The State v Douglas Jogioba (2007) N4085

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 October 2007
• Citation: (2007) N4085
• Docket Number: CR NO 1765 OF 2005
• Court: National Court
• Year: 2007
• Judgement Number: N4085

Full Title: CR NO 1765 OF 2005; The State v Douglas Jogioba (2007) N4085

National Court: Cannings J

Judgment Delivered: 26 October 2007

N4085

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1765 OF 2005

THE STATE

V

DOUGLAS JOGIOBA

Buka: Cannings J

2007: 25, 26 October

SENTENCE

CRIMINAL LAW – sentencing – rape – sentence after trial – two offences, same victim – offences committed by schoolteacher against 16-year-old student – circumstances of aggravation charged and proven – Criminal Code, Section 347(2) – total sentence of 10 years.

A schoolteacher was found guilty after trial of two counts of rape of a 16-year-old student, committed on school premises. Sexual penetration consisted of, on count 1, insertion of the offender’s fingers into the victim’s vagina and, on count 2, insertion of his fingers and penis into the vagina. The victim was young and naïve and the offender abused his position of trust and authority to induce consent, which was found not to have been free and voluntary. Circumstances of aggravation were charged in each count on the indictment.

Held:

(1) The starting point for sentencing for rape under Section 347(2) of the Criminal Code is 15 years imprisonment.

(2) Mitigating factors are: offender acted alone; no offensive weapon; no torture; no confinement; digital penetration; victim not disabled; no STD; no other indignity; dignity; co-operated with police; no further trouble; first-time offender; effect on offender’s family; assault, job loss, District Court proceedings.

(3) Aggravating factors are: large age gap; youthful victim; abuse of position of trust and authority; no provocation; no dignity; did not give himself up; no reconciliation; took the matter to trial; not a youthful offender.

(4) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(5) The following notional sentences were passed: count 1: 6 years; count 2: 10 years; resulting in a total potential sentence of 16 years.

(6) The offences were separated in time by several days, so they ought not be treated as part of a single transaction, which means the sentences should be served cumulatively, ie a total term of 16 years.

(7) The totality principle, however, requires a reduction in the total sentence, apportioned as count 1: 4 years and count 2: 6 years.

(8) Accordingly the court imposed a total head sentence of 10 years. The pre-sentence period in custody was deducted, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Alex Matasol Hagali CR No 928/1997

The State v Douglas Jogioba CR No 1765/2005, 24.10.07

The State v George Tomeme CR No 920/2002, 18.07.07

The State v James Yali (2005) N2989

The State v Jeffery Wangi (2006) N3016

The State v Joe Sime CR No 1078/2004, 25.08.06

The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05

The State v Noutim Mausen CR No 596 of 2004, 24.08.05

The State v Philip Nangoe CR No 392/2006, 24.10.07

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome

CR – Criminal case reference

HIV – Human Immunodeficiency Virus

J – Justice

K – kina

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

STD – sexually transmitted disease

v – versus

SENTENCE

This was a judgment on sentence for rape.

Counsel

L Rangan for the State

P Kaluwin for the offender

26 October, 2007

1. CANNINGS J: Douglas Jogioba, a man aged in his early 30s, has been found guilty, after trial, of two counts of rape of a 16-year-old girl. The offences were committed at Wakunai Primary School in Bougainville, when the offender was a teacher there, in 2004. The victim “L” was one of his students. Both offences were committed after school, at the offender’s office. On each occasion he asked L to come and see him in his office.

2. The crime of rape consists of two elements: sexual penetration and lack of consent.

3. On the first occasion, penetration consisted of the offender pushing his fingers into the victim’s vagina. He told her he wanted her to know the names of pieces of human anatomy. On the second occasion he penetrated her vagina with his fingers and penis, again on the pretext that he was educating her about the human reproductive system.

4. The victim did not consent to penetration on either occasion. Though there was little or no physical resistance, the offender took advantage of the victim’s sexual naivety, abusing his position of trust, authority and power and thereby inducing her to have sex with him. There was no free and voluntary agreement to have sex.

5. Further details of the offences are in the written judgment on verdict in The State v Douglas Jogioba (2007) N4084

ANTECEDENTS

6. The offender has no prior convictions.

ALLOCUTUS

7. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise to the court, the State, the complainant and Elizabeth [the complainant’s aunty, who was a State witness]. I stand here as an innocent man. Who will suffer the most if I am committed to custody? I ask the court to take into account that I was assaulted because of this case. I have suffered emotional stress while this case has been going on. I am concerned about my little boy, my son. He has a speech impediment and needs special care and attention. He could be vulnerable if I am committed.

PERSONAL PARTICULARS

8. Douglas Jogioba is 31 years old. He is from Oro Province and is married to a woman from Buka Island. They have one child. The offender obtained a certificate in teaching from Holy Trinity College, Mt Hagen, in 1997. Both parents are alive. He is the first born in a family of eight.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin submitted that neither offence fell into the worst case category of rape. The first offence was a ‘technical rape’, as it only involved digital penetration. The second offence was also ‘technical rape’ as there was no violence involved and in fact there was consent even though in law the court concluded that sex was non-consensual. The offender has suffered a lot already. He has lost his job and been assaulted twice. There are no aggravating features of the incidents. There was no violence and the victim has recovered as she is now married, and is pregnant. He is ready to reconcile. He has recently been ordered to pay K5,000.00 compensation by the District Court. Sentences of five years and eight years would be appropriate.

SUBMISSIONS BY THE STATE

10. Mr Rangan contended that much higher sentences were warranted, in view of the serious breach of trust by a schoolteacher: 10 and 15 years. The victim was of a tender age and the impact of the persistent sexual abuse she endured is likely to be long-lasting.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty for each offence?

· step 2: what is a proper starting point for each offence?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence for each offence?

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence period in custody be deducted?

· step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 347 (rape) of the Criminal Code states:

(1) A person who sexually penetrates a person without [her or] 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.

13. There was a circumstance of aggravation charged in each count on the indictment: that in committing the offence the offender abused a position of trust, authority and dependency. This is a circumstance of aggravation for rape, prescribed by Section 349A(e) of the Criminal Code. A schoolteacher is in a relationship of trust, authority and dependency in relation to his students per force of Section 6A(2)(d) of the Criminal Code. It was proven at the trial that the offender abused that relationship and the position of trust and authority that he occupied.

14. Therefore the maximum penalty on each count is life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

15. 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.

16. I follow that approach in this case and use 15 years imprisonment as a...