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State v James [2019] PGNC 171; N7898 (17 May 2019)

N7898

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1120 OF 2018

THE STATE

V

BAILA JAMES

Kiunga: Koeget, J
2019: 13^th, 17^th May

CRIMINAL LAW- Indictable Offence – section 347(a) of the Criminal Code Act (as amended) – Sentence on guilty plea – no weapons used in the commission of offence – no injuries sustained by victim – exercise of discretionary powers of Court

Cases Cited:

The State –v- Abraham Smarwai

Counsel:

Mr. D. Mark, for the State
Mr. E. Sasingan, for the Accused

17^th May 2019

1. KOEGET, J: INTRODUCTION: The accused is charged with one count of Rape pursuant to section 347(a) of the Criminal Code Act Chapter 262 (amended).
   

FACT

2. On the night of 2^nd March 2018 at about eight o’clock, the accused met the victim Medrian Tim at Monfort Primary school in Kiunga, Western Province.
   
3. He was under influence of alcohol. The victim said to the accused in pidgin language “mi laikim yu” which angered him so he punched her.
   
4. But later both walked to Peter Torot Centre junction, where the accused asked the victim to have sex. She refused so he punched her down to the ground and pulled her to nearby bushes.
   
5. The victim struggled but the accused held her by the neck and forced her down before he removed her clothes and he too removed his clothes. The accused inserted his penis into the victim’s vagina and had sex with her without consent.
   

ISSUE

6. The accused pleaded guilty to the charge so he was convicted accordingly. The issue for the court to determine is, “what is the appropriate sentence the court should impose upon him?
   

LAW

“Section 347 – Definition of Rape.
A person who has Carnal Knowledge of a woman or girl, not being his wife –

(a) without her consent;

is guilty of a crime of rape.

Penalty: subject to section 19, imprisonment for life.”

PERSONAL PARTICULARS

7. The prisoner is 19 years of age and he is a bachelor. He was a grade 11 student at St. Gabriel Technical School in Kiunga in 2018 when he committed the offence. He has been held in custody since the date of commission of the offence.
   

AGGRAVATING FACTORS

8. This is an alcohol related offence. The prisoner raped his cousin sister. Such offence is prevalent in the country.
   

MITIGATING FACTORS

9. The prisoner is a first time youthful offender. He cooperated well with the police when he admitted commission of the offence to them. In court, he pleaded guilty to the charge and saved valuable time of court.
   
10. No weapons were used in the commission of the offence. He has been held in custody for one year and five months.
    

SENTENCE

11. This offence is alcohol related and the prisoner raped a very close cousin sister of his. He knew her and was aware of their blood relationship. The prisoner and the victim walked along the main road that had no street lights and the path was very dark as there are trees, shrubs and elephant grass, sago palms growing on both sides of the road. They walked in the dark for approximately 200 meters before the offence was committed upon the victim.
    
12. The victim did not suffer permanent disabilities at all. She has fully recovered. The victim ought to blame herself for accompanying a drunkard person in the dark where very few people live in hamlets along the road. She knew in such circumstances, particularly no persons live, assistance cannot be easily sought in cases of dangers. The victim gave no explanation of why she accompanied a drunkard relative along a dark patch of the road.
    
13. The defence has urged the court to impose a similar sentence on the prisoner as that imposed on the offender in the case of The State –v- Abraham Smarwai. The facts and circumstances of that case is different to this case so it is distinguishable. In this regard I do not agree that a similar sentence be imposed on the prisoner in this case.
14. The prisoner is sentenced to be imprisoned for a period of five years in hard labour. Since he has been in custody for one year five months. This period is ordered to be deducted so the balance of three years and seven months are to be served at Ningerum Corrective Institute Services.
    

Accordingly Ordered.
________________________________________________________________
Public Prosecutor: Lawyer for the State.

Public Solicitor: Lawyer for the Accused.