The State v Saperus Yalibakut (2005) N2957

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 September 2005
• Citation: (2005) N2957
• Docket Number: CR No 1476 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2957

Full Title: CR No 1476 of 2005; The State v Saperus Yalibakut (2005) N2957

National Court: Kandakasi J

Judgment Delivered: 23 and 26 September 2005

N2957

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1476 of 2005

THE STATE

-V-

SAPERUS YALIBAKUT

WEWAK: KANDAKASI, J.

2005: 13th and 26th September

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – No physical injuries - Facts disclose case of rape – Offence committed in breach of trust as uncle – Guilty plea – First time offender – Aggravating factors outweighing those in mitigation – 17 years imposed - Sections 229A of Criminal Code.

Cases cited:

The State v. Nason Samban (25/03/04) N2598.

The State v. Peter Yawoma N2032.

The State v. Attiock Ishmel, (12/10/01) N2294.

Sakarowa Koe v The State (01/04/04) SC739.

The State v. Jason Dongoia (13/12/00) N2038.

The State v. Eddie Trosty (10/09/04) N2681.

The State v. Peter Lare (20/05/04) N2557.

The State v Kemai Lumou (23/09/04) N2684.

The State v. Thomas Angup (21/04/05) N2830.

The State v. John Ritsi Kutetoa (22/03/05) N2814.

The State v. Eki Kondi & Ors. (No 2) (25/03/04) N2543.

The State v. Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569.

Ian Napoleon Setep v The State (18/05/01) SC666.

The State v. Joseph Minjihau (24/05/02) N2243.

James Mora Meaoa v. The State [1996] PNGLR 280.

The State v. Eddie Peter (No 2) (12/10/01) N2297.

The State v. Kenneth Penias [1994] PNGLR 48.

Seo Ross v. The State (30/04/99) SC605.

Counsels:

A. Kupmain the State.

J. Mesa for the Prisoner.

DECISION ON SENTENCE

23rd September 2004

KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a girl under the age of 16 years, contrary to s.229A of the Criminal Code.

The facts to which you pleaded guilty are these, on Saturday 16th April 2005, at Kuminimbus village, Maprik, East Sepik Province, around 11:00am, you met the victim (named) who was returning from a visit to her aunt at the Amaku river. You asked the victim to go to your house, who initially refused but you eventually managed to persuade her to do so and she did.

When at your house you asked her to get into the house and into your bedroom. Again, she initially refused but you managed to persuade her to get into your house and then into your bedroom. Once in the bedroom, you caused the victim to lie down on your bed after you removed her clothes forcefully and slapped her with your hand when she refused to comply. Thereafter, you proceeded to have sexual intercourse with her. As you were in the process of having sexual intercourse with the victim, you heard your wife coming, so you quickly put on your trousers and went and sat at the doorway after having directed the victim to pretend to attend to sorting out your vanilla beans. Your wife however, managed to find your underwear sticking out of your pocket which was wet with sperm. Your wife proceeded to enquire of the victim as to what you did with her and she told her that you raped her.

Your wife eventually reported you to the authorities. This led to your arrest and being charged with the offence of sexual penetration. These facts and other evidence on file, disclose a possible case of rape of the victim. However, these facts were omitted and were not included in your arraignment and charge for the purposes of securing, I believe your guilty plea to the charge presented against you.

I had a similar situation in a number of cases before. A more recent one was in the case of The State v. Nason Samban.

1 (25/03/04) N2598.

1 There, I turned to my judgment in The State v. Peter Yawoma,

2 (19/01/01) N2032.

2 where I said:

“…[W]here the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed.”

In The State v. Attiock Ishmel,

3 (12/10/01) N2294.

3 I provided the reasons for taking that view as follows:

“No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation, if sentences prescribed under a lesser offence were further reduced.”

The Supreme Court endorsed these views and approach in its recent judgment in the case of Sakarowa Koe v The State

4 (01/04/04) SC739.

4 there the Supreme Court said:

“In any case, where an indictment charging an accused with a less serious offence is present even though the facts support a more serious charge, we agree with Kandakasi J in The State v. Attiock Ishmel,… that:

‘No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, …there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation if sentences prescribed under a lesser offence were further reduced.’

We add however, that in some cases, there may be very good mitigating factors. In such cases, the Court should be free, to further reduce the sentence only as an exception rather than the norm.”

But as I said in The State v. Jason Dongoia:

5 (13/12/00) N2038.

5

“… [T]he principle and factors generally governing sentencing such as prevalence of the offence, society’s response to that, whether the offender is a first time offender, whether it is a guilty plea and the particular circumstances in which the crime was committed are all relevant and do apply.

Of course, the purpose of sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration. Taking such factors into account will be in line with the intent of s. 19 of the Code.

A sentence lower than what is prescribed as the maximum may be given to an offender who pleads guilty, has no prior convictions, and commits the offence in circumstances, which are not serious…

Then certainly the community’s reaction to the crime should have an influence on the kind of punishment to be given. If the community in whatever form is calling for tougher penalties because of the prevalence of the crime and its impact on society, the case may warrant an higher penalty, that is up to the maximum prescribe by law.”

Since the judgments in The State v. Peter Yawoma

6 Opt Cit. note 2

6 and The State v. Attiock Ishmel,

7 Opt Cit. note 3.

7 Parliament changed the law. This change significantly increased the penalty to 25 years imprisonment from a very low of 5 years. In The State v. Eddie Trosty,

8 (10/09/04) N2681.

8 I imposed a sentence of 6 years on a guilty plea. The prisoner was 6 years older than the victim who was his girlfriend. There were no aggravating factors.

Subsequently, in The State v. Peter Lare,

9 (20/05/04) N2557.

9 which was referred to by your lawyer in his submission, I imposed a sentence of 20 years. There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference and the prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Also, the prisoner infected the victim with a sexually transmitted disease.

Having regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case, I imposed a sentence of 17 years in the later case of The State v Kemai Lumou.

10 (23/09/04) N2684.

10 There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

Citing my judgment in The State v. Peter Lare,

11 Opt Cit. note 9.

11 Mr. Justice Lay imposed a sentence of 20 years for one out of a number of sex charges in the case of The State v. Thomas Angup.

12 (21/04/05) N2830.

12 From the head note to the case, the...