The State v Dibol Petrus Kopal (2004) N2778

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 21 October 2004
• Citation: (2004) N2778
• Court: National Court
• Year: 2004
• Judgement Number: N2778

Full Title: The State v Dibol Petrus Kopal (2004) N2778

National Court: Lay J

Judgment Delivered: 21 October 2004

N2778

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR884/2000

THE STATE

AND

DIBOL PETRUS KOPAL

DECISION ON SENTENCE

LAY J.

Kundiawa

2004: 11th and 21st October 2004

Counsel:

Mr Kasen for the state

Mr Apie’e for the defendant

Criminal Law – Criminal Code – amendment – s11 – s528 – circumstances of aggravation, necessity to charge in indictment – s347 – s349A – s386 - rape and robbery – sentence – robbery of a person on the street - Interpretation Act s.63 – s386 – robbery – circumstance of aggravation – rape – s347 – whether charge under s347 as amended or pre-amendment s347 – effect of Criminal Code (Sexual Offences and Crimes Against Children) Act – circumstances of aggravation not charged – whether circumstance of aggravation to be taken into account on sentence.

__________________________________________

Cases Cited:

The State v Tom Gaia 9186) N544

Baza Tiadu Avona v State [1986] PNGLR 148

Taiba Maima v Ben Hambaken Sma [1971-72] PNGLR 49

The State v Miseal Butemo Jiregari [1984] PNGLR 62

Lawrence Hindemba v State (1998) SC593

Gimble v State [1998] PNGLR 271

Public Prosecutor v Don Hale (1998) Sc564

Tau Jim Anis v The State (2000) SC642

The State v Sul Kora N2092

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Paul Mase & Kope Lore John v The State [1991] PNGLR 88

Facts – the Defendant was found guilty of robbery, with arms and threats of violence in company of 7 other men, of three people walking on a bush track, and of rape of the female victim. The offences occurred before the commencement of the Criminal Code (Sexual Offences and Crimes against Children) Act and the indictment presented after its commencement. No circumstances of aggravation specified in the new s349A were charged in the indictment in respect of the charge of rape.

Held – The substantive effect of the Criminal Code (Sexual Offences and Crimes against Children)Act is to amend rather than repeal s347 of the Criminal Code. Therefore s.63 of the Interpretation Act had no application and the indictment was presented under s347 as amended and not the former form of s347 preserved by s63 of the Interpretation Act.. Although circumstances of aggravation specified in s349A were proven, they were not charged in the indictment. The maximum sentence was therefore 15 years pursuant to s347(1). The proven facts of circumstances of aggravation could be taken into account in assessing the appropriate sentence within the range for the offence charged but not so as to increase the maximum sentence to life imprisonment pursuant to s347(2). The appropriate sentence for the rape was 14 years and for the robbery of a person on the street with aggravating factors 8 years. Applying the totality principle total sentence was reduced to 16 years.

_____________________________

After a trial the Defendant has been convicted of one count of robbery whilst armed and in company of 7 other people and with threats of violence, and one count of rape, with no circumstances of aggravation charged in the indictment.

The full facts are set in the ruling on the voir dire on the admissibility of the Record of Interview (which was not admitted into evidence) and the decision on verdict delivered on 11th October 2004. For the purposes of sentence it is sufficient to note that the Defendant was in company of 7 other men, he was armed with a gun and the others were armed with bush knives. Before ambushing the victims the accused gained their trust by assuring them there was no one else around. They knew him and were aware that he had been a reserve constable. The Defendant appeared to be the leader of the gang and the one giving directions and organising the others of the gang. He gave orders for the victim and her two male companions to drop their cargo valued at about K470 and he took the victim into the bush, ordered her to lie down and removed her laplap. He threatened the two male companions with his gun so that they ran off & he stood guard while six of the others took turns in raping the victim, then he raped her. Apart from the multiple rape, which is violence enough, there was no other violence to the victim.

The victim was a mature woman in her mid 30’s. The Defendant is aged in his late 30’s, married with 3 children the eldest of whom is 9-10 years. He is a subsistence farmer at Kerowagi. He has had minimal education. He was engaged for 2 years as a Reserve Constable but lost that job due to staff cut backs. He is a first offender.

The Law

Rape

The relevant sections of the Criminal Code on sentence are ss.347, and 349A and I set out those provisions below:

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.

349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant; or

(g) the complainant has a serious physical or mental disability; or

(h) the complainant was pregnant at the time of the offence; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

Section 347 has been amended since the offence was committed and Sections 347A and 349A have been inserted in the Code since that date. The Code makes the following provision for such circumstances:

11. Effect of changes in law.

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

S. 63 of the Interpretation Act preserves an offence committed under a repealed provision in the following terms:

63. Effect of repeal.

(1) The repeal of a provision does not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

s.11 of the Criminal Code and s.63 of the Interpretation Act were discussed by this Court in The State v Tom Gaia

1 (1986) N544 per Kapi DCJ

1 on the question of changes to both the offence and penalty and in relation to a change of penalty only they were discussed in the Supreme court case of Baza Taidu Avona v State

2 [1986] PNGLR 148 Kidu CJ Amet, Cory, Los and Wilson JJ.

2.

It is a threshold question to determine whether the charge under Section 347 is one under the un-amended Section preserved by s.63 of the Interpretation Act or the new provision applied in conjunction with s.11 of the Criminal Code . And in order to determine that, the Supreme Court said in Avona’s Case, I must decide if the provision is an amending one or a repealing one, as s.63 of the Interpretation Act applies only to the latter. To do that one looks at the substance rather than the form of the provision, the relevant provision being the Criminal Code (Sexual Offences and Crimes against Children) Act 2002. Under Division 7 of the Criminal Code as it has been amended the maximum sentence under s.347 for rape without circumstances of aggravation is 15 years and with circumstances of aggravation,...