The State v George Tomeme (2007) N5038

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 August 2007
• Citation: (2007) N5038
• Docket Number: CR NO 920 OF 2002
• Court: National Court
• Year: 2007
• Judgement Number: N5038

Full Title: CR NO 920 OF 2002; The State v George Tomeme (2007) N5038

National Court: Cannings J

Judgment Delivered: 24 August 2007

N5038

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 920 OF 2002

THE STATE

V

GEORGE TOMEME

Kimbe: Cannings J

2007: 18, 19 July, 23, 24 August

CRIMINAL LAW – sentencing – rape – sentence after trial – victim, a young woman – Criminal Code, Section 347(1) – sentence of 12 years

A man was found guilty after a trial of rape of a young woman. She had been raped by a group of other young men when the offender arrived on the scene and led her away, apparently to safety, only to rape her himself. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.

(2) Mitigating factors were: small age gap between offender and victim; victim not in specially vulnerable category; offender acted alone; no torture; no confinement; victim not a family or clan member; victim not a disabled person; no STD; spontaneous incident; no other indignity; co-operated with police; no further trouble; first offender.

(3) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended because of a good pre-sentence report.

Cases cited

The following cases are cited in the judgment:

James Meaoa v The State [1996] PNGLR 280

The State v Alex Matasol Hagali CR No 928/1997

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

The State v James Yali (2005) N2989

The State v Jeffery Toapas (No 2) CR No 24 of 2004, 25.08.06

The State v Jeffery Wangi (2006) N3016

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

The State v John Ritsi Kutetoa (2005) N2814

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

The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05

SENTENCE

This was a judgment on sentence for rape.

Counsel

F Popeu, for the State

B Tanewan, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a man convicted after trial of the rape of a young woman. The offender, George Tomeme, committed the offence around 6.00 pm on Monday 17 September 2001 at Gigo Beach in Kimbe. Shortly before meeting the offender the victim had been raped by six other men. The offender led her away from them on the pretext that he was saving her, then proceeded to rape her himself. Further details of the offence are in the written judgment on verdict in The State v George Tomeme CR No 920/2002, 18.07.07.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I apologise for what I have done. I have two children to look after. My wife left me when this trouble happened and they are now with their grandparents. I ask for mercy and probation.

PRE-SENTENCE REPORT

4. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

GEORGE TOMEME: 34-year-old male.

Residence: Bola village, Talasea area, WNB; previously living at Laleki, Kimbe.

Family background: Mixed ENB/WNB parentage – mother alive (frail); father deceased – offender is sixth born in family of eight – his mother is looking after his two children.

Marital status: married but separated.

Education: grade 6, Kimbe Primary, 1987.

Employment: only a brief stint at Liamo Resort, Kimbe in 2002 – resigned due to low pay.

Health: OK.

Financial status: relies on income from sale of copra and cocoa.

Plans: go back to village, build a new house and take care of his children.

Victim’s attitude: would prefer to see offender not go to jail, so that he can afford some compensation for her.

Offender’s family’s attitude: supportive.

Attitude of community: comes from a peaceful family – offender well regarded in the village.

Assessment: not a threat to community.

Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Tanewan highlighted the offender’s prior good character and the fact that he is a first offender. The pre-sentence report shows that he is not considered a threat to the community and justifies a partly-suspended sentence. The offence was committed out of character.

SUBMISSIONS BY THE STATE

6. Mr Popeu, for the State, submitted that a sentence of 12 years should be imposed, in light of the fact that some violence was used; the victim had just been through a terrible ordeal and he exploited the opportunity provided by the circumstances.

DECISION MAKING PROCESS

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

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

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

· step 4: what should the head sentence be?

· step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The indictment was presented under Section 347(1) (rape) of the Criminal Code, which 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.

9. The existing Section 347 commenced operation on 12 April 2003. It made the offence of rape gender neutral and introduced a new sentencing regime. Under the old Section 347, there was a single maximum penalty of life imprisonment. In the present case the date of the offence (17 September 2002) was before the date of commencement of the existing Section 347 (12 April 2003). The offender was correctly charged under the new law. Now he must be sentenced according to the lesser of the two maximum penalties available under the new law, which is 15 years or life imprisonment, depending on whether circumstances of aggravation were charged in the indictment, and the old law, which is life imprisonment (The State v John Ritsi Kutetoa (2005) N2814 and The State v Jeffery Toapas CR No 24 of 2004, 25.08.06; and Criminal Code, Section 11(2)). As no circumstances of aggravation were charged in the indictment, he faces a maximum penalty of 15 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In The State v James Yali (2005) N2989 I held that the proper starting point for sentencing under Section 347(1) is 10 years. I follow that approach in this case.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. Before I fix a sentence, I will consider recent sentences that I have imposed for rape, as shown in the table below.

RAPE SENTENCES, 2005-2007

No	Case	Details	Sentence
1	The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05, Kimbe	Guilty plea – rape constituted by forcing the victim to suck his penis – no aggravated violence – no prior convictions – remorse – conviction under Section 347(1).	4 years
2	The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05, Kimbe	Trial – offender, 20-years-old, convicted of rape of middle-aged woman – threatened to use bush knife – no circumstances of aggravation charged – conviction under Section 347(1).	10 years
3	The State v James Yali (2006) N2989, Madang	Trial – offender raped 17-year old sister of his de facto wife – no circumstances of aggravation charged – conviction under Section 347(1).	12 years
4	The State v Jeffery Wangi (2006) N3016, Bialla	Guilty plea – victim an 8-year-old girl – no circumstances of aggravation charged in indictment – conviction under Section 347(1).	14 years
5	The State v Joe Sime CR No 1078/2004, 25.08.06, Buka	Guilty plea – offender raped his niece, aged 16 – threatened her with a small axe – genuine remorse – strong mitigating factor was the conditions of detention at Buka police lock-up – conviction under Section 347(2).	10 years
6	The State v Alex Matasol Hagali CR No 928/1997, 29.09.06, Buka	Trial – offender threatened victim with bush-knife, pulled her into bushes, sexually penetrated her without her consent, on two separate occasions, within short space of time – no aggravated physical violence – offender aged 17 at time of offence; victim aged 19 – two convictions under Section 347(1) – concurrent sentences.	6 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The list is based on the...