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

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 30 April 2004
• Citation: (2004) N2552
• Court: National Court
• Year: 2004
• Judgement Number: N2552

Full Title: The State v Julius Ombi (No 2) (2004) N2552

National Court: Kandakasi J

Judgment Delivered: 30 April 2004

1 CRIMINAL LAW—Sentence—Abduction and attempted rape of a relative—Breach of trust—Conviction after trial—First young offender—No physical injuries—No compensation or tangible demonstration of remorse—9 years concurrent sentence imposed—Criminal Code s19, s348 and s350.

2 The State v Lucas Yovura (2003) N2366, Joseph Nimagi v The State (2004) SC741, The State v Thomas Waim [1995] PNGLR 187, Bokun Umba v The State (1976) SC92, The State v Michael Amuna Koupa [1987] PNGLR 208, The State v Kevin Anis (2003) N2360, The State v Wesley Nobudi (2002) N2510, Paulus Mandatititip v The State [1978] PNGLR 128, The State v Otom Masa (2000) N2021, The State v Albert Monja [1987] PNGLR 447, The State v Tobby Tani (1994) N2063, The State v Otto Paulus (2002) N2241, The State v Joseph Minjihau (2002) N2243, The State v Kevin Mariano (2000) N1984 referred to

Decision on Sentence

___________________________

N2552

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 342 of 2004

THE STATE

-V-

JULIUS OMBI

(No. 2)

POPONDETTA: KANDAKASI, J.

2004: 28th and 30th April

DECISION ON SENTENCE

CRIMINAL LAW – Sentence - Abduction and attempted rape of a relative – Breach of trust - Conviction after trial – First young offender – No physical injuries – No compensation or tangible demonstration of remorse – 9 years concurrent sentence imposed – Criminal Code ss.19, 348 and 350.

Cases cited:

The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.

Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04).

The State v. Thomas Waim [1995] PNGLR 187.

Bokum Umba v. The State (Unreported judgment delivered on 02/04/76) SC92.

The State v. Richard Amuna Koupa [1987] PNGLR 208.

The State v. Kevin Anis & Martin Ningigan,(Unreported judgment delivered on 07/04/03) N2360.

The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310.

Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.

The State v. Otom Masa (Unreported judgment delivered on 20/12/20) N2021.

The State v. Albert Monja [1987] PNGLR 447.

The State v. Tobby Tani (Unreported judgment delivered on 13/09/94) N2063.

The State v. Otto Paulus (Unreported judgment delivered on 22/05/02) N2241.

The State v. Joseph Minjihau (Unreported judgment delivered on 24/05/02) N2243.

The State v. Kevin Mariano (Unreported judgment delivered on 18/08/00) N1984

Counsel:

P. Kaluwin for the State

P. Kumo for the Accused

30th April 2004

KANDAKASI, J: The Court found you guilty on one charge of abduction and another of attempted rape respectively under sections 350 and 348 of the Criminal Code (“the Code”).

The relevant facts are setout in full, in the judgment on verdict (The State v. Julius Ombi No.1) delivered on the 27th of this instant. For the purposes of sentencing however, I note the following facts:

·The victim was your blood cousin and was younger than you;

·You abducted her from a creek as she was trying to fetch water;

·After abduction and taking her into a bush, you tried to rape her through the anus;

·The victim did not suffer any physical injuries;

In addition to these facts, I note that, you denied the charges. This forced the victim to come into Court and testify against you. In that way, you forced her to recall and relive the ordeal and bad memories before her assailants and other strangers.

I also note and take into account that, you are about 17 years old and come from the Togaho village, here in the Oro Province. You completed your grade ten (10) and have progress to doing university through extension studies here. You are worried that this might be affected if sent to prison. This is however, a direct consequence of your own actions. If you did not commit the offence, this could not have become a problem. The law is clear, a latest statement of which is in The State v. Lucas Yovura (Unreported and judgment delivered on 29/04/03) N2366 in these terms:

“Indeed I note what the Supreme Court said in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to your family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you.”

Further, I note that you are a young first time offender, which goes in your favour. Nevertheless, it is necessary to consider this in the light of the recent development in the law too. A recent statement of the law is by the Supreme Court in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741. There, the Supreme Court endorsed the position taken by both the Supreme and National Courts judgments in The State v. Thomas Waim [1995] PNGLR 187; Bokum Umba v. The State, (Unreported judgment delivered on 02/04/76) SC92; The State v. Richard Amuna Koupa [1987] PNGLR 208; The State v. Kevin Anis & Martin Ningigan,(Unreported judgment delivered on 07/04/03) N2360; The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310 and Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.

These cases say that, youth cannot continue to be a mitigating factor in serious cases. Instead, strong deterrent sentences are required where the offence is prevalent. Youthful offenders should not receive special treatment unless there are exceptional circumstances, which warrant a lesser term of the prescribed maximum sentence. This is because of the numerous warnings in the past cases, particularly in serious cases like that of wilful murder, murder, rape and robbery. Despite these warnings, many youths in the age group 15 to 25 years are committing these kinds of offence.

The next factor is the fact that you pleaded not guilty. This forced the State to call witnesses to prove the charges against you. That also meant the Court had to sit to hear your case and determine your guilt or innocence, which in turn meant more time and costs to the State. The trial revealed that, you had no good basis to go to trial. Thus, you took the State and therefore the people of Papua New Guinea for an expensive ride without you bearing any of it. This is therefore a serious factor against you.

The other factor against you is that, you committed two offences in breach of a trust placed in you as a blood relative and in particular a cousin. You were also older than the victim was and did not act responsibly but use that to your advantage against your own blood.

Section 348 of the Criminal Code creates and prescribes a penalty of 14 years for the offence of attempted rape. As I noted in The State v. Otom Masa (Unreported judgment delivered on 20/12/20) N2021, there are not many reported cases on this kind of offence especially in relation to sentence. The only case at the time of my judgment in that case was The State v. Albert Monja [1987] PNGLR 447. In that case, the offence was committed against a sleeping girl. The offender thought she was a person he knew and so therefore, she would respond favorably to her physical advances. The offender was intoxicated with alcohol at the time of committing the offence. Before imposing a sentence of four (4) years, the Court took into account the defendant’s background and other factors in his mitigation and said at page 448:

“However, against those things must be placed the indisputable fact that you committed a serious and all too prevalent crime against an innocent woman. This type of offence is regarded very seriously and calls for a significant custodial sentence. Women must be able to go safely and unmolested about...