambua also submits the case of Otto Mara was also a bad case of attempted rape for which Kandakasi J sentenced him to 6 years imprisonment. He submits, the court took into account all the matters raised by the appellant, and balanced these with the circumstances of the offence, and imposed an appropriate sentence. The appellant has not shown any error on sentence and the appeal should be dismissed.

We are satisfied from His Honour’s judgement that His Honour in considering the appropriate sentence took into account all relevant mitigating factors placed before him. These include his guilty plea, expression of remorse, first offender, damage to his family’s properties in a revenge attack and the fact that he was a "bright young man because you went to a National High School, completed Grade 12" but he spoilt his opportunity of completing his education and his good record, His Honour balanced those mitigating factors against the seriousness of the offence of attempted rape and the gravity of the circumstances of the offence itself. His Honour said this was a bad case of attempted rape in that he took her to the bush, and wanted to rape her but he was too strong and he tried to cut her with a knife, and broke her clothes and took them off her body. Had it not been for the intervention by other women, she would have been raped. His Honour said the mitigating factors became "insignificant factors given the gravity of the seriousness of the offence." He said sentences for "rapes and attempted rapes had gone up in recent times."

We accept Mr Sambua’s submission that the onus is on the appellant to demonstrate an error in His Honour’s exercise of his sentencing discretion.

The principles on appeal against sentenced is established in the oft-cited passage in Norris v The State [1979] PNGLR 605 at 612:

"So the question in practice on a sentence appeal is usually this-has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable; thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion."

We find no identifiable error on either the facts or of law. On the question of excessiveness of the sentence, the issue is whether the sentence is out of reasonable proportion to the circumstances of this particular crime, such that we may infer that some error must have occurred in His Honour’s sentencing discretion.

In dealing with this issue, it is important to give paramount consideration to the circumstances of the offence.

In the present case, we accept that there were some special mitigating factors such as his education background and some work experience between in 2001 – 2002. But we agree with the trial judge that these factors were far outweighed by the gravity of the crime. Although the trial judge did not make complete reference to the manner in which the appellant committed the offence, we agree with His Honour that this was a bad case of attempted rape. The victim’s statement clearly shows far more serious threats, assault, tearing off clothes, invasion of her private parts and infliction of physical injuries than those described by the trial judge. He was armed with a bushknife and had waited for her in ambush and dragged her into the bush and kept her captive using a bushknife. 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 bushknife.

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.

We agree with the trial judge that rape or attempted rape and other crimes of violence are serious offences which are increasingly prevalent in our country.

The sentencing tariff for rape is set out in John Aubuku v The State [1979] PNGLR 267. For rape without aggravating features, a starting point of five (5) years imprisonment is suggested. For a rape with aggravating features such as abduction of the victim and holding her captive, a starting point of eight (8) years is suggested . For rape with additional aggravating features such as the use of a weapon to frighten or wound the victim, a higher sentence is suggested. Using this tariff as a guide, sentences for attempted rape, with or without aggravating features, will be lower than those suggested for rape. It is important to recognize however, the fact that sentences for rape have increased significantly over the years to counter the increase in this serious crime of personal violence: John Meoao v The State [1996] PNGLR 280; Lawrence Hindeba v The State SC593 (1998). Some ten (10) years ago, it was not unusual to see sentences for attempted rape with no special aggravating factors, in uncontested cases, imposed by the Courts in the range of between 3 – 5 years imprisonment: see State v Tobi Tani N2603 (1994), State v Albert Monja [1987] PNGLR 447. Since then, sentences for attempted rape have also increased.

In the present case, we are satisfied that there were aggravating features in the present case such as the persistent and strong force used to overcome the victim, near sexual penetration of the victim’s private parts, and the infliction of physical injury with the use of a bushknife, which warranted a heavier sentence than the one imposed by the trial judge. For these reasons, we do not think the sentence in the circumstances was out of reasonable proportion to the crime. We dismiss the appeal and confirm the sentence of the National Court.
____________________________________________________________________
Appellant in person
Lawyer for the Respondent: Public Prosecutor