The State v Tobby Tani (1994) N2063

• Jurisdiction: Papua New Guinea
• Judge: Injia AJ
• Judgment Date: 13 September 1994
• Citation: (1994) N2063
• Court: National Court
• Year: 1994
• Judgement Number: N2063

Full Title: The State v Tobby Tani (1994) N2063

National Court: Injia AJ

Judgment Delivered: 13 September 1994

Injia AJ: The prisoner pleaded guilty to one count of attempted rape. The offence took place on 7 August 1991 at Koroba, Southern Highlands Province. He attempted to rape a young female by the name of Polume Yara. She is the half–sister of the prisoner's wife.

According to the statement of witnesses on file which I accept, on the date mentioned, during the day–time as the prisoner says on allocutus (but night–time according to the witnesses' statements on file), he came home drunk. His wife and 2 children were inside. Also with them was the victim. She is the half–sister of his wife. He knocked on the door but his wife refused to open the door because they had some prior differences. As a result he gained entry through the window after removing the louvre blades. He then proceeded to altercate with his wife over some money. A struggle then ensued between them over a blanket. When he did not succeed, he left his wife and the blanket and went to the verandah outside where the victim was and kicked her and she fell down. Then he locked the door from the outside and dragged the victim to the end of the nearby field. On the way they met the village councilor but she could not talk o him because the accused grabbed her mouth. At the end of the field he told her to have sex with him because his wife left him. The victim refused. He pointed a knife at her and threatened to kill her if she didn't have sex with him. He forced her to lie down and tore her skirt and tried to have sex with her but he couldn't because she was struggling and resistant. Then he committed serious sexual indignities upon her person. She struggled and cried out to one Akope Pianja and Etape Ipako for help. When Etape Ipako arrived at the scene, the prisoner fled.

In the record of Interview (ROI), the prisoner denied attempting to rape the victim. He admitted however that he slapped the victim twice on her face.

The prisoner gave a lengthy unsworn statement in Court. He said he committed the trouble because the victim told the prisoner's wife to go and sleep with another man. He said for the same offence, the Village Court ordered him to pay K60.00 compensation of which he only paid K10.00 and he was looking for the other K50.00 from his brother in Mendi when he was arrested and detained. I accept this statement on allocutus as an admission of the offence and confirmed his conviction.

In the ROI, he denied using a knife to threaten her. So even though he has not denied the use of the knife on allocutus, I will accept the version most favourable to the prisoner to find that he did not use a knife.

On allocutus, the prisoner said when he was in custody, his wife left him and married another man and his second child died. His only other brother who is a teacher at Mendi was killed in a motor vehicle accident. He said he was sorry for committing the offence and he asked me to take those losses into account. And so I will take them into account in his favour, however, their weight is substantially reduced because these are consequences which have visited upon him after the commission of the offence and which he has no control over their happenings.

He says he has been in custody for 2 years waiting for this case. I have checked the court file records and the CIS file and noted that he was arrested for this offence on 20 November 1991. On 12 June 1992, he was released on cash bail. On 5 August 1992, he failed to answer bail and a Bench Warrant was issued for his arrest. He was subsequently arrested and detained for a charge of willful murder but he escaped from custody. On 11 August 1993, he was sentenced to 3 month for escape. On 14 April 1994, the National Court acquitted him on the willful murder charge. All in all, it seems he has been custody for about 1 year 11 months in respect of this charge (or the willful murder charge for which he was acquitted) but excluding the 3 months he served for escape. Therefore, I will deduct this period from any term of years I may impose.

It is conceded by the State that I should take the accused as a first offender despite the conviction for escape, which occurred after the date of commission of this present offence. Therefore I will treat him as a first offender.

As to his reasons for the commission of the offence, he has given the reason that he did it in retaliation or took revenge on her for telling his wife to sleep with another man. In the absence of any proof to the contrary from the State, I will accept his version as to the reason for committing the offence. It is true that he was angered by what this girl did. Any man in his position in the village would have been angry too. But then, is the kind of treatment she got from him appropriate? Or is it proportionate to what she did? I do not think so. I think he had strong desire to sleep with this young girl — his desire being prompted by his state of intoxication. This is clearly shown by the manner in which he locked in his wife and the manner in which he kicked the victim, dragged her to the field, forced her to the ground, tore her skirt and committed further indignities upon her. I do not think there is any good reason for his actions. She did nothing to provoke his feelings towards her. After all, she was a close in–law of his. She was in his house as a guest and he had a duty to protect her. Instead, he betrayed that trust and chose to have sexual intercourse with her by force and when she struggled...