The State v Otto Paulus (2002) N2241

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 May 2002
• Citation: (2002) N2241
• Court: National Court
• Year: 2002
• Judgement Number: N2241

Full Title: The State v Otto Paulus (2002) N2241

National Court: Kandakasi J

Judgment Delivered: 22 May 2002

N2241

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 51 of 2002

THE STATE

-V-

OTTO PAULUS

WEWAK: KANDAKASI, J.

2002: 13th and 21st May

CRIMINAL LAW - Sentence – Attempted rape of a married woman – Breach of de facto trust – Threats and actual force or violence used – Victim sustained knife wound injury – Prevalence of the offence of rape considered – Prisoner with a prior conviction – No evidence of compensation being paid or otherwise make it right with the victim and her relatives and husband – A strong deterrent sentence called for – Sentence of 9 years imposed – Criminal Code ss.348 and 19

Cases cited:

The State v. Otom Masa (20/12/20) N2021.

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

The State v. Tobby Tani (13/09/94) N2063.

The State v. Joe Foe Leslie Leslie (07/10/96) N1556.

Counsel

Mr. M. Ruarri for the State

Mr. D. Kari for the Accused

DECISION ON SENTENCE

22nd May, 2002

KANDAKASI J: You pleaded guilty to one charge of attempted rape of a married women (named but mentioned only as the victim for her protection) here in Wewak on the 15th of September 2001. That was contrary to section 348 of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore, accepted your guilty plea and convicted you on the charge as presented.

Address on sentence

I then asked you to address me on sentence and you said it was true that you committed the offence and asked for mercy from the Court. Your lawyer addressed the Court further on that. He submitted that you have pleaded guilty and co-operated well with the police and the other authorities up to this Court. This saved the State and the Court substantial time it could have taken if there was a denial. He also asked me to note you personal background and that this is only a case of attempted rape and not actual rape. Taking these factors into account he submitted that a custodial sentence of 6 to 8 years would be appropriate, without citing any authority for that.

The State made not submissions except to draw to the Court’s attention that you have a prior conviction for being in possession of an unlicensed firearm. Although that was not for an offence similar to the present one, it was still relevant to show that you have been in trouble with the law before. This is thus you second offence and conviction.

The relevant facts are not in contest. On 15th September 2001, you were at Dagua market close to the Council Chambers here in Wewak. That was about 3:00 p.m. The victim came and asked you if you had seen her husband after she had seen a woman who used to go around with her husband heading the Dagua way. The victim is known to you as the wife of a driver of a vehicle you were a crew of and she knows you as a crew of the vehicle her husband drives. You lied to her by saying her husband went with his wife in a vehicle and that he could have gone to the Kaparai or the Taitai Club. Her response was “I will follow them.” When she said that you told her that you would accompany her and the two of you first went to the Kaparai Club. The victim’s husband was not there and the club was closed. So you proceed to the Taita Club using a short cut you knew.

When you reached the Taita Club, the victim’s husband was not also there. The victim told you that she would get to the ESWA Hall bus stop and go home. You however said to her that you should get out the Windjamer Hotel way. Fearing nothing because you were a work mate of her husband, she accepted that and followed you. On the way just before reach the Windjamer Hotel, she asked you to go quickly ahead incase her husband returns. She then went into the nearby bushes to urinate.

To her surprise you got to where she was and grabbed hold of her and forcefully laid her down on the Kunai grass that were there. At the same time you pulled her short and panties down and opened her legs and tried to push your penis into her vagina. You tried that several times without success as she called out and at the same time struggled with you. Realising that you could not get what you wanted, you pulled out a pocket knife and stabbed her on the back of her head causing her to bleed heavily. You then let her go and she said to you that she will go to her sister at Windjamer Hotel to change her cloths, which was a lie just to get away from you but you did not allow that. Instead, you said to her, both of you will follow the beach road. Before doing that you washed the blood off from her head and cloths. You then went onto the road and a police vehicle arrived and victim stopped it but they could not catch you that time because you ran away into hiding.

The victim was taken to the police station where she gave a statement. From there, she was taken to the hospital for medical examination and treatment. Her wound to the back was cleaned and sutured with 4 stitches and she was given 5 days supply of medicine and sent home. The relevant medical report confirms no penetration of the vagina but did confirm presence of whitish vulval deposits.

You were at large until arrested by police on 19th November 2001. You have been held in custody up to this day awaiting you trial and decision on sentence. You have therefore been in custody for a little over 6 months now.

The offence and sentencing trend

The offence of attempted rape with its penalty is created and prescribed by s. 348 of the Code. It prescribes a maximum penalty of 14 years.

As I noted in The State v. Otom Masa (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 judgement in that case was The State v. Albert Monja [1987] PNGLR 447. In that case, the prisoner pleaded guilty to a charge of rape but was turned to not guilty to run the case as a “test case”. After a trial, the defendant pleaded guilty to a charge of attempted rape following the court’s ruling that, the defendant could not be convicted of rape. The offence was committed against a sleeping girl whom the offender thought was a person he knew and that she would respond favorably to her physical advances. At the time the offender was intoxicated with alcohol. Before sentencing, the court took into account the defendant’s background and other factors in 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 their everyday activities. In my view, but for one final matter I am about to mention, a sentence of about four years imprisonment in addition to time spent in custody to date would be appropriate for this offence.”

In the Otom Masa case (supra), the...