The State v Otom Masa (2000) N2021

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 December 2000
• Citation: (2000) N2021
• Court: National Court
• Year: 2000
• Judgement Number: N2021

Full Title: The State v Otom Masa (2000) N2021

National Court: Kandakasi J

Judgment Delivered: 20 December 2000

N2021

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 542 of 2000

THE STATE

-V-

OTOM MASA

LAE: KANDAKASI, J.

2000: DECEMBER 5, 12, 20

CRIMINAL LAW — Sentence — Attempted rape of 3 year old girl — Guilty Plea -Victim related to accused — No aggravating factors — Sentences to be guided by sentences in other sex offences — Pre-sentencing report need not be followed — Criminal Code Act (Ch.262) s. 348

Cases cited

The State v. James Garave Guba unreported and unnumbered judgement delivered on the 19th of December 2000 here in Lae) CR 340 of 2000

The State v. Albert Monja [1987] PNGLR 447

The State v. Thomas Dika Guta (unreported but numbered judgement of Doherty AJ as she then was) N841

The State v. Thomas Pipon [1998-89] PNGLR 179

The Secretary for Law v Kwauga [1974] PNGLR 135,

Counsel

N. Miviri for the State

M. Mwawesi for the Defendants

DECISION ON SENTENCE

20 December, 2000

KANDAKASI, J: On the 5th of December 2000, the prisoner pleaded guilty to one count of attempted rape contrary to s.348 of the Criminal Code Act (Ch.262) (hereinafter "the Code. The administration of the allocutus was uneventful and I proceeded to hear address on sentence mainly from the defence counsel. The State made no submissions. The matter was thereafter adjourned to the 12th of December 2000, to allow for a pre-sentencing report. The report was not ready on that date and the matter was further adjourned to today on the Probation Service's request. The report is now before the court and the court is very grateful for it. Both counsels choose not to make any submissions.

Facts

On the 11th of August 1999 at Konge village in the Kabwum District of the Morobe Province, the prisoner committed an act of attempted rape against a small girl, then aged 3 years 4 months old. The victim was the prisoner's niece, going by the victim's father's line. Prior to the commission of the offence, the victim was sleeping in her paternal aunt's house. The prisoner went to that house and woke up the victim and carried her to his own house. Once at his house, he removed the victim's cloths and his and he proceeded to attempt to have sexual intercourse with the victim through both the victim's vagina and anus. However, because of the victim's tender age, the prisoner was not able to effect complete penetration. In the process he caused bruises or lacerations to the victim's vaginal track as well has her anus and ejaculated causing the victim to cry of pain due to the lacerations and or bruising. The prisoner said he has had no sexual experience before and was only trying to experience it with the victim.

When the victim cried of the pain he caused her, the prisoner took her back to the house he got her from and he returned to his house. Once back at the house she was taken from, the victim complained of pain caused to her and reported what had happened to her to her parents, who reported the matter to the community leaders and the local police. They also took the victim to the local health center for medical examination. An examination carried out on the victim the next day of the incident confirmed the lacerations and or bruises. It also confirmed that due to the age of the victim there was no full penetration.

Address on Sentence

In his allocates, the prisoner asked for a good behaviour bond and he be placed under probation service. In so doing, he stated that he was an ordinary villager with no formal education. His parents are deceased and that he looks after his younger siblings. He also has many properties to look after. Further he said he did not kill the victim and that his sperm fell on the ground.

Mr. Mwawesi for the Defendant submitted that his client was the 3rd out of 4 children in the family. His client has no prior convictions and this is his first ever offence. He is about 21 years old. His client pleaded guilty to the charge, thereby saving the State and the Court time and expenses that could have been incurred if a trial was conducted. He therefore, supported and endorsed his client's call for a non-custodial sentence. He also asked that a pre-sentencing report be requested, obtained and considered before sentencing the prisoner, which request was granted. As noted earlier, the court now has a pre-sentencing the report in question.

Mr. Mwawesi was not able to point to an authority to support his argument for a non-custodial sentence or any case on attempted rape. I was therefore, left with no assistance at all, but to look for the relevant case or law on point myself. For future purposes, I will only refer to what I just said in The State v. James Garave Guba (unreported and unnumbered judgement delivered on the 19th of December 2000 here in Lae) CR 340 of 2000, and ask that, counsel ensure not to repeat this kind of conduct.

The pre-sentencing report

The pre-sentencing report recommends a non-custodial sentence with conditions. However, for the reasons I am soon to go into, I have decided against imposing a sentence in line with that recommendation. In so deciding, I note that, a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any...