The State v James Yali (2006) N2989

• Jurisdiction: Papua New Guinea
• Judge: 19 January 2006
• Citation: (2006) N2989
• Docket Number: CR No 368 of 2005
• Court: National Court
• Year: 2006
• Judgement Number: N2989

Full Title: CR No 368 of 2005; The State v James Yali (2006) N2989

National Court: 19 January 2006

Judgment Delivered: Cannings J

N2989

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG : 17, 19 JANUARY 2006

CANNINGS J

SENTENCE

Criminal law – sentencing principles for rape – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after trial – distinction between rape simpliciter, Section 347(1), and rape in circumstances of aggravation, Section 347(2) – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment – starting point – identification of relevant considerations – sentence of 12 years.

The offender was convicted of the rape of his de facto wife’s sister. He was aged 41 and a member of the National Parliament at the time of the offence. The victim was aged 17 years. The offender acted alone. No weapons were used. There was no aggravated physical violence. The victim was not physically injured. There was a violation of trust. The offender did not surrender but cooperated with the police to a certain extent. He has caused trouble since the incident. There was an exchange of a substantial amount of money following the incident but this fell short of being regarded as compensation. There was a high degree of sexual indignity. He has not expressed remorse. He has one previous conviction, for assault. He is not a youthful offender. The offence was committed while he was a member of the Parliament and Governor of his province.

Held:

(1) This was a serious case of rape under Section 347(1) of the Criminal Code.

(2) As no circumstances of aggravation were charged in the indictment the maximum penalty to which the offender could be sentenced was 15 years imprisonment.

(3) The court should use 10 years imprisonment as a starting point when sentencing under Section 347(1), then consider all mitigating and aggravating circumstances.

(4) In the present case there were more strongly aggravating circumstances than strongly mitigating circumstances and it was proper to sentence the offender above the starting point.

(5) The offender was sentenced to 12 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Daniel Kemi Mebil v The State (2004) SC749

Didei v The State [1990] PNGLR 458

James Mora Meaoa v The State [1996] PNGLR 280

John Aubuku v The State [1987] PNGLR 267

John Jaminan v The State (No 2) [1983] PNGLR 318

Lawrence Hindemba v The State (1998) SC593

Manu Kovi v The State (2005) SC789

The State v Alphonse Apou Dioro (2003) N2431

The State v Biason Benson Samson (2005) N2799

The State v Damien Mangawi (2003) N2419

The State v Dibol Petrus Kopal (2004) N2778

The State v Donald Angavia & Others (2004) N2590

The State v Donald Poni (2004) N2663

The State v Eddie Trosty (2004) N2681

The State v Eki Kondi and 4 Others (No 2) (2004) N2543

The State v Ezra Hiviki (No 2) (2004) N2548

The State v Flotyme Sina (No 2) (2004) N2541

The State v Gary Sasoropa and 2 Others (No 2) (2004) N2569

The State v George Taunde (2005) N2807

The State v Henry Nandiro (No 2) (2004) N2668

The State v James Yali (2005) N2931

The State v James Yali (2005) N2988

The State v John Ritsi Kutetoa (2005) N2814

The State v Julius Ombi (No 2) (2004) N2552

The State v Junior Apen Sibu (No 2) (2004) N2567

The State v Kemai Lumou (2004) N2684

The State v Komai Balal (No 2) (2005) N2821

The State v Kunija Osake (2003) N2380

The State v Luke Sitban (No 2) (2004) N2566

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

The State v Miseal Butemo Jiregari [1984] PNGLR 62

The State v Nick Teptep (2004) N2612

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

The State v Pais Steven Sow (No 2) (2004) N2588

The State v Pascal Maya Omi (2005) N2808

The State v Penias [1994] PNGLR 48

The State v Pennias Mokei (No 2) (2004) N2635

The State v Peter Huli Hahe Haite (2003) N2383

The State v Peter Kaudik [1987] PNGLR 201

The State v Peter Lare (2004) N2557

The State v Seyo Aroko (2005) N2822

The State v Thomas Madi (2004) N2625

The State v Titus Soumi (2005) N2809

The State v Togey Bou (1996) N1530

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome

BSc – Bachelor of Science

© – copyright

CID – Criminal Investigations Division

CJ – Chief Justice

CM – Chief Magistrate

DCJ – Deputy Chief Justice

DPI – Department of Primary Industry

HIV – Human Immunodeficiency Virus

J – Justice

OIC – officer-in-charge

PMV – public motor vehicle

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

PSC – Police Station Commander

SENTENCE

This was a judgment on sentence for rape.

Counsel

N Miviri for the State

G J Sheppard and N Eliakim for the offender

CANNINGS J:

INTRODUCTION

This is a decision on sentence for a man convicted of the rape of his de facto wife’s 17-year-old sister.

BACKGROUND

On 13 December 2005 the offender, James Yali, was convicted of the rape of a young female, contrary to Section 347(1) of the Criminal Code. The offence was committed at Madang town on the night of 14 October 2004. The offender collected the victim at the house he owned, and that she lived in, in his vehicle, a single-cab utility. She went with him reluctantly. She thought that they were going to Madang Resort for a dinner being held as part of the National Governors’ conference. However, he drove through various parts of Madang town, stopping at Smugglers Inn and at his office at the Madang Provincial Government Offices before driving out along the North Coast Road. He stopped at Mis, turned around and came back to his office, parking the vehicle just outside his office door. He forced her into his office then penetrated her vagina without her consent. That was the act that constituted the offence of rape. He then brought her back to the house at the back of Madang Butchery from where he had picked her up. He was aged 41 at the time of the offence. The victim was 17 years old, attending school in Madang. She was the sister of his de facto wife. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v James Yali (2005) N2988, National Court, Cannings J).

RELEVANT LAW

The offender was charged with and convicted of rape under Section 347(1) of the Criminal Code.

Section 347 (definition of rape) of the Criminal Code states:

(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.

“Circumstances of aggravation” are defined by Section 349A (interpretation) of the Criminal Code, which states:

For the purposes of this Division [Division V.7 (sexual offences and abduction)], circumstances of aggravation include, but [are] 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).

The present Sections 347 and 349A were introduced by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, Sections 17 and 20. The new law commenced operation in April 2003. (See The State v James Yali (2005) N2931, National Court, Cannings J (ruling on evidence.) Prior to the amendment the maximum penalty for all kinds of rape was life imprisonment.

In the present case the rape charge was contained in count 2 of an indictment that contained four charges. The offender was acquitted of counts 1 (abduction) and 3 (abuse of trust). He was found guilty of count 4 (sexual assault) but no conviction was recorded as that charge was expressed as an alternative to count 2. Count 2 alleged that the offender sexually penetrated the complainant without her consent. No circumstances of aggravation were alleged.

A threshold issue in this case is: what is the maximum penalty? Is it 15 years imprisonment? Or imprisonment for life? The court has received competing submissions on this issue, which will be outlined below.

Whatever the maximum penalty is, the court has a considerable discretion...