The State v Tobby Tani (1994) N2063

• Jurisdiction: Papua New Guinea
• Citation: (1994) N2063
• Date: 13 September 1994
• Court: National Court
• Year: 1994

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

National Court: Injia AJ

Judgment Delivered: 13 September 1994

1 Criminal Law—Sentence—Attempted rape with aggravating factors—Appropriate sentence—4 years imprisonment—Punishment of offence—Compensation order under the Criminal Law (Compensation) Act 1991—Appropriateness of compensation order in serious offences such as attempted rape, rape, etc discussed—Criminal Code (Ch262), s348, Criminal Law (Compensation) Act 1991, s2(2), s3(1), s3(2), s4(1), s5(1), s5(3)(b), s6(b), Sch1

2 The State v Peter Kose Wena (1993] PNGLR 168 and John Aubuku v The State (1987] PNGLR 267 referred to

Held:

(1) A compensation order may not be appropriate for serious offences where the prescribed maximum penalty for the offence is over six (6) months imprisonment and the gaol sentence considered by the Court to be appropriate in the particular case is a term in excess of (6) months imprisonment.

(2) In this case, where the offence of attempted rape carried a maximum of 14 years imprisonment and where actual violence was used on the victim who was a close relative of the prisoner, the appropriate sentence being one of four (4) years, a compensation order of K100.00 in default one (1) month imprisonment was inappropriate as it would have little or no impact on the overall punishment.

(Editorial Note: Although judgment in this case was handed down in 1994 at Tari, Southern Highlands Province by Injia AJ (as he then was), an edited version of it is now being published, due to ongoing discussions about the application of the Criminal Law (Compensation) Act 1991.)

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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...