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State v Omi [2005] PGNC 151; N2808 (22 March 2005)

N2808

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 361 0F 2000

THE STATE

V

PASCAL MAYA OMI

BUKA: CANNINGS J
16, 22 MARCH 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division V.7, Sexual Offences and Abduction – Section 348, attempt to commit rape – sentence on plea of guilty – offender aged 19 years at time of offence, complainant aged 17 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – cousins – isolated incident – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – tangible things done to apologise – determination of maximum penalty – expression of remorse – first offender – youthful offender – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – sentence of one year – all of which shall be suspended on satisfaction of prescribed conditions.

Cases cited:
Doreen Liprin v The State (2001) SC673
The State v Eric Vele (2002) N2252

Counsel:
L Rangan for the State
L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to attempted rape.

BACKGROUND

Incident

The incident giving rise to the charge took place at Malasang No 2 village, Buka Island, Bougainville, on 24 May 1999. It was alleged that the accused attempted to sexually penetrate a young woman without her consent.

Indictment

On 16 March 2005 he was brought before the National Court and faced the following indictment:

Pascol Maya Omi of Malasang No 2 village, Buka Island, Papua New Guinea, stands charged that he on the 24th day of May 1999 at Malasang No 2 village ... attempted to sexually penetrate Joyceline Semei [the complainant] without her consent.

The indictment was presented under Section 348 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea:

At 3.00 pm on the day of the incident the complainant was at the accused’s place at Malasang No 2. At the accused’s request, she and the accused went to a local cocoa plantation to look for ripe bananas. When they got there the accused grabbed the complainant by the arm and pushed her to the ground. He then tried to remove her shorts. He indicated that he wanted to have sexual intercourse with her. She struggled, kicked him and ran away. He attempted to sexually penetrate the complainant without her consent.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I say sorry to the court. I did not know that this was the law when I did this thing. We have reconciled back at the village. The problem is fixed. I am now married with children. I do not know who will be there to look after them if I am not around. I will not do this kind of thing again.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Siminji referred to a number of mitigating factors. The offender has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He committed the offence at a relatively young age. He was only 19. He was arrested the day after the incident and came to Buka at the request of the police. Soon after the arrest he was granted bail. There was only a small age difference between the offender and the complainant. She was not injured by the assault. The incident happened six years ago. It is in the past.

He has made a genuine attempt to reconcile. Mr Siminji presented a statement by village chief, B Hona, that the offender had paid K300.00 cash plus rice, kaukau and tinned meat to the complainant and her family in 1999. The two families had shaken hands and sorted things out. Both the offender and the complainant have since married.

A low-range sentence is appropriate and all of it should be suspended, Mr Siminji argued.

Personal particulars

The offender is now aged 24. He is married. He lives in the village. He was educated to Grade 8.

SUBMISSIONS BY THE STATE

Mr Rangan did not take issue with the claims made about reconciliation. As to the sentence that should be imposed, this was a matter for the court’s discretion, Mr Rangan submitted.

RELEVANT LAW

Section 348

The indictment was presented under Section 348 (attempt to commit rape) of the Criminal Code, which states:

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

Penalty: Imprisonment for a term not exceeding 14 years.

The maximum penalty is therefore 14 years imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the offender can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the offender may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the offender can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point or reference point;
  
• secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly, I will apply those considerations to the facts of the present case.
  

Starting point

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being deal with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of seven years as the starting point.

Relevant considerations

There are a number of considerations that I consider should be taken into account in determining an appropriate head sentence. These are:

1. Was the attempted act not completed due to the offender’s actions?
   
2. Was there only one offender?
   
3. Did the offender not use a threatening weapon and not use aggravated physical violence?
   
4. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
   
5. 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?
   
6. Was it an isolated incident?
   
7. Did the offender give himself up after the incident?
   
8. Did the offender cooperate with the police in their investigations?
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony or personally or publicly apologising for what he did?
   
10. Has the offender not caused further trouble to the victim or the victim’s family since the incident?
    
11. Has the offender pleaded guilty?
    
12. Has the offender genuinely expressed remorse?
    
13. Is this his first offence?
    
14. Can the offender be regarded as a youthful offender?
    
15. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 6 focus on the circumstances of the incident. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1. Yes the attempted act was not completed due to the offender’s actions. He realised, once the complainant repelled his advances, that it was not proper to continue. He appears to have realised immediately that he had made a bad mistake. There is evidence of that in the depositions. He tried to apologise to the complainant immediately after the incident. She was distressed and rejected his apology. However the important fact is that he tried to apologise. This was not a case where an attempted rape was interrupted due to a third party intervention. Therefore, this is a significant mitigating factor.
   
2. Yes there was only one offender.
   
3. Yes the offender did not use a threatening weapon and did not use aggravated physical violence.
   
4. Yes he did not cause physical injury and did not pass on a sexually transmitted disease to the victim.
   
5. No there was an existing relationship of trust in that the offender and the victim were related. They were cousins.
   
6. Yes it was an isolated incident.
   
7. No the offender did not give himself up after the incident.
   
8. Yes the offender cooperated with the police in their investigations.
   
9. Yes he has done something tangible towards repairing his wrong by paying compensation to the complainant and her family.
   
10. Yes he has not caused further trouble to the victim or the victim’s family since the incident.
    
11. Yes the offender pleaded guilty.
    
12. Yes the offender genuinely expressed remorse.
    
13. Yes this is his first offence.
    
14. Yes he can be regarded as a youthful offender. He was only 19.
    
15. Yes the other fact I take into account is, as highlighted by Mr Siminji, the incident happened almost six years ago. Time has moved on. The offender appears to have matured. He is now married. The complainant is also married. Everything he has done since the incident happened, starting with his immediate attempt to apologise and continuing with his compensation gesture, is consistent with someone trying genuinely to make up for doing a bad thing.
    

Conclusion

There are many mitigating factors in this case. The head sentence must be considerably less than 7 years. I regard consideration No 5 as a strong aggravating factor. However there are strong mitigating factors in Nos 1, 3, 4, 8, 9, 10, 11, 12, 14 and 15. The other factors are not significantly aggravating (7) or not significantly mitigating (2, 6 and 13).

I have weighed all the above considerations carefully and fix a head sentence of one year imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

Sentencing trends

In making this decision I have been guided by the Supreme Court’s decision in Doreen Liprin v The State (2001) SC673 (Amet CJ, Kapi DCJ, Los J). It is a leading case which examines the conflicting interests to be balanced whenever a person is punished for a crime of non-physical violence. A judge should, for the purposes of imposing an effective punishment that will rehabilitate the offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence.

I have decided to regard the present case as a ‘non-violent’ case as, though the victim was justifiably distressed, the offender stopped short of any aggravated physical violence. In categorising the case in that way I am giving the benefit of the doubt to the offender.

Given that the case is categorised as ‘non-violent’ I have to take account of the trend, exemplified by cases such as Liprin, against sending offenders to gaol for such offences. A prison sentence costs the State money and exposes the offender to what can be not a conducive environment for rehabilitation. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens when, for example, an offender is forced to do community work as part of his or her punishment.

Kandakasi J stated in The State v Eric Vele (2002) N2252, National Court:

It might be argued that such an approach to criminal sentencing might let offenders off the hook or that they might be made to avoid the full weight of their wrongs by reason of it being shared. The argument might be extended to say that ... offenders might force their family or communities to bear the penalty and they themselves avoid it. The simple response to that is, prior to Independence and even before that, the coming of the white man our people lived and continue to live in their respective societies without prisons and a police force to maintain law and order. Collective community or family responsibility prevailed. The situation is still the same throughout the country today. Even at the international scene, though not strictly in relation to the subject under discussion, countries are desperately trying to form into bigger unions or communities because of the strength or the force collective responsibility brings as opposed to working alone. The chances of success at the community level are far greater than going through the prison system, because it becomes personalised as opposed to an imposed system and people just doing a job under the current criminal law justice system.

Only an effective sentence can bring about a real achievement of the aims or purposes of criminal sentencing. It is now well accepted that an offender may be better reformed through community participation. As I already stated, my previous community-based sentence orders are doing well and were having a positive impact on the offenders. When placed with such information, it is far better to get the community involved than not, if to do so will keep reform offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather than become a strain in the public purse. The onus is on a sentencing judge to devise a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender to be treated fairly and to be given a chance to reform and become a better law-abiding citizen.

Discretion

I will therefore suspend the sentence in this case in light of the recent trend towards imposition of non-custodial sentences in non-violent crime cases. I have considered whether I should suspend all but a part of the sentence so that the offender should spend some time in prison. But I have ultimately elected not to exercise that discretion. There is at the moment no proper correctional facility on Bougainville. Convicted offenders and remandees are being detained at the Buka Police Lock-up. I inspected it last week and it is extremely overcrowded.

The whole of the sentence will therefore be suspended, subject to certain conditions.

STEP 3 - WHAT CONDITIONS SHOULD BE IMPOSED?

The seriousness of the offence requires the imposition of strict conditions, as follows.

1. Immediately after the handing down of this decision, the offender, Pascal Maya Omi, shall meet with and attend upon the Provincial Welfare Officer to negotiate a detailed plan of action for the service of his period of probation, which will be one year. This plan must include at least six hours community work for each week of the probation period, eg providing cleaning services at his local church or aid post. This will be unpaid. The plan of action shall nominate a responsible person to verify that work has been done.
   
2. The Provincial Welfare Officer shall within one month after today file that detailed plan of action with the Clerk of the Court in Buka.
   
3. The Clerk of the Court shall then forward copies of that plan of action to the presiding Judge and to the lawyers involved in this case.
   
4. The presiding Judge shall consider the detailed plan of action then notify the Community Corrections Officer and the lawyers involved in this case whether that plan of action is acceptable. That will be done within 14 days after receiving it. If it is not acceptable to the Court, then the prison sentence will crystallise, which means that the offender will have to go to prison.
   
5. There shall be a probation report submitted by the Provincial Welfare Officer to the National Court every three months after today.
   
6. The offender shall not leave Papua New Guinea without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Provincial Welfare Officer.
   
7. The offender shall refrain from consuming alcohol for the period of probation.
   
8. The offender shall keep the peace and be of good behaviour for the period of probation.
   

SENTENCE

The Court makes the following order:

1. Pascal Maya Omi, having been convicted of the crime of attempted rape, is sentenced to one year imprisonment in hard labour, all of which is suspended subject to compliance with eight prescribed conditions.
   
2. For the avoidance of doubt there shall be deducted from the term of imprisonment any period in custody that the offender has already spent in relation to this offence.
   

Sentenced accordingly.
_______________________________________________________________

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