The State v Jeffery Wangi (2006) N3016

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 March 2006
• Citation: (2006) N3016
• Docket Number: Cr No 1606 0f 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3016

Full Title: Cr No 1606 0f 2005; The State v Jeffery Wangi (2006) N3016

National Court: Cannings J

Judgment Delivered: 15 March 2006

N3016

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1606 0F 2005

THE STATE

V

JEFFERY WANGI

KIMBE, BIALLA : CANNINGS J

13 FEBRUARY; 13, 15 MARCH 2006

SENTENCE

Criminal law – sentencing principles for rape – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after plea of guilty – distinction between rape simpliciter, Section 347(1), and rape in circumstances of aggravation, Section 347(2) – rape by 36-year-old man of 8-year old girl, his niece – circumstances of aggravation not pleaded in indictment – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment – starting point – identification of relevant considerations – sentence of 14 years.

The offender was convicted of the rape of his 8-year-old niece. He was aged 36. He acted alone. No weapons were used. There was a violation of trust. The offender did not surrender but cooperated with the police. No circumstances of aggravation were pleaded in the indictment. He pleaded guilty.

Held:

(1) This is an extremely serious case of rape under Section 347(1) of the Criminal Code.

(2) As no circumstances of aggravation are charged in the indictment the maximum penalty to which the offender could be sentenced is 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. (The State v James Yali (2006) N2989 applied.)

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

(5) This is a special case in which the offender should have been charged under Section 347(2) or Section 229A(2) of the Criminal Code. The Public Prosecutor’s failure to properly charge means that the maximum penalty to which the offender is subject is considerably less than it should have been. Therefore the extent of the benefit given on account of an early guilty plea is considerably reduced.

(6) The offender is sentenced to 14 years imprisonment.

Cases cited

The following cases are cited in the judgment:

The State v Dibol Petrus Kopal (2004) N2778

The State v James Yali (2006) N2989

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome

HIV – Human Immunodeficiency Virus

J – Justice

N – National Court judgment

SENTENCE

This was a judgment on sentence for rape.

Counsel

F Popeu for the State

O Oiveka for the offender

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of rape.

BACKGROUND

Incident

The incident giving rise to the charge took place at Soi in the Bialla District of West New Britain in 2005.

Indictment

On 13 February 2006 the accused was brought before the National Court at Kimbe and faced the following indictment:

Jeffery Wangi of Alisu, Yangoru, East Sepik Province is charged that he on the 26th day of July 2005 at Soi in Papua New Guinea sexually penetrated [the complainant] without her consent.

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

The victim of the incident is referred to in this judgment as “the complainant”, consistent with Section 1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 26 July 2005 the accused was at Soi Oil Palm Settlement. He went into the bush to look for worms for fishing. He met the complainant there. She was eight years old at the time. She was with her six year old sister. They were in the garden. The accused told the complainant’s sister to go to the other side of the garden to look for worms while he remained with the complainant. As soon as she left he grabbed the complainant, removed her shorts, put her on the ground, then sexually penetrated her by introducing his penis into her vagina and ejaculating. He did all that without the complainant’s consent.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him. He is now referred to as the prisoner.

ANTECEDENTS

Mr Popeu for the State notified the court that the prisoner has no prior convictions. The pre-sentence report suggested that, in fact, he does have a prior conviction for a similar offence. However, that was not verified and I have disregarded that claim for sentencing purposes.

ALLOCUTUS

I administered the allocutus, ie the prisoner 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 have a block. I have a wife and seven children. I did not plan to do this thing. I had gone to the block to look for worms. By accident I fell into this temptation. I say sorry to the community and to the public and to the court. I ask for mercy and to be considered for probation.

OTHER MATTERS OF FACT

I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything that has not been raised that may be favourable to the offender that is relevant to the sentence. I have done that as he has pleaded guilty. However, there is nothing favourable to him in the depositions.

RELEVANT LAW

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.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka submitted that as no circumstances of aggravation were pleaded in the indictment the maximum penalty was 15 years imprisonment. He highlighted that the offender pleaded guilty and he expressed remorse. Mr Oiveka conceded that the offender was the complainant’s uncle.

SUBMISSIONS BY THE STATE

Mr Popeu conceded that the maximum penalty was 15 years imprisonment. However, this was a serious case and the court must consider the prevalence of this offence and the need to provide a deterrent against this sort of violation of trust. There was a large age difference between the offender and the victim who was a mere eight years old. The sentence must reflect the seriousness of the offence. The court should impose a sentence in the range of 10 to 15 years.

PRE-SENTENCE REPORT

To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

The offender is now aged 37 – left his village in East Sepik in 1990 to live in the Bialla District – has not been back since – was looking after an oil palm block at Soi but the owner sold it – his residence is now at Vilelo where he lives with relatives – he is married with seven children – not happily married.

He never went to school and has never been employed – was relying on income derived from sale of oil palm – but now that the block has been sold he has no source of income.

Claims to have had collarbone broken by police – his right hand is paralysed due to an accident while harvesting oil palm – does not drink alcohol or smoke anymore – health OK.

On release from custody, he plans to reconcile with the victim and pay compensation, including a pig.

The victim’s grandparents were interviewed – grandmother said that they had demanded K20,000.00 compensation but it had not been paid so the offender should go to gaol – grandfather alleged that the offender was guilty of two previous rapes [as indicated above, these allegations were not verified and have been disregarded for sentencing purposes].

The victim was interviewed – said she was in first grade at Soi Primary School when the incident happened.

The report concludes that the offender appears to have a behavioural problem and requires professional assistance.

DECISION MAKING PROCESS

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 are the considerations that should be taken into account in determining the head sentence, in terms of years?

· step 4: what is the head sentence?

· step 5: should all or part of the sentence be suspended?

· step 6: if all or part of the sentence is suspended, what conditions should be imposed?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

The current sentencing regime for rape distinguishes between:

· rape under Section 347(1) (which could for the sake of convenience be called rape simpliciter) for which the maximum penalty is 15 years imprisonment; and

· rape in circumstances of aggravation under Section 347(2) (which could for the sake of convenience be called aggravated rape) for which the maximum penalty is life imprisonment.

In the present case the...