The State v Pascal Maya Omi (2005) N2808

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2808
• Docket Number: CR No 361 of 2000
• Court: National Court
• Year: 2005
• Judgement Number: N2808

Full Title: CR No 361 of 2000; The State v Pascal Maya Omi (2005) N2808

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2808

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 361 0F 2000

THE STATE

V

PASCAL MAYA OMI

BUKA : CANNINGS J

16, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division V.7, Sexual Offences and Abduction – Section 348, attempt to commit rape – sentence on plea of guilty – offender aged 19 years at time of offence, complainant aged 17 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – cousins – isolated incident – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – tangible things done to apologise – determination of maximum penalty – expression of remorse – first offender – youthful offender – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – sentence of one year – all of which shall be suspended on satisfaction of prescribed conditions.

Cases cited

Doreen Liprin v The State (2001) SC673

The State v Eric Vele (2002) N2252

L Rangan for the State

L Siminji for the accused

CANNINGS J:

INTRODUCTION

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

BACKGROUND

Incident

The incident giving rise to the charge took place at Malasang No 2 village, Buka Island, Bougainville, on 24 May 1999. It was alleged that the accused attempted to sexually penetrate a young woman without her consent.

Indictment

On 16 March 2005 he was brought before the National Court and faced the following indictment:

Pascol Maya Omi of Malasang No 2 village, Buka Island, Papua New Guinea, stands charged that he on the 24th day of May 1999 at Malasang No 2 village … attempted to sexually penetrate Joyceline Semei [the complainant] without her consent.

The indictment was presented under Section 348 of the Criminal Code.

FACTS

Allegations

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

At 3.00 pm on the day of the incident the complainant was at the accused’s place at Malasang No 2. At the accused’s request, she and the accused went to a local cocoa plantation to look for ripe bananas. When they got there the accused grabbed the complainant by the arm and pushed her to the ground. He then tried to remove her shorts. He indicated that he wanted to have sexual intercourse with her. She struggled, kicked him and ran away. He attempted to sexually penetrate the complainant without her 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 the accused. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender 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 say sorry to the court. I did not know that this was the law when I did this thing. We have reconciled back at the village. The problem is fixed. I am now married with children. I do not know who will be there to look after them if I am not around. I will not do this kind of thing again.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Siminji referred to a number of mitigating factors. The offender has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He committed the offence at a relatively young age. He was only 19. He was arrested the day after the incident and came to Buka at the request of the police. Soon after the arrest he was granted bail. There was only a small age difference between the offender and the complainant. She was not injured by the assault. The incident happened six years ago. It is in the past.

He has made a genuine attempt to reconcile. Mr Siminji presented a statement by village chief, B Hona, that the offender had paid K300.00 cash plus rice, kaukau and tinned meat to the complainant and her family in 1999. The two families had shaken hands and sorted things out. Both the offender and the complainant have since married.

A low-range sentence is appropriate and all of it should be suspended, Mr Siminji argued.

Personal particulars

The offender is now aged 24. He is married. He lives in the village. He was educated to Grade 8.

SUBMISSIONS BY THE STATE

Mr Rangan did not take issue with the claims made about reconciliation. As to the sentence that should be imposed, this was a matter for the court’s discretion, Mr Rangan submitted.

RELEVANT LAW

Section 348

The indictment was presented under Section 348 (attempt to commit rape) of the Criminal Code, which states:

A person who attempts to commit the crime of rape is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

The maximum penalty is therefore 14 years imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the offender can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the offender may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the offender can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the appropriate head sentence, in terms of years?

· step 2: should all or part of the sentence be suspended?

· step 3: if all or part of the sentence is suspended, what conditions should be imposed?

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

· first, I will identify an appropriate starting point or reference point;

· secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and

· thirdly, I will apply those considerations to the facts of the present case.

Starting point

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being deal with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of seven years as the starting point.

Relevant considerations

There are a number of considerations that I consider should be taken into account in determining an appropriate head sentence. These are:

1 Was the attempted act not completed due to the offender’s actions?

2 Was there only one offender?

3 Did the offender not use a threatening weapon and not use aggravated physical violence?

4 Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

5 Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

6 Was it an isolated incident?

7 Did the offender give himself up after the incident?

8 Did the offender cooperate with the police in their investigations?

9 Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony or personally or publicly apologising for what he did?

10 Has the offender not caused further trouble to the victim or the victim’s family since the incident?

11 Has the offender pleaded guilty?

12 Has the offender genuinely expressed remorse?

13 Is this his first offence?

14 Can the offender be regarded as a youthful offender?

15 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some...