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State v Nema [2019] PGNC 454; N8233 (16 December 2019)

N8233

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 167 of 2018

THE STATE

v

DICK NEMA

Lae: Kaumi. J
2019: 12^th June 3^rd, 6^th, 24^th July &16^th December

CRIMINAL LAW – Criminal Code Act 1974, Section 347 (1) Rape-There was a relationship of trust, authority and dependency between the offender and victim in that the victim was his own wife and he took advantage of that relationship-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial Custody period considered-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.

The offender pleaded guilty of one count of rape. Matter for sentence.

HELD:

[1] Both mitigation and aggravating factors may be mild or strong and weighed accordingly: The State v Raka Benson (2006) CR 447 and 445Cannings. J

Legislation Cited:

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Cases Cited:

Abuku v The State [1987] PNGLR
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Saperus Yalibakut v The State [2008] SC 890
The State v Benson [2006] PGNC 68 CR 447, 445
Ure Hane v The State [1984] PNGLR 105

Counsel:

Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku, for the Offender

SENTENCE

16. December, 2019
    
1. KAUMI J: INTRODUCTION: This is a decision on sentence for a man who pleaded guilty of two counts of rape contrary to Section 347 (1) of the Criminal Code Act Chapter 262.
   

ISSUE

2. The relevant issue is what the appropriate sentence in this case.
   

AGREED BRIEF FACTS

3. The accused, is the second husband of the complainant, Harriet Muga.
   
4. Between 12am and 1am on 28 September 2018, the accused went home drunk, woke up the complainant and accused her of having an affair with her first husband. This developed into an argument between them. During the argument the accused threatened the complainant with a 6 inch nail and ordered her to remove her trousers. When she refused, the accused forcefully removed her trousers. The complainant cried out and their son, who was then 3 years old woke up. The accused swore at their child and so he just sat there and watched the complainant and the accused. The accused then ordered the complainant to bend down and so the complainant did as she was told. The accused then sexually forcefully penetrated the complainant by inserting his penis into her anus. He removed his penis and tried to insert it a second time when the complainant felt pain, cried and forced the accused off her.
   
5. The State alleged that in inserting his penis into the complainant’s anus without her consent, the accused had raped the complainant and thereby contravened section 347(1) of the Criminal Code Act.
   

ANTECEDENT

6. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

7. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:
   

“I am sorry for breaching the law of this country. Before this court I say sorry for breaching the constitution of this country. I say sorry for taking up the time of the court in dealing with my case. I say sorry for causing the offence against the company, management, and owner of the company. I say sorry for my family and my block and have been in custody and there have been escapes but I have remained in custody and not escaped though there has been overcrowding and sickness spreading in there. I have been patient and continued to stay in custody because I respect the law and want my case in court. I am sorry for what I did, this is my first time and I will not do it again in future. This I promise I will not do. I ask for the mercy of the court for Probation or a Good Behaviour Bond. Thank you Your Honour”.

OTHER MATTERS OF FACT

8. The offender pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus and in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890.
   

SUBMISSION BY DEFENCE COUNSEL

9. Mr. Boku for the offender referred the Court to the case of Aubuku v The State [1987] PNGLR for its sentencing guidelines and submitted that in the instant case there was no injury occasioned on the victim. The offence was not preplanned and repeated that there was no need to expose herself to danger but she invited her own peril by inviting her relatives from Ramu to bring news and stories from her former husband and that this provoked the offender in the non-legal sentence.
   
10. He submitted for a 5 years sentence as a starting and for the court to use its unfettered discretion in sentencing.
    

SUBMISSION BY THE STATE

11. Ms. Maru for the State urged the Court to consider the aggravating factors:
    • (a) That there was a relationship of trust, authority and dependency between the offender and victim in that the victim was his own wife and he took advantage of that relationship.
    • (b) There was and dement of threats of violence when the offender used a 6 inch nail to threaten her.
    • (c) The victim was subject to sexual indignities and perversion when the offender penetrated her anus.
    • (d) She was subject to shame and humiliation in front of their three year old son who witnessed the entire act.
    • (e) The rape would have been persistent if she had not pushed him off.
12. She submitted that besides being a first time offender and not harming the victim, he express some remorse but mainly to the Court and lawyers but not to the victim.
    
13. On submitting on the guidelines the Court should adopt she referred it to the case of John Aubuku v. The State (supra) and that with the introduction of section 347 (2) of the CCA, the legislature had added more clarity to the circumstances of aggravation that had been highlighted in this case.
    
14. She submitted that the aggravating factors far outweighed those in his favour. That the presence of the aggravating factors in the instant case called for a stiffer sentence over and above 8 years and submitted a 10 years sentence as an appropriate starting point with appropriate deductions to be made in light of the mitigating factors.
    

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.
    
16. Section 347 Criminal Code states:
    

“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”.

STEP 2: WHAT IS THE STARTING POINT?

17. The proper starting point in this case is 10 years.
    

STEP 3: WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

18. I will now consider the sentencing trends in recent history.
    

NATIONAL COURT SENTENCES FOR RAPE

19. I note from the cases above that the starting point is 10 years and generally the head sentence is 8 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter. I note where the circumstances dictated and also upon conviction after trial the head sentence increased over the starting point.
    

WHAT IS THE HEAD SENTENCE?

20. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
    
21. There are a number of mitigating factors in this matter. His early guilty plea saving the Court’s time and resources, his expression of remorse for his actions, prisoner not a threat to the community, and provocation in the non-legal sense.
    
22. The aggravating factors against the prisoner are matters the court also must take into consideration and I mention them: The relationship of trust, authority and dependency between prisoner and the victim in that the victim was his own wife and he took advantage of that relationship, there is an element of threats of violence when the prisoner used the 6 inch nail to threaten her, the victim was subjected to indignities and perversion when the prisoner penetrated her anus, she was subjected to shame and humiliation in front of their three year old son who witnessed the entire act, the rape would have been persistent if she had not pushed him off and it is a prevalent offence.
    
23. Both mitigation and aggravating factors may be mild or strong and weighed accordingly: The State v Raka Benson (2006) CR 447 and 445.
    
24. I consider the aggravating factors outweigh those in his favour.
    
25. Considering the circumstances of this matter and the sentencing trend for equivalent offences the head sentence should not be above the starting point of 10 years therefore it will be 8 years for both charges.
    

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

26. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed 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.

27. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
    
28. I note the offender was arrested on 26 October 2018 and been in custody since and so that would make it 1 year 1 month 3 weeks and it is proper that this period be deducted.
    

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

29. The PSR does not contain the views of the victim’s family nor from the leaders of the offender’s community in the event he was to be a beneficiary of a suspended term for purposes of supervision so as a result the PSR does not recommend any suspension of any kind.
    
30. In this matter the notions of sentencing of deterrence and rehabilitation are relevant in my view.
    
31. I note that there was breach of trust involved in the commission of this offence in that the victim was the wife of the offender.
    
32. No part of the sentence is suspended.
    

SENTENCE

33. The orders of the Court are as follows:

a) The offender Dick Nema is sentenced to 8 years imprisonment each for both offences and which are to be served concurrently.

b) 1 year 2 months is deducted.

c) The offender Dick Nema will serve 6 years 10 months.

d) Orders to this effect shall issue forthwith.

e) Sentence accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender