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State v Masa [2000] PGNC 79; N2021 (20 December 2000)

N2021

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 542 of 2000

THE STATE

-V-

OTOM MASA

LAE: KANDAKASI, J.
2000: DECEMBER 5, 12, 20

CRIMINAL LAW - Sentence - Attempted rape of 3 year old girl - Guilty Plea -Victim related to accused - No aggravating factors – Sentences to be guided by sentences in other sex offences – Pre-sentencing report need not be followed - Criminal Code Act (Ch.262) s. 348

Cases cited:

The State v. James Garave Guba unreported and unnumbered judgement delivered on the 19th of December 2000 here in Lae) CR 340 of 2000

The State v. Albert Monja [1987] PNGLR 447
The State v. Thomas Dika Guta (unreported but numbered judgement of Doherty AJ as she then was) N841
The State v. Thomas Pipon [1998-89] PNGLR 179

The Secretary for Law v Kwauga [1974] PNGLR 135

Counsel:

N. Miviri for the State
M. Mwawesi for the Defendants

DECISION ON SENTENCE
20 December, 2000

KANDAKASI, J: On the 5th of December 2000, the prisoner pleaded guilty to one count of attempted rape contrary to s.348 of the Criminal Code Act (Ch.262) (hereinafter "the Code. The administration of the allocutus was uneventful and I proceeded to hear address on sentence mainly from the defence counsel. The State made no submissions. The matter was thereafter adjourned to the 12th of December 2000, to allow for a pre-sentencing report. The report was not ready on that date and the matter was further adjourned to today on the Probation Service’s request. The report is now before the court and the court is very grateful for it. Both counsels choose not to make any submissions.

Facts

On the 11th of August 1999 at Konge village in the Kabwum District of the Morobe Province, the prisoner committed an act of attempted rape against a small girl, then aged 3 years 4 months old. The victim was the prisoner’s niece, going by the victim’s father’s line. Prior to the commission of the offence, the victim was sleeping in her paternal aunt’s house. The prisoner went to that house and woke up the victim and carried her to his own house. Once at his house, he removed the victim’s cloths and his and he proceeded to attempt to have sexual intercourse with the victim through both the victim’s vagina and anus. However, because of the victim’s tender age, the prisoner was not able to effect complete penetration. In the process he caused bruises or lacerations to the victim’s vaginal track as well has her anus and ejaculated causing the victim to cry of pain due to the lacerations and or bruising. The prisoner said he has had no sexual experience before and was only trying to experience it with the victim.

When the victim cried of the pain he caused her, the prisoner took her back to the house he got her from and he returned to his house. Once back at the house she was taken from, the victim complained of pain caused to her and reported what had happened to her to her parents, who reported the matter to the community leaders and the local police. They also took the victim to the local health center for medical examination. An examination carried out on the victim the next day of the incident confirmed the lacerations and or bruises. It also confirmed that due to the age of the victim there was no full penetration.

Address on Sentence

In his allocates, the prisoner asked for a good behaviour bond and he be placed under probation service. In so doing, he stated that he was an ordinary villager with no formal education. His parents are deceased and that he looks after his younger siblings. He also has many properties to look after. Further he said he did not kill the victim and that his sperm fell on the ground.

Mr. Mwawesi for the Defendant submitted that his client was the 3rd out of 4 children in the family. His client has no prior convictions and this is his first ever offence. He is about 21 years old. His client pleaded guilty to the charge, thereby saving the State and the Court time and expenses that could have been incurred if a trial was conducted. He therefore, supported and endorsed his client’s call for a non-custodial sentence. He also asked that a pre-sentencing report be requested, obtained and considered before sentencing the prisoner, which request was granted. As noted earlier, the court now has a pre-sentencing the report in question.

Mr. Mwawesi was not able to point to an authority to support his argument for a non-custodial sentence or any case on attempted rape. I was therefore, left with no assistance at all, but to look for the relevant case or law on point myself. For future purposes, I will only refer to what I just said in The State v. James Garave Guba (unreported and unnumbered judgement delivered on the 19th of December 2000 here in Lae) CR 340 of 2000, and ask that, counsel ensure not to repeat this kind of conduct.

The pre-sentencing report

The pre-sentencing report recommends a non-custodial sentence with conditions. However, for the reasons I am soon to go into, I have decided against imposing a sentence in line with that recommendation. In so deciding, I note that, a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases.

The offence and sentencing trend

The offence of attempted rape is prescribed by s. 348 of the Code. It carries a penalty of up to 14 years imprisonment.

The only reported case on point is The State v. Albert Monja [1987] PNGLR 447. In that case, the Defendant pleaded guilty to a charge of rape but was turned to not guilty to run the case as a "test case". After a trial, the defendant pleaded guilty to a charge of attempted rape following the court’s ruling that, the defendant could not be convicted of rape. The offence was committed against a sleeping girl whom the offender thought was a person he knew and that she would respond favourably to her physical advances. At the time the offender was intoxicated with alcohol. Before sentencing, the court took into account the defendant’s background and other factors in mitigation and said at page 448:

However, against those things must be placed the indisputable fact that you committed a serious and all too prevalent crime against an innocent woman. This type of offence is regarded very seriously and calls for a significant custodial sentence. Women must be able to go safely and unmolested about their everyday activities. In my view, but for one final matter I am about to mention, a sentence of about four years imprisonment in addition to time spent in custody to date would be appropriate for this offence.
(Underlining mine)

My search for any other case on point has been unsuccessful. When such is the case, the court must of course have regard to other similar sexual offence cases. I will therefore, have regard to the other sexual offence cases for assistance.

A case, which comes closer to the present, is the case of The State v. Thomas Dika Guta (unreported but numbered judgement of Doherty AJ as she then was) N841. The closeness is only to the extent that the victim was 3 years old and the defendant was charge under s. 215(1) of the Code, which carries a penalty of up to a maximum of 14 years imprisonment. Like the victim in the present case, the victim in that case was taken from her house and sexually assaulted. The assault on that victim was however, very horrendous. Medical evidence showed that "her perineum was torn" and was described as "raggered (sic) and measured 10 centimetres deep. The tissues separating the vagina from the anus were torn and this created one bleeding orifice (hole) measuring 10 centimetres deep". There was other bruising. The victim was found in the early morning of the next day after the assault on her.

The court in that case noted before sentencing that, the child was taken out of the control and care of her parents and from a place where the parents felt that their child was safe with their neighbours watching television. The court also noted that, that was "an innocent and common pastime and should not be considered fraught with dangers". It further noted that, the defendant detained and in effect abducted the child for about 17 hours throughout the night and that he abandoned the child in a seriously injured condition in a deserted swamp where she could have been exposed to further dangers and she had no means of returning home. Furthermore, the court noted that, the child was left in much pain. The court then imposed a sentence of seven years and six months in hard labour.

Another case is The State v. Thomas Pipon [1998-89] PNGLR 179. In that case, the mother of the victim, an eighteen months old child, left the victim, in the care of the accused and another youth while she went out. She later returned and found her daughter unattended, with the two youths asleep. She took the girl and was about to wash her when she noticed what she thought to be sperm between the child’s legs. The mother then asked the two youths which of them had interfered with her daughter. Both youths denied any impropriety. The child was then taken to the Goroka Base Hospital for examination, and was found infected with gonorrhoea. It transpired that, the accused had been treated at the Sexually Transmitted Disease Clinic of that hospital earlier on.

The defendant in that case was charged under s. 213(1) of the Code, which carries a maximum penalty of life imprisonment. The court comprehensively reviewed customary attitudes to this kind of offences and the judicial trend in sentencing in other jurisdictions and the Supreme Court decision in The Secretary for Law v Kwauga [1974] PNGLR 135, where the Supreme Court increase a sentence of 2 years and restriction of movement to a term of four years imprisonment. In that case, the victim suffered lacerations, had some difficulty walking, and the court described it as a "bad case". At page 138 of the judgement to the Supreme Court said:

... taking into consideration all the circumstances we are of the opinion that the sentence of two years’ imprisonment, even coupled with a restriction of movement order, was manifestly inadequate. Further we consider that the trial judge proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and that insufficient weight was given to the need to protect the public and in particular, young girls, from this type of offence.
(Underlining mine)

In assessing sentence, I bear in mind that crimes involving young girls is on the increase, as has been noted in many cases such as, The State v Thomas Pipon (supra) and those since then. Therefore, a deterrent sentence is called for. As the courts have been saying over the years, the courts have a duty to protect the young and as Brunton J said in The State v Thomas Pipion, "Protection of the young and deterring others from molesting them in this way should be paramount".

Present case

In the present case, the prisoner is related to the innocent victim. He is her paternal uncle and much older than her. Therefore, of all people, he would be the least expected to harm her and more so when she was not in any position to defend herself in any way because of her age. There was in my view, a trust if not in fact, at least a de facto one placed on the prisoner by the victim as her uncle. The prisoner however, betrayed that trust.

As did the court in The State v. Thomas Dika Guta(supra) I consider the following factors as aggravating:

1. The victim was a sleep and the prisoner came and woke her up for the purposes of sexually molesting her to satisfy his sexual drive;
   
2. The prisoner removed the victim from an house the parents had no reason to believe that she would be so removed and molested;
   
3. The prisoner forcefully tried to have unlawful carnal knowledge of the victim or rape her but did not successfully achieve penetration because of the victim’s age;
   
4. The victim was very young and only a child and was thus, completely helpless and harmless; and
   
5. A serious harm was perpetrated against the victim by a person who in his right mind could not have done what he did and in so doing he betrayed the trust she place on him.
   

I also note and take into account the fact that, sexual offences especially, rape, attempted rape, defilement of girls under the age of 12 and 16 years and attempts at those offences have not stopped since the cases referred to in this judgement and other cases have been published. It is no longer safe for our girls, and women to freely move around in our society in full utilization of their freedom of movement because of fear of being raped or sexually abused, molested and or assaulted. It is high time now for the courts to consider and start imposing the sentences that have been prescribed with lesser consideration and use of the discretion vested in them under s.19 of the Code, if to do so will deter would be offenders from offending and help develop our nation. I say this because the courts often talk about offender’s rights, background and mitigating factors with no or little regard to the impact on society by the repeated and almost daily commission of offences. The damage the criminals bring upon society is far more than what we may stop to take stock of. The slow down and or deterioration of the society’s development or progress is directly in many cases, attributable to the crimes which raise serious questions and concerns of security and a save place for investment and doing business. If countries like Singapore, which have no or little natural resources, are able to become economically strong there is no reason why a country like Papua New Guinea cannot be successful. Our disadvantage, amongst others, is the number and the seriousness of crimes committed on a daily basis, which is reflective of a sick society.

Against that background, I take into account as I am duty bound to do, the fact that the prisoner pleaded guilty to the charge, he is a first time offender and the circumstances in which the offence was committed was not as serious and horrendous as was the case in The State v. Thomas Dika Guta (supra). Accordingly the sentence in this case will have to be lower than the 7 years 6 months imposed in that case and in any case, with the knowledge that, that case was decided some years back.

The sentence in this case has to be closer to the sentence in the case of The State v Albert Monja (supra), which was 4 years. I quickly note nevertheless that, that sentence was imposed more than 13 years ago. I also note that the victim was not as young as the victim in the present case and did not involve relatives where there is always an element of trust. Clearly, the concerns and words expressed in that judgment, which are quote above at pages 3 and 4 have not been heeded and the particular offence as not stopped. In these circumstances, the sentence needs to be increased to reflect the society’s disapproval and the call for tougher penalties.

In the particular circumstances of this case, a custodial sentence is called for. I consider a sentence of 6 years in hard labour appropriate. Of that, a period of 1 year 4 months and 8 days is deducted on account of the time already spent in custody awaiting his trial. Accordingly, I order that the prisoner serve the balance of his term of 5 years, 7 months and 22 days in hard labour at Buimo CIS.
________________________________________________________

Lawyer for the State: Public Prosecutor
Lawyer for the Defendants: Public Solicitor