The State v Peter Yawoma (2001) N2032

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 19 January 2001
• Citation: (2001) N2032
• Court: National Court
• Year: 2001
• Judgement Number: N2032

Full Title: The State v Peter Yawoma (2001) N2032

National Court: Kandakasi J

Judgment Delivered: 19 January 2001

N2032

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 131 of 1999

THE STATE

-V-

PETER YAWOMA

LAE: KANDAKASI, J.

2001: 17 and 19 JANUARY

CRIMINAL LAW — PRACTICE & PROCEDURE — Plea bargain — Guilty Plea to lesser charge — Possible rape charge reduced to unlawful carnal knowledge of girl under 16 years — Court bound to accept and act on charge presented — Use of depositions for relevant facts — No need to call for pre-sentencing report because of principles on disparity of sentence

CRIMINAL LAW — Sentence — Unlawful carnal knowledge of girl under 16 years — Facts disclose gang rape with injuries to the victim aged 13 yeas — Need to avoid disparity of sentence — Sentenced to 2 years less time spend in custody

CRIMINAL LAW — Criminal Law (Compensation) Act 1991 — Compensation considered inappropriate where the prisoner has no means to pay.

Cases cited:

The State v. Sabarina Yakal [1988-89] PNGLR 129.

The State v. John Gurave Guba (19th December 2000) N2020

The State v. Kevin Mariano (18 August 2000) N1984

Andrew Uramani & Others v. The State [1996] PNGLR 287

The State v. Jason Dongoma (Unreported judgement delivered 13/12/00) N2038

The State v. Jack Golu and Mopana Aure [1990] PNGLR 206

The State v. Sottie Apusa [1988-89] PNGLR 170

DECISION ON SENTENCE

Counsel

J. Pambel for the State

A. Raymond (Mrs.) for the Defendant

19 January, 2001

KANDAKASI, J: On the 17th of January 2001, the State presented an indictment against the prisoner charging him with one count of unlawful carnal knowledge of a girl under sixteen (16) years. That followed a plea bargain between the parties from the more serious charge of rape. The need to avoid disparity of sentence also dictated a presentation of the lesser charge because the prisoner's co-accused, a Luther Jack was charged with a similar charge and was sentence to two years.

The prisoner pleaded guilty to the charge presented against him. Upon a reading of the depositions, which were admitted into evidence without any objection from the defence, I proceed to confirm the guilty plea and convicted the prisoner of the charge as I was satisfied there was sufficient evidence to support the guilty plea. A decision on sentence was reserve to today. This is the decision.

Facts

It is now a well established practice that, a Court is entitled to use the depositions following a guilty plea to extract the relevant facts for the purposes of sentencing unless there are serious and valid objections against that. A relevant case on point and supporting that proposition is the case of The State v. Sabarina Yakal [1988-89] PNGLR 129. In The State v. John Gurave Guba (19th December 2000) N2020, I followed that practice and said this about the practice at pages 3-4 of the judgement:

In practice the courts invariably read the depositions and use them following a guilty plea to determine appropriate sentences. Thus, there should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decide whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender. On this basis, I will use the depositions to arrive at the sentence in this case.

In line with that practice, I will extract the relevant facts for this case from the depositions, which have been admitted into evidence with the consent of the prisoner.

The incident leading to the charge occurred at about 8:00pm on the 12th of September 1995 at Bulolo, Morobe Province. The victim, then a 13-year-old girl was on her way home, when the prisoner and two other male accomplices confronted her. She was grabbed and pulled into the nearby bushes and raped by all of them in turns. The victim tried to call for help and escape but was effectively suppressed by her rapists. After rapping her, the prisoner and his accomplices left the scene and the victim. The victim managed to get home and reported the incident to her relatives who found her bleeding from her vaginal area. The victim's relatives reported the matter to police and took her to the nearest Health Centre.

According to medical evidence on file, the victim was medically examined on the 14th of September 1995. The examination revealed that the victim sustained bruises and lacerations to her vaginal wall, her hymen was torn and was still bleeding from her vagina. A copper coiled wire was also found pushed or inserted into her vagina. Further, there was evidence of penetration and presence of sperm in the vagina.

The prisoner was at large for almost three years from the date of the commission of the offence until he was arrested on the 1st of September 1998. When he was finally arrested, he denied having anything to do with the victim. Then when he was placed under lawful custody awaiting his trial, he escaped and was recaptured, charged and convicted of escape. He was sentence to serve 6 months by the District Court and he has...