The State v Jeffery Wangi (2006) N3016

• Jurisdiction: Papua New Guinea
• Date: 15 March 2006
• Citation: (2006) N3016
• Docket Number: Cr No 1606 0f 2005
• Court: National Court
• Year: 2006

Full Title: Cr No 1606 0f 2005; The State v Jeffery Wangi (2006) N3016

National Court: Cannings J

Judgment Delivered: 15 March 2006

1 Criminal law—sentencing principles for rape—Criminal Code, Division V.7, sexual offences and abduction—s347, rape—sentence after plea of guilty—distinction between rape simpliciter, s347(1), and rape in circumstances of aggravation, s347(2)—rape by 36-year-old man of 8-year old girl, his niece—circumstances of aggravation not pleaded in indictment—sentencing of an offender under s347(1)—maximum penalty of 15 years imprisonment—starting point—identification of relevant considerations—sentence of 14 years.

2 The State v Dibol Petrus Kopal (2004) N2778, The State v James Yali (2006) N2989 referred to

The offender was convicted of the rape of his 8-year-old niece. He was aged 36. He acted alone. No weapons were used. There was a violation of trust. The offender did not surrender but cooperated with the police. No circumstances of aggravation were pleaded in the indictment. He pleaded guilty.

Held:

This is an extremely serious case of rape under s347(1) of the Criminal Code.

As no circumstances of aggravation are charged in the indictment the maximum penalty to which the offender could be sentenced is 15 years imprisonment.

The court should use 10 years imprisonment as a starting point when sentencing under s347(1), then consider all mitigating and aggravating circumstances. (The State v James Yali (2006) N2989 applied.)

In the present case there are more strongly aggravating circumstances than strongly mitigating circumstances and it is proper to sentence the offender well above the starting point.

This is a special case in which the offender should have been charged under s347(2) or s229A(2) of the Criminal Code. The Public Prosecutor's failure to properly charge means that the maximum penalty to which the offender is subject is considerably less than it should have been. Therefore the extent of the benefit given on account of an early guilty plea is considerably reduced.

The offender is sentenced to 14 years imprisonment.

Abbreviations

The following abbreviations appear in the judgment:

AIDS—Acquired Immune Deficiency Syndrome

HIV—Human Immunodeficiency Virus

J—Justice

N—National Court judgment

Sentence

This was a judgment on sentence for rape.

_______________________________

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of rape.

BACKGROUND

Incident

The incident giving rise to the charge took place at Soi in the Bialla District of West New Britain in 2005.

Indictment

On 13 February 2006 the accused was brought before the National Court at Kimbe and faced the following indictment:

Jeffery Wangi of Alisu, Yangoru, East Sepik Province is charged that he on 26 July 2005 at Soi in Papua New Guinea sexually penetrated [the complainant] without her consent.

The indictment was presented under s347(1) (the offence of rape) of the Criminal Code.

The victim of the incident is referred to in this judgment as "the complainant", consistent with s1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 26 July 2005 the accused was at Soi Oil Palm Settlement. He went into the bush to look for worms for fishing. He met the complainant there. She was eight years old at the time. She was with her six year old sister. They were in the garden. The accused told the complainant's sister to go to the other side of the garden to look for worms while he remained with the complainant. As soon as she left he grabbed the complainant, removed her shorts, put her on the ground, then sexually penetrated her by introducing his penis into her vagina and ejaculating. He did all that without the complainant's 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 him. He is now referred to as the prisoner.

ANTECEDENTS

Mr Popeu for the State notified the court that the prisoner has no prior convictions. The pre-sentence report suggested that, in fact, he does have a prior conviction for a similar offence. However, that was not verified and I have disregarded that claim for sentencing purposes.

ALLOCUTUS

I administered the allocutus, ie the prisoner 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 have a block. I have a wife and seven children. I did not plan to do this thing. I had gone to the block to look for worms. By accident I fell into this temptation. I say sorry to the community and to the public and to the court. I ask for mercy and to be considered for probation.

OTHER MATTERS OF FACT

I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything that has not been raised that may be favourable to the offender that is relevant to the sentence. I have done that as he has pleaded guilty. However, there is nothing favourable to him in the depositions.

RELEVANT LAW

S347 (definition of rape) of the Criminal Code states:

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

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

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

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka submitted that as no circumstances of aggravation were pleaded in the indictment the maximum penalty was 15 years imprisonment. He highlighted that...