State v George [2009] PGNC 266; N4205 (30 April 2009)

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CRIMINAL LAW –Sentence – Attempted Rape- Plea of Guilty- Aggravating factors- applied force to drag victim down– Bush knife used to cut victims hands- held her captive to his will - Pre-Sentence Report - Sentence six years – with some term suspended - Juvenile Act - Question of age discussed

John Aubuku and State [1987] PNGLR 267
State v Tobby Tani (1994) N2063
Daniel Kemi Mebil v The State (2003) SC749
State v. Otto Paulus (2002) N2241
State v. Arnold Wara Wara (2005) Unreported
State v. John Seregral (2007) N3266
State v. Peter Kose Wena [1993] PNGLR 168

1. SAGU AJ: This is a decision on the sentence of the Offender Gibson George a young man who pleaded guilty to one count of attempting to engage in an act of sexual penetration without the girls consent. The Offender was charged under section 348 of the Criminal Code.

2. After the plea was entered on the 22th April 2009, defence requested adjournment for a presentence report from the CBC which was returnable on 29.4.09 before decision on sentence was pronounced. The Pre Sentence Report (PSR) has been filed and I now hand down the decision on sentence.

3. On the 2nd day of January 2009 at about 9.30 am in the morning, the victim, aged 18 years old female and her 8 year old nephew, a boy, were collecting firewood at Elimbari place in Kwarabri village, Yangoru District, East Sepik Province. While the victim was busy cutting firewood in the bush, the Offender appeared suddenly and grabbed her from her back and tried to push her down to the ground but she struggled. When the victim resisted, and shouted for help, the Offender grabbed the victim's hands and chopped her left ring finger with the bush knife and dragged her to the ground. The Offender forcibly stripped off the victim's clothes from her body. Upon seeing this, the young boy left for the village to get help. The victim did not resist as the Offender had already inflicted injury to her left hand and thus held her captive to submit to his desire. The accused stripped off the victim's clothes and then his sports shorts. He pulled her legs apart and laid on top of her and attempted sexual penetration on her, however, he was disturbed by the arrival of the victim's brothers who pulled the offender off her and threw him onto the ground where he got lucky and escaped. He was later arrested by Yangoru Police on the 6th day of January 2009. The victim was taken to the Yangoru Health Centre the next day ie. 3rd January 2009 where she was treated. The medical report confirms no hymen tissue was broken and the victim suffered a dug out wound on left ring finger which received one stitch.

4. The Offender pleaded guilty and I entered a provisional guilty plea until I had read the court depositions. The Record of Interview (ROI) revealed that the Offender had totally denied the commission of the offence. The court raised this with the Defence Counsel and enquired of him whether his instructions were accurate. The Defence Counsel responded saying that he had his instructions from the Offender and that they had waived the contents of the Record of Interview. He also advised the Court that the Offender's guilty plea was in accordance with instruction and that he had no application to make. I was satisfied and entered conviction against the offender.

5. On his allocutus the offender said he understood the offence he had committed. He is sorry for what he has done; it is the first time for him to be in any court for any trouble. He asked for mercy and asked if this Court could place him on probation.

6. Mr. Mawasi referred me to a number of mitigating factors. The Offender has pleaded guilty saving the state time and expense of trial. He is a first offender, a youth of 17 years and his remorse on allocutus to be taken into account.

7. The offender's time in custody for a period of three (3) months 3 weeks and 5 days be deducted. Defence also submits that compensation order be made as per the victims request contained in the pre sentence report. The offender's father is in court and he is prepared to raise a sum of K500.00.

8. The defence submits that part of the sentence be served in Wewak boys town until he reaches the age of 18 years.

9. State does not object to this court ordering compensation payment for the victim as was ordered as in State v. Peter Kose Wena [1993] PNGLR 168. He submits sexual offence cases are serious and the tariff is about 10 years for rape. However, a range between 5 to 7 years would be appropriate but it depends on the circumstances of each case.

10. The maximum penalty provided for this offence is a term of imprisonment not exceeding 14 years. However the court has a discretion under section 19 of the Criminal Code Act to impose fines or suspended sentence on terms.

11. The courts have treated the crime of attempt rape as a very serious offence for which a strong deterrent and punitive sentence is warranted (as per Injia J as he then was) in the case of The State v Tobby Tani (1994) N2063 when he said:

"The offence of attempted rape under s348 of the Criminal Code is a serious offence for which the maximum punishment is 14 years imprisonment. I should also point out that the offences of attempted rape or actual rape are serious offences for which a strong deterrent and punitive sentence is warranted. Whilst the maximum penalty for attempted rape is 14 years imprisonment, the maximum penalty for rape is life imprisonment. In John Aubuku v The State [1987] PNGLR 267, the Supreme Court said rape is a serious offence which attracts an immediate custodial sentence except in very exceptional circumstances. The Court said that for rape committed by an adult person without any aggravating or mitigating factors, a starting point is five years.

From this an analogy may be drawn in cases of attempted rape with aggravating features in that a strong punitive custodial sentence of imprisonment for a term of years between 1 year 5 years is appropriate."

12. His Honor than went further and considered that a starting point of years between 1 to 5 years is an appropriate sentence for attempt rape with aggravating features. It appears that the courts are progressively acknowledging the prevalence of these type of crimes and are not hesitating in adopting a more deterrent approach in imposing longer custodial sentences.

13. In 2002 the court in State v Otto Paulus (2002) N2241(Kandakasi J) imposed a sentence of 9 years for the attempt rape of a married woman, a case in which the offender attempted to rape a married woman in breach of a de facto trust after tricking her into assisting her to locate her husband. As they were walking along a small bush track, the offender grabbed hold of the victim and forcefully laid her down on the Kunai grass and attempted rape on her without success because she struggled with him. He was frustrated and got his pocket knife and stabbed the victim on the back of her head

14. In 2004 the Supreme Court in Daniel Kemi Mebil v The State (2004) SC749 consisting of Injia DCJ as he was then, Kirriwom & Gavara-Nanu JJ reaffirm John Aubuku –and- The State [1987] PNGLR 267 in establishing sentence tariff for rape as follows:-\

*Category*	*Starting point of*
For rape without aggravating features,	five (5) years imprisonment is suggested
For a rape with aggravating features such as abduction of the victim and holding her captive	eight (8) years is suggested
with additional aggravating features such as the use of a weapon to frighten or wound the victim,	a higher sentence is suggested.

15. The Supreme Court went further and said that using the above tariff as a guide, sentences for attempted rape, with or without aggravating features, will be lower than those suggested for rape.

16. In 2005 Mogish J. in State v. Arnold Warawara (unreported) also imposed a sentence of 7 years for attempt rape

17. In 2007 the Court in State v. John Seregat (2007) N3266 per Lenalia J. imposed a sentence of 7 years of which 3 years were suspended. In that case a 62 year old father pleaded guilty to attempted rape of his 10 year- old daughter with mild violence. It was a case of breach of trust. The offender was diagnose with T.B

18. Before I decide on the appropriate sentence I need to settle the offender's age. Mr. Mawasi of Counsel for the offender submitted that this court treat the offender as a juvenile as he is 17 years of age and went no further. A Juvenile is defined as a person aged seven years and above to just under 18 years as provided by section 2 of the Juvenile Act 1991. There is no evidence, such as a birth certificate, or mission records nor any oral evidence before me to support the age of the offender. In the absence of that I am left to decide from my observation of the offender in court as to his age. He has shaved his beard and his physical development appears to tell me that he is around 18 years. The age on the police information charge shows he is 18 years old. I form the opinion that he is 18 years. As the Juvenile Act defines a juvenile to be one over seven years and less than 18 years I hold that this Act does not apply to him.

19. The present case falls within the 3rd category and the starting point I will use for this present case is 6 years. In considering the appropriate sentence I take into account that the offender has pleaded guilty which has saved the state cost and trial time. He is a first time offender who showed an expression of remorse when he said he was sorry. I take into account that you are a young offender. I note that the offender's father was in court and wanted to pay compensation on his son's behalf although he is a villager and unemployed.

20. However, the offence of attempt rape is a very serious offence. This is a bad case of attempt rape because he has used violence, he attacked her (the victim) from the back and dragged her and when she struggled and shouted for help he twisted her and inflicted injury to her left ring finger with a bush knife.

21. He dragged her to the ground and stripped her clothes off and held her captive to his will. He laid on top of her and attempted sexual penetration and would have completed his mission had he not been disturbed. He terrorised and subjected the girl against her will and invaded into her privacy.

22. After considering all the factors for and against the offender the aggravating factors slightly outweigh the mitigating factors. I choose to impose a sentence that will deter other young persons in the community from committing similar offences in the future. I fix a term of six (6) years imprisonment.

23. I also decide to suspend some of the terms in the exercise of my discretion under section 19 of the Criminal Code as the offender is a young man and that he has pleaded guilty which is indicative of the offender's remorse.

24. The Court has the benefit of the Pre-Sentence Reports (PSR) filed by the Community Base Correction & Rehabilitation Services through Probation Officer and I am grateful for her contribution. The pre sentence report recommends for a suspended sentence with conditions of work order under supervision by the Probation Officer.

_______________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence

National Court of Papua New Guinea

State v George [2009] PGNC 266; N4205 (30 April 2009)