The State v Alex Matasol Hagali (2006) N4491

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 29 September 2006
• Court: National Court
• Citation: (2006) N4491
• Docket Number: CR NO 928 of 1997
• Year: 2006
• Judgement Number: N4491

Full Title: CR NO 928 of 1997; The State v Alex Matasol Hagali (2006) N4491

National Court: Cannings J

Judgment Delivered: 29 September 2006

N4491

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 928 0F 1997

THE STATE

V

ALEX MATASOL HAGALI

Buka: Cannings J

2006: 28, 29 September

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.7, sexual offences and abduction – Section 347, rape – sentence after trial – conviction on two counts of rape – no circumstances of aggravation charged – maximum penalty of 15 years for each conviction – starting point – identification of relevant considerations – sentence fixed for each offence – whether concurrent or cumulative – totality principle.

A 27 year old man was convicted on two counts of rape of a young woman. The offences were committed more than nine years prior to the time of the trial, when the offender was aged 17 and the victim 19. The offender threatened the victim with a bush-knife and pulled her into the bushes before sexually penetrating her without her consent, on two separate occasions, within a short space of time. There was no aggravated physical violence and the offender was not convicted of rape in circumstances of aggravation. This was the judgment on sentence.

Held:

(1) The offender, having been convicted of two offences, must in the first instance be given a notional sentence for each offence.

(2) For count 1, rape under Section 347(1) of the Criminal Code, the maximum sentence is 15 years imprisonment; and the starting point for sentencing purposes is 10 years imprisonment. A sentence of 6 years was imposed for count 1.

(3) For count 2, rape under Section 347(1) of the Criminal Code, the circumstances of the offence and the mitigating and aggravating factors are practically the same as for count 1. A sentence of 6 years was imposed for count 2; making the total potential sentence 12 years imprisonment.

(4) Applying the “one transaction rule”, it is evident that both offences were committed in the course of a single transaction, and therefore sentences in respect of the offences will be concurrent; making the total actual head sentence 6 years imprisonment.

(5) The pre-sentence period in custody of nine months was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Daniel Kemi Mebil v The State (2004) SC749

John Aubuku v The State [1987] PNGLR 267

The State v Alex Matasol Hagali CR No 928 of 1997

The State v Alphonse Apou Dioro (2003) N2431

The State v Damien Mangawi (2003) N2419

The State v Dibol Petrus Kopal (2004) N2778

The State v Donald Angavia & 2 Others (2004) N2590

The State v Donald Poni (2004) N2663

The State v Eki Kondi and 4 Others (No 2) (2004) N2543

The State v Ezra Hiviki (No 2) (2004) N2548

The State v Flotyme Sina (No 2) (2004) N2541

The State v Gary Sasoropa and 2 Others (No 2) (2004) N2569

The State v Henry Nandiro (No 2) (2004) N2668

The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919

The State v James Yali (2005) N2989

The State v Jeffery Wangi (2006) N3016

The State v Joe Sime CR No 1078 of 2004, 25.08.06

The State v Julius Ombi (No 2) (2004) N2552

The State v Junior Apen Sibu (No 2) (2004) N2567

The State v Komai Balal (No 2) (2005) N2821

The State v Kunija Osake (2003) N2380

The State v Luke Sitban (No 2) (2004) N2566

The State v Michael Waluka Lala, CR No 215 of 2004, 08.06.05, unreported

The State v Moses Jafisa Winga (2005) N2952

The State v Mufe Gabing (2005) N2943

The State v Nick Teptep (2004) N2612

The State v Noutim Mausen, CR No 596 of 2004, 24.08.05, unreported

The State v Pais Steven Sow (No 2) (2004) N2588

The State v Peter Huli Hahe Haite (2003) N2383

The State v Seyo Aroko (2005) N2822

The State v Thomas Madi (2004) N2625

SENTENCE

This was a judgment on sentence for rape, after trial.

Counsel

R Luman, for the State

P Kaluwin, for the accused

1. CANNINGS J: This is a decision on the sentence for a man convicted after trial of two counts of rape committed against the same woman. The offences were committed at Matsungan Island, off Buka Island, Bougainville, in November 1996, more than nine years before the time of the trial, in August 2006. At the time of the offences the offender was aged 17 and the victim was aged 19. In the judgment on verdict I described the offender as being 19 at the time of the offence.

2. Both counsel have said in the course of the sentencing hearing that he was, in fact, only 17. I do not think that was a material consideration in deciding that he was guilty of the offences; so it makes no difference to the verdict. However, it is a relevant factor for the purposes of sentencing and I emphasise that I am sentencing an offender who is now aged 27 and who was aged 17 at the time he committed the offences. The offender threatened the victim with a bush-knife and pulled her into the bushes before sexually penetrating her without her consent, on two separate occasions, within a short space of time. There was no aggravated physical violence and the offender was not convicted of rape in circumstances of aggravation. Further details of the circumstances in which the offences were committed are set out in the judgment on verdict (The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06).

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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:

Firstly, I apologise to this Court for what I have done. Secondly, I apologise to the victim for what I did to her. I was young when I committed these offences and I have not done anything bad since then and not caused any more trouble. Lastly, please have mercy on me and give me probation or a good behaviour bond.

PERSONAL PARTICULARS

5. The offender, Alex Matasol Hagali, is aged 27 and single. He is the sixth born in a family of 12. He has five brothers and six sisters. He is a member of the United Church. He was educated to grade 6, which he completed in 1994, two years before committing the offences. He has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the following mitigating factors: the offender has expressed remorse; he did not inflict any physical injury on the victim; the rape is not in the ‘worst case’ category; they were crimes of opportunity, not of design; he was the sole-offender; the victim was actually older than he and he was very young at the time and will live with the stigma of committing these crimes and pay for the folly of his youth for the rest of his life; he has not committed any more offences, suggesting that he has learned his lessons; the victim is now married, living in Buin, so life has moved on for her. Marriage is a signpost on the road to recovery for a rape victim, he submitted. Mr Kaluwin submitted that a sentence of four to six years would be appropriate for each offence; the sentences should be served concurrently; and the court should consider suspending the remaining part of the sentence due to the offender having already spent a long time in custody (nine months).

SUBMISSIONS BY THE STATE

7. Mr Luman, for the State, conceded that the offender’s young age at the time of commission of the offences is a mitigating factor, together with the fact that both the offender and the victim were teenagers. However, a serious aggravating factor is that there has been no reconciliation or genuine apology. The statements made in allocutus have come very late and the victim was not present in court to hear them. A sentence of six to ten years would be appropriate for each offence. Mr Luman conceded that concurrent sentences are appropriate. However, he disagreed with the idea of a suspended sentence as the victim now lives in Buin, at the opposite end of Bougainville to where the offender would reside. It would be impracticable for the court to monitor compliance with the conditions of a suspended sentence.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty for each offence?

· step 2: what is a proper starting point for each offence?

· step 3: what sentences have been imposed in other cases?

· step 4: what should the head sentence be for each offence?

· step 5: should the sentences be served concurrently or cumulatively and does the totality principle alter the total head sentence?

· Step 6: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 7: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 347 (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.

(2) ...