The State v Joseph Taule (2013) N5113

• Jurisdiction: Papua New Guinea
• Judge: Maliku, AJ
• Judgment Date: 25 March 2013
• Citation: (2013) N5113
• Docket Number: CR. N0. 981 OF 2010
• Court: National Court
• Year: 2013
• Judgement Number: N5113

Full Title: CR. N0. 981 OF 2010; The State v Joseph Taule (2013) N5113

National Court: Maliku, AJ

Judgment Delivered: 25 March 2013

N5113

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 981 OF 2010

THE STATE

V

JOSEPH TAULE

Kokopo: Maliku, AJ

2012: 9th, 10th October

2013: 25th March

CRIMINAL LAW - Sexual Penetration – Rape- Section 347 (1) Criminal Code (Sexual Offences and Crime against Children) Act

CRIMINAL LAW- Not guilty plea – Finding of guilty after trial- Prisoner is first offender – There existed a relationship of trust between the prisoner and victim. The prisoner is the father of the victim which aggravates the crime – Very close relationship calls for harsher punitive and deterrent custodial sentence

Cases Cited

Maina –v- The State [1972] PNGLR 49

Goli Golu-v- The State [1979] PNGLR

Avia Aihi-v-The State (NO3) [1982] PNGLR 92

Rex Lialu - v - The State [1990] PNGLR 487

The State –v- Jeffery Wangi (2006) N 3016

The State-v- James Yali (2006) N2989

The State –v- Douglas Jogioba (2007) N4085

The State –v- Fidelis Minja (2010) N 4156

The State –v- Joseph Ureap, CR 292 of 2010

State-v-Penias Mokei (No 2) N2635

Counsel

Mr L. Rangan, for the State

Mr T. Potoura, for the Accused

SENTENCE

25th March, 2013

1. MALIKU, AJ: Joseph Taule was convicted that he on the 26th of March

2005 at Gaulim, Gazelle District in East New Britain Province did sexually penetrated one Lillian Joseph by inserting his penis into her vagina without her consent thereby contravening Section 347(1) of the Criminal Code Act, and there existed at time the prisoner committed the offence

a relationship of trust, authority and dependency.

Allocutus

2. When administering the allocutus, the prisoner said:

1. I say thank you to this Court for the decision it had arrived at.

2. I was first arrested in 2007 and was remanded in custody at Kerevat Police cell.

3. I was released and was referred to the Community Leaders to deal with what I was accused of according to the custom.

4. I was told to pay K3, 000. 00. I paid half of that amount.

5. I was re arrested and charged with the same offence in 2011.

6. I am married and have 9 children. Seven (7) are in school and two are still to go to school.

7. I own a coacoa block at Gaulim which my family relies on, however due to the recent cocoa pod borer we are not able to harvest as we used to.

8. If I am sentenced to jail my family will have difficulty looking after them.

9. I would like to apologise to the victim and to this Court and ask for leniency from the Court.

10. I ask to be allowed to pay some compensation to the victim...

Personal Background/Antecedents:

· The prisoner is Joseph Taule.

· The prisoner was born on the 17th September 1969.

· The prisoner is 44 years of age. At the time he committed the offence he was about 36 years of age.

· The prisoner comes from Malaguna No.3 village, Rabaul District, East New Britain Province.

· The prisoner attended Saint Joseph Primary School

· The prisoner attended Saint Mary (Vuvu) Secondary High School and completed Grade 9.

· The prisoner never had any employment.

· The prisoner is married to a lady named Lucia and has 9 children of which 7 are in school and 2 are still to go to school.

· The prisoner comes from a family of two siblings. He is the 2nd child.

· The prisoner’s mother is a deceased but his father is still alive.

· The prisoner was arrested in 2011 and has been in custody for 1 year and eight months.

· The prisoner is a member of Seventh Day Adventist (SDA) Church.

Mitigating factors:

1. The prisoner had shown remorse in Court.

2. The prisoner has paid some compensation to the victim.

3. The prisoner is a father of 7 children. If the prisoner is sentenced the family will face problems.

4. The prisoner is a first offender of an offence under Section 347 (1) of the Criminal Code even though he was convicted of armed robbery in 1990.

5. There was no pattern of abuses by the prisoner.

6. The prisoner acted alone.

7. There were no physical injuries sustained by the victim.

8. No weapons used to accomplish sexual penetration.

9. The prisoner co operated with the Police when arrested for the offence.

10. The prisoner is now 47 years old, not a youth.

Aggravating factors:

3. As regard to what aggravates the present matter Mr Potoura concedes that

at the time the prisoner committed rape on the victim Lillian Joseph there existed a relationship of trust between the prisoner and the victim. The relationship was of a father and daughter.

4. The victim was pregnant and delivered a baby girl in November of

2005 from being sexually penetrated by the prisoner.

5. The prisoner was 36 years old at the time he committed the offence while

the victim was about 17 years old.

Submission by Defence Counsel – Mr Potoura

6. The prisoner pleaded not guilty but was found guilty and convicted of

sexual penetration of one Lillian Joseph his biological daughter without her consent.

7. Mr Potoura concedes to the fact that rape is very serious crime. Rape

becomes serious a crime when it is committed upon a very close relative.

8. Mr Potoura concedes that at the time the prisoner committed the offence

there existed a relationship of trust between the prisoner and his victim. The relationship was one of a father and daughter.

9. Mr Potoura submits that it is trite law in our criminal law jurisdiction that

in any given case it will depend on its own peculiar facts; thus the Court is to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty - see Rex Lialu - v - The State [1990] PNGLR 487 and Maina –v- The State [1972] PNGLR 49.

10. Mr Potoura also relied on Section 19 of the Criminal Code which he

correctly submits gives wide powers to the Court to exercise its’ discretion in imposing sentences other than custodial sentences.

11. In view of that line Mr Potoura referred to a number of cases which he

submitted sentences that were imposed in those cases varied based on each cases’ peculiar facts.

The State-v- James Yali (2006) N2989

12. In this case the prisoner was convicted of the rape of his de facto wife’s

sister. He was aged 41 and a member of the National Parliament at the time he committed the offence. The victim was 17 years old. The prisoner acted alone. No weapons were used. There was no aggravated physical violence. No physical injuries were sustained by the victim.

13. The prisoner did not surrender but cooperated with the police to a certain

extend. He has caused no trouble since the incident. There was an exchange of a substantial amount of money following the incident but this fell short of being regarded as compensation.

14. There was a high degree of sexual indignity. He has not expressed

remorse. He had one previous conviction, for assault. He is not a youthful offender/prisoner. The offence was committed when he was a member of the National Parliament and Governor of the province. His honour Canings J held:

1. This was a serious case of rape under Section 347 (1) of the Criminal Code.

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

3. The Court should use 10 years imprisonment as a starting point when sentencing an offender of rape under Section 347 (1), then consider all mitigating and aggravating circumstances.

4. In the present case there were more strongly aggravating circumstances than strongly mitigating circumstances and it was proper to sentence the offender above the starting point.

5. The offender was sentenced to 12 years imprisonment.

The State –v- Jeffery Wangi (2006) N 3016

15. In this case the prisoner was convicted of the rape of his 8 year old niece.

He was 36 years old. 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. His honour Canings J held:

1. This is an extremely serious case of rape under Section 347 (1) of the Criminal Code.

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

3. The Court should use 10 years imprisonment as a starting point when sentencing under Section 347(1), and then consider all mitigating and aggravating circumstances. His honour applied the case of The State-v- James Yali (2006) N2989.

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

5. This is a special case in which the offender should have been charged under Section 347 (2) or Section 229 A (2) of the Criminal Code. The Public Prosecutor’s failure to properly...