The State v Marcus Yame (2010) N4131

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 13 August 2010
• Citation: (2010) N4131
• Docket Number: CR NO 1357 OF 2009
• Court: National Court
• Year: 2010
• Judgement Number: N4131

Full Title: CR NO 1357 OF 2009; The State v Marcus Yame (2010) N4131

National Court: Makail J

Judgment Delivered: 13 August 2010

N4131

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1357 OF 2009

BETWEEN

THE STATE

Vs

MARCUS YAME

Vanimo: Makail, J

2010: 10th & 13th August

CRIMINAL LAW - Plea - Two counts of sexual assault - Female victim - Cousin - Fondling of breasts and vagina - Prevalence of offence - Isolated incident - Circumstances of aggravation not pleaded in indictment - Sentences considered within the allowable range of 5 years imprisonment - Custodial sentence appropriate - No pre sentence report - Suspension of sentence inappropriate - Compensation appropriate - 1 year imprisonment imposed for each offence - Concurrent sentences - Compensation of K300.00 and traditional beads ordered - Criminal Code, Ch 262 - Sections 19 & 349 - Criminal Law (Compensation) Act, 1991 - Section 5.

Cases cited:

The State -v- Dibol Petrus Kopal (2004) N2778

The State -v- James Yali (2006) N2989

The State -v- Mark Samuel Haupas (2007) N3186

The State -v- Hillary Laris (2008) N3411

The State -v- Hillary Laris (2009) N3724

The State -v- Ima Esiko (2009) N3607

The State -v- James Gurave Guba (2000) N2020

The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205

Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85

The State -v- Peter Kose Wena [1993] PNGLR 168; (1993) N1184

Counsel:

Mr K Umpake, for the State

Ms A Turi, for Prisoner

SENTENCE

13th August, 2010

1. MAKAIL, J: Marcus Yame, you were indicted by the State with two counts of sexual assault of a female contrary to section 349 of the Criminal Code, Ch 262 and one count of rape of a female contrary to section 347(1) of the Criminal Code, Ch 262. You pleaded guilty to the two counts of sexual assault and not guilty to the one count of rape. Because of your not guilty plea to the charge of rape, the Court could not deal with the three counts at the same time and adjourned the charge of rape to the next sittings of the National Court in Vanimo to be heard by another judge. As for the first two counts, a provisional plea of guilty was entered and upon the Court’s perusal of the deposition handed up by the State, the Court was satisfied that the charges were established and convicted you. The Court proceeded to hear submissions on sentence for each counts.

2. The Court heard on the morning of 22nd August 2009, between 6 o’clock and 7 o’clock, the victim a female by the name of Serlian Abula left her house and went down to the beach to relieve herself. When she finished and was about to return to the house, she met you. You had a “bilum” or string bag. You told her to go and get betel-nuts you hid amongst the coconut trees further up the beach. You showed her the location and gave your bilum and she left. You went to your house and after a brief period, you followed her to the location where you said you have hid the betel-nuts.

3. When you arrived at the location, you saw her and grabbed her. You forcefully pulled her into the nearby bushes and fondled her breasts. Then you put your hands into her shots and pants and fondled her vagina. She managed to escape and reported the incident to her aunt Cecilia Krulio. The incident was subsequently reported to her mother and a complaint was made to the police where you were arrested and charged for these offences.

4. Matters operating in your favour are:

- Early guilty plea;

- First offender;

- Remorseful;

- No serious injury caused to victim; and

- Isolated incident.

5. Matters operating against you are:

- Prevalence of the offence;

- Cousin to the victim;

- Not a youthful offender;

- Some element of trickery involved to lure the victim; and

- Some force used against the victim.

6. I take into account you are 22 years old and come from Yako village. You are married and have three children who are all under 10 years. You were educated up to Grade 3 at Baro Community School. You could not continue with your education because of no school fees. You are a member of the Seventh Day Adventist Church. You offered to pay K1,000.00 as compensation to the victim but it was refused. As a result, no reconciliation took place between you and the victim and her line.

7. Section 349 of the Criminal Code, Ch 262 states:

“(1) A person who, without a person’s consent -

(a) touches with any part of his body, the sexual parts of that other person; or

(b) compels another person to touch, with any part of his body, the sexual parts of the accused person’s own body,

is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2) For the purposes of this section, “sexual parts” include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other with any part of his body or with any object manipulated by the person.

(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years.”

7. The maximum prescribed penalty for this offence is 5 years imprisonment. If there are circumstances of aggravation present, the Court may impose a higher penalty than 5 years imprisonment but not exceeding 10 years: see section 349(4) of the Criminal Code, Ch 262. The circumstances of aggravation must be pleaded in the indictment and proved beyond reasonable doubt as an element of the offence: see The State -v- Dibol Petrus Kopal (2004) N2778 and The State -v- James Yali (2006) N2989. If they are not pleaded in the indictment, they may nonetheless be taken into account as aggravating factors when deciding on a sentence within the allowable range.

8. In your case, the State has not pleaded the circumstances of aggravation in the indictment. Therefore, I will not consider any penalty exceeding 5 years imprisonment. If there is evidence of circumstances of aggravation present, I will take them into account when deciding a penalty within the allowable range of 5 years imprisonment under section 349(1) of the Criminal Code, Ch 262.

9. In The State -v- Mark Samuel Haupas (2007) N3186, Cannings, J imposed a sentence of 3 years with no suspension on the prisoner following his admission to one count of sexual assault on a pregnant woman at Tiauri village in Bialla in the West New Britain Province. The woman was seven months pregnant and was walking down to a creek to fetch water. She was carrying various containers. The prisoner followed her and was talking to her. The woman fetched water and was walking back to her house. He followed her again then held her on her neck and forced her to the ground. He got on top of her and tried to remove her clothes. The victim struggled but the prisoner managed to remove her under garments and touched her sexual parts without her consent before he was disturbed by passer-by and ran away.

10. In The State -v- Hillary Laris (2008) N3411, the prisoner was a highly educated man, having graduated from the University of Papua New Guinea with a Bachelor of Arts Degree and was the sitting member representing the people of Tsitalato in the Bougainville House of Representative. He was indicted with one count of sexual assault of a female contrary to section 349(1) of the Criminal Code, Ch 262. He denied the charge and following a trial, was convicted. Paliau, AJ imposed a sentence of 5 years imprisonment and wholly suspended it subject to various conditions. One of the strong mitigating factors was the payment of substantial compensation comprising of cash money and kind to the victim.

11. This same prisoner was sentenced to a separate imprisonment term in 2009 for the same offence on a different victim. This was by Cannings, J in The State -v- Hillary Laris (2009) N3724 where his Honour imposed 3 years imprisonment and suspended 2 years on conditions leaving a balance of 1 year to serve. This time the prisoner opened the zipper of his trouser and took the hand of a 20 years old female who had come in to fill in a job application form in his office and placed it on his penis. His Honour sentenced him to 3 years imprisonment and suspended 2 years leaving a balance of 1 year to serve.

12. On 23rd April last year, Cannings, J sentenced the prisoner in the case of The State -v- Ima Esiko (2009) N3607 to 3 years imprisonment in hard labour and suspended 2 years, 11 months, 3 weeks and 3 days with various conditions following a trial on one count of sexual assault contrary to section 349(1) of the Criminal Code, Ch 262. In that case, the prisoner, aged 22 at the time tried to sexually arouse the female victim who was a neighbour and well known to him. After a considerable period of undecidedness, she rejected the sexual advances but he persisted, touching her genital area and groin and pulling down her trousers and tearing her underpants before letting her go.

13. In imposing the sentence of 3 years imprisonment and partly suspending it, his Honour found that there were more mitigating factors than aggravating factors present in that case. The mitigating factors were, the prisoner stopped the assault himself, only one offender, no aggravated violence, no physical injury caused to the victim, isolated incident, no special relationship of trust existed...