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State v Kivung [2008] PGNC 161; N3519 (16 October 2008)

N3519

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1265 OF 2000

THE STATE

V.

DEKLEY CORNELIUS KIVUNG

Kokopo: Paliau, AJ
2008: 13th & 16th October

CRIMINAL LAW – Sentence –Abduction – Charge of – Guilty Plea – Criminal Code s. 350(1).

Cases cited:
The State v. Michael Amuna Koupa [1987] PNGLR 208
The State v. Kopa Lore and Paul Mase (1989) N797
The State v. Anis Noki [1993] PNGLR 426
The State v. Francis J Tai (1997) N1756
The State v. Paul Wanda (1997) N1609

Counsels:
Mr. Kesno & Mr. J. Wohuinangu, for the State
Mr. K. Manio, for the Accused

16th October, 2008

1. PALIAU, AJ.: The prisoner pleaded guilty to one count of abduction. The victim was Henricka Samario. The prisoner committed the offence on 27th March 2000 at Palnakaur village, in the East New Britain Province, between the hours of 4 pm and 6 pm in the afternoon.
   
2. On that day the victim got on a PMV Bus at Papindo Bus stop in Kokopo to go to Tavui No. 1 village in Rabaul, her village. The prisoner was a crew member of that PMV bus. The prisoner threatened and forced the victim to remain in the bus and the bus returned to Kokopo. The prisoner and the victim were dropped at the Takubar road junction and the prisoner took the victim to his village, Palnakaur. At his village, the prisoner threatened the victim and tried to force her to have sexual intercourse with her but she refused. At around midnight, the neighbours came to her rescue when they heard her cries.
   
3. The issue that I am required to determine is what is the appropriate penalty to be imposed on the accused?
   
4. The accused is charged under Section 350(1)(a)(i) of the Criminal Code Act. That section provides that a person who with intent carnally know a woman, takes her away, or detains her, against her will, out of the custody or protection of her father or mother, or other person having the lawful care or charge of her, and against the will of the father or mother or other person, is guilty of a crime. The penalty for this crime is imprisonment for a term not exceeding seven years.
   
5. The maximum term of imprisonment for this crime is 7 years. Under Section 19 of the Criminal Code Act, I have the discretion to impose a penalty which may be less than the maximum term of 7 years. The maximum term of imprisonment must be reserved for the worst type of abduction. In saying this I must take into consideration the peculiar circumstances of this case and the mitigating and aggravating factors.
   

Antecedent Report

6. The prisoner has no prior convictions.

Allocutus

7. The prisoner said that the victim was his girlfriend and he was wrong in not seeking permission from her father or mother. He asked the Court to have mercy and be lenient. He has 2 children. His parents are still alive but very old. They all depend on him for their well being. He has 2 blocks of cocoa that no one will look after if a custodial sentence is imposed.

Pre-Sentence Report

8. There was no pre-sentence report requested so none was provided to assist the court.

9. I have considered the submission by the Defence Counsel in particular the list of cases that are relevant in determining the appropriate penalty for the offence of abduction and his submission on the mitigating and aggravating factors.

10. The range of sentences in the cases vary from 5 months to 6 years. In nearly all the cases cited the offence of abduction was committed at the same time as other offences. In only one case was abduction committed with no other crimes. In this case a term of imprisonment of 5 months was imposed.

11. In the present case, there were no other offences committed together with the crime of abduction. Although, the accused claim that the victim was his girlfriend, he however forced her against her will and without consent and out of custody and protection of her father or mother.

12. The mitigating factors far outweigh the aggravating factors by 10 factors. In fact there is only one aggravating factor against the prisoner and that relates to absconding bail.

13. After considering the range of sentences in the cases cited, the mitigating factors and what the accused said during allocutus, I consider a non-custodial sentence to be an appropriate penalty.

14. I therefore impose a term of imprisonment of one (1) year. I deduct 5 months, 3 weeks and 3 days pre-sentence period in custody from one (1) year. The resultant length of sentence to be served is 6 months and 4 days is wholly suspended with the following conditions:

1. The prisoner shall enter into his own recognizance and keep peace and be of good behaviour for one (1) year commencing today, 16th October 2008.
   
2. The prisoner shall refrain from seeing, talking or having an affair with the victim as of today’s date, 16th October 2008 and onwards.
   

100. If the prisoner breaches any of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
     

Sentence

15. DEKLEY CORNELIUS KIVUNG, having been convicted of the crime of Abduction, you are sentenced to:

Ordered accordingly.
_____________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused