The State v Dibol Petrus Kopal (2004) N2778

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2778
• Date: 21 October 2004
• Court: National Court
• Year: 2004

Full Title: The State v Dibol Petrus Kopal (2004) N2778

National Court: Lay J

Judgment Delivered: 21 October 2004

1 Criminal Law—Criminal Code—amendment—s11—s528—circumstances of aggravation, necessity to charge in indictment—s347—s349A—s386—rape and robbery—sentence—robbery of a person on the street—Interpretation Act (Ch2) s63—s386—robbery—circumstance of aggravation—rape—s347—whether charge under s347 as amended or pre–amendment s347—effect of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002—circumstances of aggravation not charged—whether circumstance of aggravation to be taken into account on sentence.

2 The State v Tom Gaia (1986) N544, Baiza Tadu Avona v The State [1986] PNGLR 148, Tabi Maima v Ben Hambakon–Sma [1971–72] PNGLR 49, The State v Miseal Butemo Jiregari [1984] PNGLR 62, Lawrence Hindemba v The State (1998) SC593, Gimble v The State [1988–89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC642, The State v Sul Kora (2001) N2092, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Paul Mase and Kopa Lore John v The State [1991] PNGLR 88 referred to

Facts:

the Defendant was found guilty of robbery, with arms and threats of violence in company of 7 other men, of three people walking on a bush track, and of rape of the female victim. The offences occurred before the commencement of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 and the indictment presented after its commencement. No circumstances of aggravation specified in the new s349A were charged in the indictment in respect of the charge of rape.

Held

The substantive effect of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 is to amend rather than repeal s347 of the Criminal Code. Therefore s63 of the Interpretation Act (Ch2) had no application and the indictment was presented under s347 as amended and not the former form of s347 preserved by s63 of the Interpretation Act (Ch2). Although circumstances of aggravation specified in s349A were proven, they were not charged in the indictment. The maximum sentence was therefore 15 years pursuant to s347(1). The proven facts of circumstances of aggravation could be taken into account in assessing the appropriate sentence within the range for the offence charged but not so as to increase the maximum sentence to life imprisonment pursuant to s347(2). The appropriate sentence for the rape was 14 years and for the robbery of a person on the street with aggravating factors 8 years. Applying the totality principle total sentence was reduced to 16 years.

Decision On Sentence

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Lay J: After a trial the Defendant has been convicted of one count of robbery whilst armed and in company of 7 other people and with threats of violence, and one count of rape, with no circumstances of aggravation charged in the indictment.

The full facts are set in the ruling on the voir dire on the admissibility of the Record of Interview (which was not admitted into evidence) and the decision on verdict delivered on 11 October 2004. For the purposes of sentence it is sufficient to note that the Defendant was in company of 7 other men, he was armed with a gun and the others were armed with bush knives. Before ambushing the victims the accused gained their trust by assuring them there was no one else around. They knew him and were aware that he had been a reserve constable. The Defendant appeared to be the leader of the gang and the one giving directions and organising the others of the gang. He gave orders for the victim and her two male companions to drop their cargo valued at about K470 and he took the victim into the bush, ordered her to lie down and removed her laplap. He threatened the two male companions with his gun so that they ran off & he stood guard while six of the others took turns...