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State v Damusuk [2016] PGNC 437; N6799 (15 July 2016)

N6799

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs. 1077-1096 OF 2013

BETWEEN

THE STATE

AND
TIMOTHY DAMUSUK
First accused

AND
KULEM KISOU
Second accused

AND
KABIANG LOD
Third accused

AND
KADAMAN NANUI
Fourth accused

AND
MULUK PANALUAN
Firth accused

AND
LUWI SIAM
Sixth accused

Madang: Cannings J
2016:22 March, 24 June, 15 July

CRIMINAL LAW – sentencing – general principles: multiple offenders; multiple offences – comparison of degrees of involvement – whether sentences should be served cumulatively or concurrently – totality principle – relevance of some offenders escaping custody during trial.

CRIMINAL LAW – sentences: particular offences: rape (Criminal Code, Section 347(1), (2)) – unlawful deprivation of liberty (Section 355(a)) – armed robbery (Criminal Code, Section 386).

Six offenders were convicted after trial of one count of rape, one count of unlawful deprivation of liberty and three counts of armed robbery. They held up and robbed three scientists, a woman and two men, who were conducting research in a bush location in a remote area in which the offenders lived. In the course of the incident the six offenders each committed the crime of unlawful deprivation of liberty and rape against the female victim. Each offender was adjudged to have had an equal degree of involvement in the crimes. The offenders’ ages, background and personal circumstances were generally similar. The major distinguishing feature of the offenders’ circumstances was that four of them escaped from custody during the course of the trial, while one escaped during the course of the sentencing hearing. Only one of the offenders remained in custody on the date of sentence. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences the court should arrive at a notional sentence for each offence and then: determine whether the sentences should be served cumulatively or concurrently, apply the totality principle and arrive at a total head sentence, decide whether any pre-sentence period in custody should be deducted and decide whether to suspend any part of the total sentence and then make a final determination of the time to be served in custody.

(2) After going through that process in respect of each offender, the court passed the following sentences:

Cases cited:

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Emil Kongian v The State (2007) SC928
Goli Golu v The State [1979] PNGLR 653
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v Kerua [1985] PNGLR 85
Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Tau Jim Anis v The State (2000) SC642
The State v Philip Kila (No 2) (2009) N3930
The State v Timothy Damusuk &5 Others (2016) N6229

SENTENCES

This was a judgment on sentence for six offenders convicted of one count of rape, one count of unlawful deprivation of liberty and three counts of armed robbery.

Counsel:

F K Popeu, for the State
A Meten, for the offenders

15^th July, 2016

1. CANNINGS J: Six offenders are being sentenced for their involvement in an incident on Karkar Island, Sumkar District, Madang Province on the morning of Friday 19 April 2013 in which three scientists who were conducting research, a woman and two men, were held up with weapons, threatened with violence and robbed and the woman was unlawfully deprived of her liberty and raped. After a joint trial the offenders were each convicted of five offences:
   
   • one count of rape, in circumstances of aggravation, contrary to Sections 347(1) and (2) of the Criminal Code;
     
   • one count of unlawful deprivation of liberty, contrary to Section 355(a) of the Criminal Code;
     
   • three counts of armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code.
     
2. Details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Timothy Damusuk &5 Others (2016) N6229).
   
3. Though jointly tried and convicted and subject to a joint sentencing hearing, each offender must be individually sentenced in a way that takes account of his level of involvement in the crimes and his individual circumstances. At the outset I state that:
   
   • each offender is adjudged to have had an equal degree of involvement in the crimes;
     
     • each offender’s age, background and personal circumstances are generally similar (each of them is aged in his early to mid-20s, with limited education and a villager);
       
   • each offender has no prior convictions.
     
4. The major distinguishing feature of the offenders’ circumstances is that four of them escaped from custody during the course of the trial, in July 2015, while two did not escape at that time. Of the two that remained in custody, one escaped yesterday, as the court was about to hand down the sentence.
   
5. Those who escaped from custody in July 2015 are Timothy Damusuk, Kadaman Nanui, Muluk Panaluan and Luwi Siam. I ruled shortly after their escape that they had given up their right under Section 37(5) of the Constitution to be present at their trial, and would be tried in their absence. They were subsequently convicted in their absence. I have taken the same approach to their sentencing hearing, during the period of which they were still at large. They have given up their right to be present. They have given up their right to make statements in allocutus. They will be sentenced in their absence. Warrants for their arrest have been issued. When they are arrested they will be brought before the Court to show cause why they should not be immediately imprisoned to serve their sentences.
   
6. As for the offender who escaped yesterday – Kulem Kisou – I have made an adjustment to his sentence to take account of that recent development.
   
7. The one who has not escaped, who has remained in custody for a continuous period of more than three years since his arrest, is Kabiang Lod.
   
8. The following process will be followed in relation to each of the six offenders:
   
   • Step 1 – allocutus – summarises what the offender has said in allocutus, ie the part of the sentencing hearing where the convicted person is, before the court passes sentence, accorded the right to address the court.
     
   • Step 2 – pre-sentence report – summarises the pre-sentence report. Each offender requested the court to arrange a report by the Community Based Corrections Service. The report describes the offender’s background (family, education, employment etc) and personal circumstances and assists the court in making a decision on what the total head sentence should be and whether any part of it should be suspended.
     
   • Step 3 – notional sentences – is where the court allocates a notional head sentence to each offence. As each offender has been convicted of multiple offences it is necessary to first fix a sentence for each offence, which takes account of the maximum penalty available for that offence, the relevant starting point and mitigating and aggravating factors. These notional sentences are then added together to arrive at a total potential sentence.
     
   • Step 4 – concurrent or cumulative – is where the court exercises its discretion whether the sentence for each offence should be served concurrently or cumulatively with other sentences. If any sentences are to be served concurrently an adjustment will be made to the total potential sentence.
     
   • Step 5 – total head sentence – involves application of the totality principle. The court looks at the total potential sentence and assesses whether it is fair and just having regard to the totality of criminality involved. If it appears that it would be a crushing sentence the total head sentence can be reduced.
     
   • Step 6 – pre-sentence period in custody – is where the court records whether the offender has already spent any time in custody (in remand) in connection with the offences and, if so, whether all or part of that time should be deducted from the total head sentence.
     
   • Step 7 – suspension – determines whether the court should suspend all or part of the total head sentence and, if it is suspended, what the conditions should be.
     
   • Step 8 – sentence order – describes the final order of the Court, as follows:
     

9. The table gives the following information in accordance with the Criminal Justice (Sentences) Act:
   
   • The first two columns give the number and name of the offender according to the order in which he appeared on the indictment.
     
   • The next column is the total head sentence, ie the sentence fixed after application of the totality principle.
     
   • The next column is the pre-sentence period, if any, to be deducted.
     
   • The next column – “resultant length of sentence to be served” – is a simple calculation: the pre-sentence period in custody is deducted from the total head sentence.
     
   • The next column – “amount of sentence suspended” – is the portion, if any, of the period shown in the previous column that the court decides will be suspended (ie served outside custody).
     
   • The final column is another piece of arithmetic: the “amount of sentence suspended” is deducted from the “resultant length of sentence to be served” to arrive at “time to be served in custody”.
     

10. 1^ST OFFENDER: TIMOTHY DAMUSUK
1 Allocutus

There was no allocutus as the offender escaped from custody.

2 Pre-sentence report

There was no pre-sentence report as the offender escaped from custody.

3 Notional sentences

One count of rape

11. Under the Criminal Code, Sections 386(1), (2), (a) and (b), the maximum penalty is life imprisonment. However, I have the discretion to impose less than the maximum term under Section 19 of the Criminal Code. In The State v James Yali (2005) N2989 I expressed the view that the starting points when sentencing for rape should be:
    
    • if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and
    • if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.
      
12. I follow that approach in this case and use 15 years imprisonment as a starting point. I now consider aggravating and mitigating factors.
    
13. The aggravating factors are: the victim was threatened with violence; the offender acted in combination with others, it was a pack rape; the victim was absolutely innocent and offered no provocation of any sort; the victim was traumatised and put in fear of her life. The mitigating factor is: the offenders did not inflict serious long-term physical injuries on the victim.
    
14. The aggravating factors far outweigh the mitigating factors. It is therefore appropriate to impose a sentence above the starting point of 15 years. A similar situation existed in The State v Philip Kila (No 2) (2009) N3930, a case in which a police officer was convicted, after a trial, of the rape of a young woman in circumstances of aggravation. He committed the offence at night, while searching the victim’s family’s house in the course of a police raid of a village. He threatened her with the police-issued firearm that he was carrying, then sexually penetrated her without consent. The sentence was 17 years imprisonment. I regard the aggravating features of the present case as more weighty than those in Kila. I fix the sentence at 20 years imprisonment.
    

One count of unlawful deprivation of liberty

15. The maximum penalty is three years imprisonment. I am unable to identify any mitigating factor and impose the maximum term of three years imprisonment.
    

Three counts of armed robbery

16. The maximum penalty for each of these offences, committed on 19 April 2013, is life imprisonment. Under the Criminal Code (Amendment) Act No 6 of 2013, the maximum is now the death penalty. However the amendment to Section 386 of the Criminal Code, which creates the offence of armed robbery and fixes the maximum penalty, did not take effect (by virtue of Section 110(1) of the Constitution) until the date of certification of the Amendment Act, 18 September 2013.
    
17. The Supreme Court sentencing guidelines given in the leading cases Public Prosecutor v Don Hale (1998) SC564; Tau Jim Anis v The State (2000) SC642 and Phillip Kassman v The State (2004) SC759 must be applied in this case. The starting points are: robbery of a house: ten years; robbery of a bank: nine years; robbery of a store, hotel, club, vehicle on the road etc: eight years; robbery of a person on the street: six years. The present case involved robbery on a bush track, which is tantamount to robbery of a person on a street. The starting point for each of the three offences is six years.
    
18. The aggravating factors are: each victim was threatened with violence; guns and knives were used; the offender acted in combination with others, each victim was humiliated by being forced to strip naked while he or she was robbed. The mitigating factor is: the offender did not inflict serious long-term physical injuries on the victims. The appropriate sentence is ten years imprisonment for each offence.
    

Total potential sentence

19. It is: 1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.
    

4 Concurrent or cumulative

20. The general rule is that if two or more offences are committed in the course of a single transaction or incident the sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there were two distinct series of transactions and incidents:
    
    • First, the rape and unlawful deprivation of liberty of the female victim. These were offences committed against one victim only in the course of an incident that can be separated from the armed robberies.
      
    • Secondly the armed robbery of three different victims.
      
21. The sentences for rape (20 years) and unlawful deprivation of liberty (3 years) can properly be regarded as concurrent as the offences were part of a separate event. As for the sentences for armed robbery (3 x 10 years), although there were three different victims, the offences were committed in the course of the same incident, so the sentences can be regarded as concurrent. The total potential sentence, subject to the totality principle, is therefore:
    

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

22. The totality principle requires the court, after determining whether and to what extent the individual sentences are to be served concurrently or cumulatively and before fixing a total head sentence, to examine the total potential sentence that the offender is facing to see if it is just and appropriate having regard to the totality of criminal behaviour involved. The court needs to guard against imposing crushing sentences: those that are over the top or manifestly excessive (Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205).
    
23. Given the age of the offender, it is appropriate to reduce the total sentence to 25 years imprisonment, apportioned as follows:
    
    • 1 count of rape and 1 count of unlawful deprivation of liberty = 16 years;
      
    • 3 counts of armed robbery = 9 years.
      

6 Pre-sentence period in custody

24. The offender spent two years, two months in remand before he escaped. I now have to consider whether that period should be deducted from the head sentence. Normally the Court would make that deduction but it is not automatic. It is done at the discretion of the court under Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986, which are in the following terms.
    

3. (1) A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(2) There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

4. At the time of imposing a sentence in any court in the National Judicial System, the judicial officer imposing the sentence shall specify—

(a) the length of the sentence imposed; and

(b) the length of any period to be deducted from the sentence under Section 3(2); and

(c) the resultant length of the sentence to be served.

25. It would not be fair or appropriate to allow the offender the benefit of the full period he spent in custody prior to his escape. Nor would it be fair to completely disregard it. I will strike a compromise and allow a deduction of one year.
    

7 Suspension

26. There is nothing before the Court to warrant suspension of any part of the sentence.
    

8 Sentence order

11. 2^ND OFFENDER: KULEM KISOU
1 Allocutus

The offender apologised to the Court for what had happened. He asked that the inhuman treatment inflicted on him by the Police during the course of his arrest be taken into account as a mitigating factor. He has spent a long time in custody already without escaping. He is concerned about his future as both his parents are deceased. He asked for the mercy of the court and a non-custodial sentence.

2 Pre-sentence report

A pre-sentence report was prepared by the Community Based Corrections Service. Kulem Kisou is unmarried and has no children. His mother died when he was young and his father died recently, while the offender was in remand. He has a grade 8 education and wishes to continue his education. He has no formal employment record and always lived in his village, Gamog, on Karkar Island. His health is sound. Members of his family are concerned about his welfare. They consider that the offender might have committed the offences out of anger and frustration due to the victims of the crimes not consulting the villagers at Gamog to get permission to go into the area of the volcano where the offences were committed.

3 Notional sentences

The same notional sentences are fixed for each offender. Thus:

1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.

4 Concurrent or cumulative

The same approach is taken for each offender. The total potential sentence, subject to the totality principle, is:

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

In applying the totality principle for this offender I take into account that he has, like four of his five co-offenders, escaped from custody. He escaped on 15 July 2016, one year after the other four. If he had not escaped, his sentence would have been much lower. However, he has spoiled his chances of getting a lower sentence. I apply the totality principle in the same way as for Timothy Damusuk. It is appropriate to reduce the total potential sentence from 30 years, to 25 years imprisonment, apportioned as follows:

• 1 count of rape and 1 count of unlawful deprivation of liberty = 16 years;
  
• 3 counts of armed robbery = 9 years.
  

6 Pre-sentence period in custody

The offender spent three years, two and a half months in remand before he escaped. It would not be fair or appropriate to allow the offender the benefit of the full period he spent in custody prior to his escape. Nor would it be fair to completely disregard it. I will strike a compromise and allow a deduction of two years.

7 Suspension

There is nothing before the Court to warrant suspension of any part of the sentence.

8 Sentence order

12. 3^RD OFFENDER: KABIANG LOD
1 Allocutus

The offender apologised to the Court for what had happened. His mother has passed away and this has made it difficult for his wife and three young children (two of whom are attending school), whose welfare and upbringing he is very concerned about. He is also concerned about his cash crops. He asked for the mercy of the court and a non-custodial sentence.

2 Pre-sentence report

A pre-sentence report was prepared by the Community Based Corrections Service. Kabiang Lod is married and has three children. He is strongly supported by his family. He has had no formal education. He has no formal employment record and always lived in his village, Gamog, on Karkar Island. He is a subsistence farmer. His health is sound. Members of his family are concerned about his welfare. They consider that the offender might have committed the offences out of anger and frustration due to the victims of the crimes not consulting the villagers at Gamog to get permission to go into the area of the volcano where the offences were committed.

3 Notional sentences

The same notional sentences are fixed for each offender. Thus:

1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.

4 Concurrent or cumulative

The same approach is taken for each offender. The total potential sentence, subject to the totality principle, is:

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

In applying the totality principle for this offender I take into account that he has, unlike his co-offenders, not escaped from custody. This is an indication of his respect for the justice system and the authority of the Court. It is therefore appropriate to reduce the total sentence to 15 years imprisonment, apportioned as follows:

• 1 count of rape and 1 count of unlawful deprivation of liberty = 10 years;
  
• 3 counts of armed robbery = 5 years.
  

6 Pre-sentence period in custody

The offender has spent three years, two months, two weeks in remand. As he has not escaped and the Court has not been informed of any bad behaviour while he has been in custody, all of the pre-sentence period in custody will be deducted from the head sentence.

7 Suspension

There is nothing before the Court to warrant suspension of any part of the sentence.

8 Sentence order

13. 4^TH OFFENDER: KADAMAN NANUI
1 Allocutus

There was no allocutus as the offender escaped from custody.

2 Pre-sentence report

There was no pre-sentence report as the offender escaped from custody.

3 Notional sentences

The same notional sentences are fixed for each offender. Thus:

1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.

4 Concurrent or cumulative

The same approach is taken for each offender. The total potential sentence, subject to the totality principle, is:

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

In applying the totality principle for this offender I take into account that he, like four of his co-offenders, escaped from custody. This is an indication of his disrespect for the justice system and the authority of the Court. I apply the totality principle in the same way as for Timothy Damusuk. It is appropriate to reduce the total potential sentence from 30 years, to 25 years imprisonment, apportioned as follows:

• 1 count of rape and 1 count of unlawful deprivation of liberty = 16 years;
  
• 3 counts of armed robbery = 9 years.
  

6 Pre-sentence period in custody

I take the same approach as in the case of Timothy Damusuk. There will be a deduction of one year.

7 Suspension

There is nothing before the Court to warrant suspension of any part of the sentence.

8 Sentence order

14. 5^TH OFFENDER: MULUK PANALUAN
1 Allocutus

There was no allocutus as the offender escaped from custody.

2 Pre-sentence report

There was no pre-sentence report as the offender escaped from custody.

3 Notional sentences

The same notional sentences are fixed for each offender. Thus:

1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.

4 Concurrent or cumulative

The same approach is taken for each offender. The total potential sentence, subject to the totality principle, is:

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

In applying the totality principle for this offender I take into account that he, like four of his co-offenders, escaped from custody. This is an indication of his disrespect for the justice system and the authority of the Court. I apply the totality principle in the same way as for Timothy Damusuk. It is appropriate to reduce the total potential sentence from 30 years, to 25 years imprisonment, apportioned as follows:

• 1 count of rape and 1 count of unlawful deprivation of liberty = 16 years;
  
• 3 counts of armed robbery = 9 years.
  

6 Pre-sentence period in custody

I take the same approach as in the case of Timothy Damusuk. There will be a deduction of one year.

7 Suspension

There is nothing before the Court to warrant suspension of any part of the sentence.

8 Sentence order

15. 6^TH OFFENDER: LUWI SIAM
1 Allocutus

There was no allocutus as the offender escaped from custody.

2 Pre-sentence report

There was no pre-sentence report as the offender escaped from custody.
3 Notional sentences

The same notional sentences are fixed for each offender. Thus:

1 x rape (20 years) + 1 x unlawful deprivation of liberty (3 years) + 3 x armed robbery (30 years) = 53 years imprisonment.

4 Concurrent or cumulative

The same approach is taken for each offender. The total potential sentence, subject to the totality principle, is:

20 years (rape and unlawful deprivation of liberty) + 10 years (three counts of armed robbery) = 30 years imprisonment.

5 Total head sentence

In applying the totality principle for this offender I take into account that he, like four of his co-offenders, escaped from custody. This is an indication of his disrespect for the justice system and the authority of the Court. I apply the totality principle in the same way as for Timothy Damusuk. It is appropriate to reduce the total potential sentence from 30 years, to 25 years imprisonment, apportioned as follows:

• 1 count of rape and 1 count of unlawful deprivation of liberty = 16 years;
  
• 3 counts of armed robbery = 9 years.
  

6 Pre-sentence period in custody

I take the same approach as in the case of Timothy Damusuk. There will be a deduction of one year.

7 Suspension

There is nothing before the Court to warrant suspension of any part of the sentence.

8 Sentence order

16. SENTENCES

The following sentences are imposed:

Sentenced accordingly.
_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor: Lawyer for the Offenders