The State v Robert Yochie (2010) N4113

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 March 2010
• Citation: (2010) N4113
• Docket Number: CR NO 996 0F 2007
• Court: National Court
• Year: 2010
• Judgement Number: N4113

Full Title: CR NO 996 0F 2007; The State v Robert Yochie (2010) N4113

National Court: Cannings J

Judgment Delivered: 18 March 2010

N4113

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 996 0F 2007

THE STATE

V

ROBERT YOCHIE

Madang: Cannings J

2010: 16 February, 11, 18 March

SENTENCE

CRIMINAL LAW – sentence – rape – Criminal Code, Sections 347(1) and (2) – guilty plea – circumstances of aggravation – breach of trust.

The offender pleaded guilty to the rape of his 17-year-old daughter. The breach of trust was charged in the indictment. There was no reconciliation or forgiveness.

Held:

(1) The maximum penalty is life imprisonment.

(2) The starting point is 15 years imprisonment.

(3) The guilty plea is the main mitigating factor.

(4) There were some major aggravating factors, especially the abuse of trust between a father and his daughter.

(5) A sentence of 14 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

James Yali v The State SCRA No 3/2006, 18.02.10

Saperus Yalibakut v The State (2006) SC890

The State v Douglas Jogioba CR No 1765/2005, 26.10.07

The State v George Tomeme CR No 920/2002, 24.08.07

The State v James Yali (2006) N2989

The State v Jeffery Wangi (2006) N3016

The State v Joe Sime CR No 1078/2004, 25.08.06

The State v Philip Kila CR No 777/06, 15.07.09

The State v Philip Nangoe CR No 392/2006, 24.10.07

SENTENCE

This was a judgment on sentence for rape.

Counsel

A Kupmain, for the State

J Kolkia, for the offender

18 March, 2010

1. CANNINGS J: This is a decision on sentence for a 42-year-old married man, Robert Yochie, who pleaded guilty to the rape of his 17-year-old biological daughter. He has been convicted of one count of rape committed in circumstances of aggravation (abuse of trust, authority and dependency) under Sections 347(1) and (2) of the Criminal Code.

2. The offence was committed at 5.00 am on 4 February 2007 at the offender’s cousin’s residence near Madang town. The offender and the victim were staying there for a short time, on their way back from the offender’s village in East Sepik Province to Milne Bay Province, where they had lived for many years. The offender’s wife – the victim’s mother – is from Milne Bay and the offender had a regular job there. The victim had been asleep and got up to go to the toilet a short distance away from the back of the house. She had finished urinating and was in the process of pulling up her shorts when her father approached her from behind, grabbed her, pulled off her clothes and penetrated her vagina with his penis. She did not consent.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I am in fear of my God and say sorry to Him, to the Court, my daughter, my wife and my family. Though I was granted bail my guarantors were unable to assist me and I have remained in custody, in remand, for a long time and I have not had the chance to get out and solve this problem. I am concerned about the welfare of my wife and children. Please consider me for transfer to Boram.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). However, none are apparent.

PRE-SENTENCE REPORT

6. Robert Yochie comes from Tangori village in the Kubalia area of East Sepik. He and his wife have eight children, the victim being the eldest. The offender is a plumber by trade and had regular paid employment for 20 years prior to committing the offence. He claims to be a faithful member of the Seventh-Day Adventist Church and does not smoke, drink or chew. When he is released from custody he wants to go back to his family in Milne Bay and reconcile with them, especially with the victim. No members of his family were interviewed for the purposes of the report. It appears that his wife and children have remained living in Milne Bay Province. The report concludes that he is not a danger ‘to anyone but to himself’ and that he is suitable for probation.

SUBMISSIONS BY THE DEFENCE

7. Mr Kolkia highlighted the guilty plea, which is very significant in this case as the offender has saved his daughter the trauma and embarrassment of giving evidence in court. Also, he is a first-time offender, he has expressed remorse and he did not pass on any sexually transmitted disease to the victim or make her pregnant. Compared to the recent Madang case of The State v Philip Kila CR No 722/2006, 15.07.09, this case was not as serious, he submitted. In Kila a police officer was found guilty after a trial of the rape of a young woman. He committed the offence at night, while searching the victim’s family’s house in the course of a police raid of a village. He threatened her with the police-issued firearm that he was carrying, then sexually penetrated her without consent. The sentence was 17 years imprisonment. Mr Kolkia submitted that the sentence in the present case should be 10 years and because of the lengthy period that the offender has already spent in custody and the recommendation for probation, the balance of the sentence should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Kupmain strongly opposed the defence counsel’s submissions, arguing that this was a very serious case of rape, warranting a sentence of 15 to 17 years. He submitted that the recommendation for probation was entirely unwarranted and none of the sentence should be suspended.

DECISION MAKING PROCESS

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

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Section 347 (rape) of the Criminal Code states:

(1) A person who sexually penetrates a person without [her or] his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

11. The abuse of trust that occurred in this case was a circumstance of aggravation that was charged in the indictment. Therefore the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. In The State v James Yali (2006) N2989 I expressed the view that the starting points when sentencing for rape should be:

· if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and

· if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.

13. I follow that approach in this case and use 15 years imprisonment as a starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. Before I fix a sentence I will consider other sentences I have imposed for rape in cases that for various reasons have similarities with the present case.

TABLE 1: OTHER RAPE SENTENCES, 2006-2009

No Case Details Sentence

1 The State v James Trial – offender raped 17-year-old 12 years
Yali (2006) sister of his de facto wife – conviction
N2989, Madang under Section 347(1).

2 The State v Jeffery Guilty plea – victim an 8-year-old girl 14 years
Wangi (2006) – no circumstances of aggravation
N3016, Bialla charged in indictment – conviction
under Section 347(1).

3 The State v Joe Guilty plea – offender raped his niece, 10 years
Sime CR No aged 16 – threatened her with a small
1078/2004, axe – genuine remorse – strong
25.08.06, Buka mitigating factor was the conditions of
detention at Buka police lock-up –
conviction under Section 347(2).

4 The State v George Trial – shortly before meeting the 12 years
Tomeme CR No offender, the victim, a young woman,
920/2002, had been raped by six other men –
24.08.07, Kimbe offender led her away on pretext that
he was saving her, then raped her
himself – conviction under Section
347(1).

5 The State v Philip Trial – offender raped young mentally 15 years
Nangoe CR No retarded woman, near a public road –
392/2006, offender went after her – conviction
24.10.07, Buka under Section 347(2).

6 The State v Trial – schoolteacher raped 16-year-old 10 years
Douglas Jogioba student – two counts: first, digital
CR No 1765/2005, penetration of vagina; second, penile
26.10.07, Buka penetration of vagina – conviction
under Section 347(2).

7 The State v Philip Trial – police officer raped victim in 17 years
Kila CR No course of police duties, threats of
777/06, 15.07.09, violence – conviction under Section
Madang 347(2).

STEP 4: WHAT IS THE HEAD SENTENCE?

15. I refer to the list of sentencing considerations set out in The State v James Yali (2006) N2989, which were recently reviewed by the Supreme...