The State v Pascal Maya Omi (2005) N2808

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

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

National Court: Cannings J

Judgment Delivered: 22 March 2005

1 Criminal law—indictable offence—Criminal Code, Division V.7, Sexual Offences and Abduction—s348, 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.

2 Doreen Liprin v The State (2001) PNGLR 6, The State v Eric Emmanuel Vele [2002] PNGLR 74, L Rangan for the State, L Siminji for the accused

3

Sentence

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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 s348 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...