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State v Yawoma [2001] PGNC 3; N2032 (19 January 2001)

N2032

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 131 of 1999

THE STATE

-V-

PETER YAWOMA

LAE: KANDAKASI, J.
2001: 17 and 19 JANUARY

CRIMINAL LAW - PRACTICE & PROCEDURE - Plea bargain - Guilty Plea to lesser charge - Possible rape charge reduced to unlawful carnal knowledge of girl under 16 years - Court bound to accept and act on charge presented - Use of depositions for relevant facts - No need to call for pre-sentencing report because of principles on disparity of sentence

CRIMINAL LAW - Sentence - Unlawful carnal knowledge of girl under 16 years - Facts disclose gang rape with injuries to the victim aged 13 yeas - Need to avoid disparity of sentence - Sentenced to 2 years less time spend in custody

CRIMINAL LAW - Criminal Law (Compensation) Act 1991 - Compensation considered inappropriate where the prisoner has no means to pay.

Cases cited:

The State v. Sabarina Yakal [1988-89] PNGLR 129
The State v. John Gurave Guba (19th December 2000) N2020
The State v. Kevin Mariano (18 August 2000) N1984
Andrew Uramani & Others v. The State [1996] PNGLR 287
The State v. Jason Dongoma (Unreported judgement delivered 13/12/00) N2038
The State v. Jack Golu and Mopana Aure [1990] PNGLR 206

The State v. Sottie Apusa [1988-89] PNGLR 170

Counsel:

J. Pambel for the State
A. Raymond (Mrs.) for the Defendant

DECISION ON SENTENCE

19 January, 2001

KANDAKASI, J: On the 17th of January 2001, the State presented an indictment against the prisoner charging him with one count of unlawful carnal knowledge of a girl under sixteen (16) years. That followed a plea bargain between the parties from the more serious charge of rape. The need to avoid disparity of sentence also dictated a presentation of the lesser charge because the prisoner’s co-accused, a Luther Jack was charged with a similar charge and was sentence to two years.

The prisoner pleaded guilty to the charge presented against him. Upon a reading of the depositions, which were admitted into evidence without any objection from the defence, I proceed to confirm the guilty plea and convicted the prisoner of the charge as I was satisfied there was sufficient evidence to support the guilty plea. A decision on sentence was reserve to today. This is the decision.

Facts

It is now a well established practice that, a Court is entitled to use the depositions following a guilty plea to extract the relevant facts for the purposes of sentencing unless there are serious and valid objections against that. A relevant case on point and supporting that proposition is the case of The State v. Sabarina Yakal [1988-89] PNGLR 129. In The State v. John Gurave Guba (19th December 2000) N2020, I followed that practice and said this about the practice at pages 3-4 of the judgement:

In practice the courts invariably read the depositions and use them following a guilty plea to determine appropriate sentences. Thus, there should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decide whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender. On this basis, I will use the depositions to arrive at the sentence in this case.

In line with that practice, I will extract the relevant facts for this case from the depositions, which have been admitted into evidence with the consent of the prisoner.

The incident leading to the charge occurred at about 8:00pm on the 12th of September 1995 at Bulolo, Morobe Province. The victim, then a 13-year-old girl was on her way home, when the prisoner and two other male accomplices confronted her. She was grabbed and pulled into the nearby bushes and raped by all of them in turns. The victim tried to call for help and escape but was effectively suppressed by her rapists. After rapping her, the prisoner and his accomplices left the scene and the victim. The victim managed to get home and reported the incident to her relatives who found her bleeding from her vaginal area. The victim’s relatives reported the matter to police and took her to the nearest Health Centre.

According to medical evidence on file, the victim was medically examined on the 14th of September 1995. The examination revealed that the victim sustained bruises and lacerations to her vaginal wall, her hymen was torn and was still bleeding from her vagina. A copper coiled wire was also found pushed or inserted into her vagina. Further, there was evidence of penetration and presence of sperm in the vagina.

The prisoner was at large for almost three years from the date of the commission of the offence until he was arrested on the 1st of September 1998. When he was finally arrested, he denied having anything to do with the victim. Then when he was placed under lawful custody awaiting his trial, he escaped and was recaptured, charged and convicted of escape. He was sentence to serve 6 months by the District Court and he has fully served that term.

Comment

This was clearly a case of a gang rape of a 13-year-old girl. Serious physical injuries were inflicted upon her person, especially her vagina, which included the insertion of a copper wire coil. She was forced to bleed as a consequence and continue to suffer even after the rape on her. One could imagine that was in addition to the psychological scares and pains she was left to suffer for the rest of her life without any professional medical help, which is a rarity in most of Papua New Guinea. The prisoner did not cooperate with police and after his arrest he escaped from lawful custody.

The Court does not have the necessary information and thus, does not know the reason for reducing the charge from one of rape to unlawful carnal knowledge for the prisoner’s co-accused. That was very unfortunate for the society and the victim because the State in this case was forced to charge the prisoner with the lesser charge to avoid offending against the principles on disparity of sentence.

I am tempted to disregard the disparity principles and proceed to sentence the prisoner on the more serious offence of rape. The offence of rape is a very serious offence against women and or girls and is an unspeakable evil against society. The consequence of such offences are having a serious negative impact against our society apart from the serious impact it has against the victim both physically and psychologically. Possible overseas investors or people who could otherwise come into our country with their foreign currencies and thereby help our economy are not coming to our country because of the level and kind of offences such as pack rapes. Our society is thus calling for tougher, deterrent custodial sentences to be imposed in a bid to deter would be offenders from committing such offences. Rape cases attract sentences as high as 20 years as in the case of The State v. Kevin Mariano (18 August 2000) N1984, in the worse type of cases of rape.

Nevertheless, as this Court is bound to follow the rulings of the Supreme Court, I am constraint from proceeding to deal with the prisoner in the above manner. If I proceeded in that manner, the Supreme Court will overrule me has it had done in Andrew Uramani & Others v. The State [1996] PNGLR 287.

Other preliminary issues

Three preliminary issues are presented in this case and I consider it appropriate that they should be dealt with first before proceeding any further. The first issue raises the question of what is the role of the Court when an indictment is presented pursuant to a plea bargain reached between the prosecution and the defence. The second issue is whether the Court is entitled to know about the plea bargain between the parties. The third issue is whether the Court should subsequently use the depositions for sentencing purposes.

These issues are closely related. The third issue has already been covered and answered in the affirmative immediately under the heading, "Facts". There is no need to repeat what has already been stated. As for the first and second issues, they have both been answered in the case of The State v. John Gurave Guba (supra) at pages 2-3 and in the case of The State v. Jason Dongoma (Unreported judgement delivered on 13th December 2000) N2038 at page 4 which are based on the case of The State v. Jack Golu and Mopana Aure [1990] PNGLR 206. They provide authority for the proposition that the Court should accept the indictment that is presented in accordance with a plea bargain and proceed in the normal way. The Court should however, have regard to the fact that there has been a plea bargain leading to the lesser charge for the purposes of determining the appropriate sentence to be imposed for the charge actually presented. This emanates from the fact that, under our Constitutional framework, the Public Prosecutor is the only person or authority that has the power to decide whether or not to prosecute an offender and in what manner and for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then present a charge he considers sustainable.

Address on sentence

The prisoner’s Counsel, Mrs. Raymond, essentially argued for his client to be give the same kind of sentence that was given to his co-accused, Luther Jack. As earlier noted, Luther Jack was also charge with the same offence as the current prisoner and he was given 2 years in hard labour, less the period he already spend in custody awaiting his trial. This is to avoid a disparity of sentence.

The law as mentioned above, going by the Anrew Uramani & Others (supra) case makes it obligatory for co-accuseds to be given the same or similar punishments. A failure to do so stands the risk of being overturned on appeal. Thus, as much as I may be inclined to give a different penalty having due regard to the circumstances in which the offence was committed, I am left with no choice but to impose a sentence similar to the one received by the prisoner’s co-accused.

Imposing such a sentence in my view is more lenient than not given that the prisoner:

1. On the facts, committed the offence of rape in a pack rape situation with serious physical injuries occasioned to the victim who was 13 years old;
   
2. He has not cooperated with the police and other authorities evidenced by him being at large for almost 3 years before being arrested and once arrested and kept in lawful custody, he escaped;
   
3. He as a conviction for escaping;
   
4. Initially he maintained a denial of his involvement in the commission of the offence thereby making the work of the police even harder.
   

The factors submitted in his mitigation are few. He is not a first time offender because of his conviction for escape, although that was committed whilst awaiting trial on the initial charge against him for rape. Both his parents are dead and he is the first borne out of 3 children. His siblings are females and they require his support. He is a first time young offender by reference to the date of the commission of the offence and the conviction for escape. His family background could not make much of a difference has the courts have expressed the view that, such factors should be taken into account by the offenders before committing offences. Even if these factors were taken into account, a sentence of more that 2 years would be appropriate in the particular circumstance of the case but for the need to avoid a disparity of sentence.

The offence and sentencing trend

The offence with which the prisoner has been charged with and he has pleaded guilty to is prescribed by s.216 (1)(a) of the Code. It carries a maximum penalty of five years. The penalty provision is subject to s. 19 of the Code.

The only case directly on point is the case of The State v. Sottie Apusa [1988-89] PNGLR 170. In that case the offender, a stepfather had sexual intercourse with his stepdaughter six times over four months. He pleaded guilty to a charge under s. 216 (1)(a) of the Code. A sentence of 3 years two months was imposed. The Court in that case ably set out the relevant guidelines for sentencing in unlawful carnal knowledge cases. Those guidelines are best summarised in the following terms, which appear in the head note to the judgement:

(1) a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical career and patient, and step-father/uncle relationships.

There are other cases on unlawful carnal knowledge but they involve girls under the age of 12 or the offences have been committed against the course of nature or that they have been committed in association with other offences. Strictly speaking therefore, those other cases cannot be of any help. Up to this time, the Courts are left only with the guidelines set out in the Sottie Apusa case.

Taking into account the comments I have earlier expressed and the particular circumstances of this case, I add that to those guidelines, where the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed.

The present case

In the present case, because of the need to avoid a disparity of sentence I cannot meaningfully consider the guidelines set out in the Sottie Apusai case and arrive at a sentence I consider is appropriate and one befitting the circumstances in which the offence was committed. I can only do what I am required by law to do in the circumstances and that is to impose a sentence of 2 years less the time already spend in custody awaiting trial. The total period spend in custody is 1 year 10 months and 18 days as of today. That is the period that will be deducted leaving the prisoner to serve 1 one month and 13 days more in hard labour.

Once again, I say the prisoner is lucky to have been charge with the lesser offence and his co-accused has been treated in a much more lenient way. This leaves the court with no choice but to give the prisoner a similar treatment to avoid disparity of sentence. If it were not for that, I would have given him the maximum five years prescribed by s. 216 (1)(a) of the Code or a much higher term if charge with the crime of rape.

The Court thus orders that the prisoner fully serve the remaining term of one month and 13 days from today in hard labour at Buimo CIS.
__________________________________________________________

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