N5938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 679 OF 2014

THE STATE

V

JOHN AMERESI KAUSIN

Arawa & Buka: Kawi-iu, AJ.
2014: 21, 23, 31 October

CRIMINAL LAW – Sentence – Attempted Rape –Mitigating factors considered – Plea of Guilty – First time offender – No remorse - Aggravating factors considered – No compensation, reconciliation or personal apology – Head sentence of 6 years less time spent in custody – Criminal Code Act Ch. 262, s 348

CRIMINAL LAW – Sentence – Prisoner escaped prior to passing sentence – Sentenced in absentia- Criminal Code Act Ch. 262, s.571, and Constitution s.37 (5)

The following judgment was delivered in anticipation of sentencing the prisoner on the 31 October 2013. However on the 26 October whilst the prisoners and remandees were being transported from Arawa to Buka this prisoner escaped enroute on the pretext to attend to the "call of nature". He was sentence in absentia on the 31 October 2014. Counsels for the State and Defence informed the Court that it is within the law that in the circumstances in which the prisoner had internationally absconded when sentence is about to be passed loses his right to be heard on sentence.

Cases Cited:

Goli Golu –v- The State [1979] PNGLR 653
In The State v Arey Watu [1992] PNGLR 475
R –v- Gorogo-Gari (1958) No.127
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Counsel:

J. Waine, for the State
F. Lugabai & F. Kirriwom, for the Prisoner

JUDGMENT ON SENTENCE

31st October, 2014

1. KAWI-IU, AJ: John Ameresi Kausin, you pleaded guilty to the charge that:-"...On the 5th day of October 2013 at Rateri village, in Aita you attempted to commit rape upon Kaesana Asireas. 

2. This is an offence under Section 348 of the Criminal Code Act (the Code).

FACTS

3. The brief facts which you admitted and upon which I am about to sentence you are as follows:

"On the 5th October 2013 in the afternoon about 4.30 pm Kaesana Asireas was getting ready to prepare the family evening meal in their house. At that time you approached her in a drunken state and offered her some breadfruits. You then told her that you had hidden some more amongst the cocoa blocks and invited her to follow you to collect them. She then followed you. Her daughter followed but some distance behind you and Kaesana. At the location you grabbed Kaesana, tackled her to the ground, ripped off her shirt and laplap. She was left only with her shorts. You then lay on top of her and forcefully tried to take off her shorts so you could sexually penetrate her. However, in the course of the struggle her daughter observing from a distance screamed out and cried and you stood up and walked away. You and Kaesana knew each other. She is married with children. At the time you were in possession of a knife and threatened to cut her with it." 

4. I entered a provisional plea of guilty. I confirmed it only after I had read the committal depositions and having satisfied myself that evidence supported the charge and your plea. This was confirmed by your counsel.

ALLOCUTUS

5. In your address to the Court, you said that this is your first time to stand before the court. You knew that you have done wrong. You apologised to the court, lawyers, and prosecutors. You also told court that you have been in custody for one (1) year now. You plead for mercy. You further asked the court to consider placing you on probation so you could go back home to your community and reform. 

SUBMISSIONS:

Defence

6. Your lawyer submitted that you have been in custody since 5th October 2013. You are 28 years of age, single and a United Church follower. He submits that it is trite law that the maximum sentence is reserved for the worse type offence. He submits that the issue for the court now is - what should be the appropriate penalty. 

7. Aggravating Factors: 

•	Sexual offences on the rise
•	Serious offence
•	Strong intent to commit crime
•	Arm with dangerous weapon
•	Offence committed in view of victim's daughter.

8. Mitigating Factors:

•	Plea of guilty, save time and resource
•	Co-operated with the police
•	First time offender
•	Value of garden food of about K1000.00, considered as mitigating factor.

9. The court was referred to the case R. v Gorogo-Gari (1958) No. 127 where it was said that "on a charge of attempted rape the accused desisted from continuing the attack, but this was only a factor in mitigation of sentence, as the attempt was proved." The last paragraph of the statement of fact in the present case states that "accused then let go her, stood up and walk away". Thus it was submitted by counsel that this clearly demonstrates the prisoner's overt act to desist from continuing his attack on the victim.
 
10. In reinforcing this submission the Court was referred to section 512 (1) of the Criminal Code and submits that the Court consider sentencing you to one-half of the total punishment to which you would be otherwise liable.

11. Although the victim was traumatised, your lawyer submits that she suffered no physical injuries.

12. It is submitted that this case does not warrant a penalty even half of the maximum. 

13. Your lawyer finally submitted that an appropriate sentence should be between 3 – 5 years, less period awaiting trial in custody.

State Submission

14.	State submits that the alleged payment of compensation in kind to the victim cannot be verified as there was no proof of such arrangement in the absence of a PSR.

15.	He acknowledged the mitigating factors referred to by defence counsel.

16. 	However the state submits that this offence was committed on a

•	Married woman
•	Prisoner and victim knew each other
•	Use of bush knife
•	Victim put up a fight
•	Prisoner was drunk
•	Offence prevalent in this part of the country.

17.	He urged the court to do something to suppress or reduce this type of offence for the sake of women folk. 

18.	He submits that this type of offence would be better served by imprisonment.

19.	 He finally submits that an appropriate sentence would be 5 years, less time spent in custody.

THE LAW

20. Section 348 of the Code provides for the offence under consideration. It provides:

"348	 Attempt to commit rape.

(1)	A person who attempts to commit the crime of rape is guilty of a crime. 
Penalty: Imprisonment for a term not exceeding 14 years.

21. Section 4 of the Code defines the word attempts as follows:

ATTEMPTS TO COMMIT OFFENCES

(1) When a person, intending to commit an offence–

(a) begins to put his intention into execution by means adapted to its fulfillment; and

(b) manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment whether–

(a) the offender does all that is necessary on his part for completing the commission of the offence; or

(b) the complete fulfillment of his intention is prevented by circumstances independent of his will; or

(c) he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence.

(5)[Repealed]

22. And section 347 defines the word rape as follows:

347. DEFINITION OF RAPE.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

The combine effect of these two sections sets out the context of the instant charge against the accused.

Your Case

23. In considering what an appropriate sentence your lawyer urged the Court to consider the following factors in your favour. 

•	You are appearing before the court for the first time. That is you are a first time offender.

•	You pleaded guilty to the charge thus saving time and money for the State and you saved the victim from having to re-live her trauma by not giving evidence on trial. 

•	You cooperated with the police as shown in the record of interview.

•	Your lawyer urged the court to take into account compensation in kind made to the victim to the value of K1000.00.

24. Against this factor is the consideration of factors of aggravation.

•	Offence you committed is serious

•	Such offence is prevalent

•	You were armed with dangerous weapon, namely a bush knife 

•	Offence committed in view of victim's small daughter

•	And some degree of force was used

•	Offence committed on a married woman

•	You were drunk at the time

25. So what should be an appropriate sentence for you? 

APPROPRIATE SENTENCE

26. The maximum sentence for attempted rape is imprisonment for a term of 14 years subject to section 19 of the Code. Your lawyer submits that your case is not among the worst of cases. He therefore submits that it is trite law that maximum sentence must be reserved for the worse type of offence. This brings to mind the dictates of the case of The State v Goli Golu [1979] PNGLR 653.

27. Taking into consideration factors that influence the quantum of sentence it is obvious that your aggravating factors out-weigh mitigating factors. Your lawyer after referring to those factors draw the court's attention to other consideration, that is the accused desist from continuing his attack which is a factor in mitigation of sentence, R. v Gorogo-Gari (1958) No. 127. In further support of this submission he referred the court to provision of section 512 (1) of the Code, which says:
 
512. REDUCTION OF PUNISHMENT.

(1) Where a person is convicted of attempting to commit an offence, and it is proved that he desisted of his own motion from the further prosecution of his intention, without its fulfillment being prevented by circumstances independent of his will, he is liable to one-half of the punishment to which he would otherwise be liable.

(2) If the punishment referred to in Subsection (1) is imprisonment for life, the greatest punishment to which he is liable is imprisonment for seven years.

28. He submits that no injury was caused to the victim apart from the possible trauma that may have been caused to her. 

29. He finally submitted that the case does not warrant a sentence beyond the mid range and says that any sentence to be imposed should be between 3 – 5 years less time in custody awaiting trial.

30. State on the other hand after referring to aggravating factors, submits that despite the increasing sentences by this Court, the incidence of attempted rape and other like offences has not decreased. It is submitted that this type of behaviour must be punished by a term of imprisonment to deter you and likeminded person like you.

31. Our women and girls need to be protected. They need and in fact have the right to move around freely in our towns, cities and villages. Your victim had the right to move around, to go to her garden without fear of being attacked by anyone including you. 

32. He submits that an appropriate penalty in your case should be imprisonment of 5 years less time in custody.

33. Before the court could consider an appropriate penalty for the prisoner Mr Lugabai appearing for Mr. Kiriwom informed the court that this prisoner escaped on the 26 October 2014 whilst being transported with others from Arawa to Buka. During the Arawa Circuit the prisoner was convicted and the case was adjourned to Buka for sentence. On the 31 October 2014 the date in which the prisoner was to receive his sentence he did not appear. 

34. He submits the court in such circumstances may sentence the prisoner in his absence and referred to s.571 of the Criminal Code: 

571. PRESENCE OF ACCUSED.

(1) Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court–

(a) may order him to be removed; and

(b) may direct the trial to proceed in his absence.

(2) The court may, in any case, if it thinks fit, permit a person charged with a misdemeanor to be absent during the whole or any part of the trial on such conditions as it thinks proper.

(3) If the accused person absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court.

35. Mr Waine for the State concurred with defence that the prisoner may be sentenced in his absence.

36. Still not consciously satisfied that s.571 of the Code confers on the courts power to sentence the prisoner, I turn to s. 37 (5) of the Constitution which says:

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

On first glance, there appears to be no clear reference to sentencing of prisoners in absentia when one reads s.571 of Criminal Code and 37 (5) of the Constitution which appears to deal more on conduct of trial.

In considering the present case I turn to consider cases which have dealt with this issue. 

In The State v Arey Watu [1992] PNGLR 475, Doherty J (at 478-479) interpreted s.37 (5) as follows:

"[Section] 37 (5) envisages 2 situations where a trial may proceed in the absence of a defendant.

(1)	where he consents to the proceeding in his absence and;

(2)	where his conduct within the court is such that the Court proceedings become impracticable and, as a result, the Court orders that proceedings continue without him….

37. Moreover, in Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 at 337 Woods J. said:

Can therefore the defendant's absence be deemed to be by consent?

I am satisfied that consent can be implied by actions as well as by expressed consent; however such actions must be capable of unambiguous interpretation. Thus one must look at the circumstances at the time. A mere failure to appear would not necessarily imply consent; it must be something more deliberate than that. A person who walks out of a hearing with no explanation could be deemed to be absconding…" 

The Supreme Court suggested a person who has absconded shows an intention not to appear and may, thereby, imply consent to the hearing proceeding in his absence…. I considered escaping shows a definite decision to be absent voluntary."(my underlining).

38. After referring to the provisions of the Code (s.571), Constitution s. 37 (5) and the cases cited, I am satisfied that in the circumstances in which the prisoner has placed himself in by escaping, elects to be absent, and absents himself through caprice, malice or for the purpose of embarrassing the trial." Thus he had clearly waived his right to have his day in Court.

39. I am therefore satisfied that the prisoner can be sentenced in his absence. 

40. Returning to consider sentence and after considering all submissions of counsels, I agree that this case is not a worse type. Taking into account mitigating factors, I shall impose a head sentence of 5 years. 

41. From this, I deduct a period of One (1) Year and 19 days for period of your detention in pre-trial custody pursuant to Section 3 (2) of the Criminal Justice (Sentencing) Act 1986. 

42. You will now be sentenced to imprisonment for a period of 3 years, 11 days, to be served at Buka Corrective Institution. 

43. None of this will be suspended.

Orders accordingly.

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor:	Lawyers for the accused