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State v Jogioba [2007] PGNC 171; N4085 (26 October 2007)

N4085

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1765 OF 2005

THE STATE

V

DOUGLAS JOGIOBA

Buka: Cannings J
2007: 25, 26 October

SENTENCE

CRIMINAL LAW – sentencing – rape – sentence after trial – two offences, same victim – offences committed by schoolteacher against 16-year-old student – circumstances of aggravation charged and proven – Criminal Code, Section 347(2) – total sentence of 10 years.

A schoolteacher was found guilty after trial of two counts of rape of a 16-year-old student, committed on school premises. Sexual penetration consisted of, on count 1, insertion of the offender's fingers into the victim's vagina and, on count 2, insertion of his fingers and penis into the vagina. The victim was young and naïve and the offender abused his position of trust and authority to induce consent, which was found not to have been free and voluntary. Circumstances of aggravation were charged in each count on the indictment.

Held:

(1) The starting point for sentencing for rape under Section 347(2) of the Criminal Code is 15 years imprisonment.

(2) Mitigating factors are: offender acted alone; no offensive weapon; no torture; no confinement; digital penetration; victim not disabled; no STD; no other indignity; dignity; co-operated with police; no further trouble; first-time offender; effect on offender's family; assault, job loss, District Court proceedings.

(3) Aggravating factors are: large age gap; youthful victim; abuse of position of trust and authority; no provocation; no dignity; did not give himself up; no reconciliation; took the matter to trial; not a youthful offender.

(4) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(5) The following notional sentences were passed: count 1: 6 years; count 2: 10 years; resulting in a total potential sentence of 16 years.

(6) The offences were separated in time by several days, so they ought not be treated as part of a single transaction, which means the sentences should be served cumulatively, ie a total term of 16 years.

(7) The totality principle, however, requires a reduction in the total sentence, apportioned as count 1: 4 years and count 2: 6 years.

(8) Accordingly the court imposed a total head sentence of 10 years. The pre-sentence period in custody was deducted, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Alex Matasol Hagali CR No 928/1997
The State v Douglas Jogioba CR No 1765/2005, 24.10.07
The State v George Tomeme CR No 920/2002, 18.07.07
The State v James Yali (2005) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05
The State v Noutim Mausen CR No 596 of 2004, 24.08.05
The State v Philip Nangoe CR No 392/2006, 24.10.07

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome
CR – Criminal case reference
HIV – Human Immunodeficiency Virus
J – Justice
K – kina
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
STD – sexually transmitted disease
v – versus

SENTENCE

This was a judgment on sentence for rape.

Counsel

L Rangan for the State
P Kaluwin for the offender

26 October, 2007

1. CANNINGS J: Douglas Jogioba, a man aged in his early 30s, has been found guilty, after trial, of two counts of rape of a 16-year-old girl. The offences were committed at Wakunai Primary School in Bougainville, when the offender was a teacher there, in 2004. The victim "L" was one of his students. Both offences were committed after school, at the offender's office. On each occasion he asked L to come and see him in his office.

2. The crime of rape consists of two elements: sexual penetration and lack of consent.

3. On the first occasion, penetration consisted of the offender pushing his fingers into the victim's vagina. He told her he wanted her to know the names of pieces of human anatomy. On the second occasion he penetrated her vagina with his fingers and penis, again on the pretext that he was educating her about the human reproductive system.

4. The victim did not consent to penetration on either occasion. Though there was little or no physical resistance, the offender took advantage of the victim's sexual naivety, abusing his position of trust, authority and power and thereby inducing her to have sex with him. There was no free and voluntary agreement to have sex.

5. Further details of the offences are in the written judgment on verdict in The State v Douglas Jogioba (2007) N4084

ANTECEDENTS

6. The offender has no prior convictions.

ALLOCUTUS

7. 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:

I apologise to the court, the State, the complainant and Elizabeth [the complainant's aunty, who was a State witness]. I stand here as an innocent man. Who will suffer the most if I am committed to custody? I ask the court to take into account that I was assaulted because of this case. I have suffered emotional stress while this case has been going on. I am concerned about my little boy, my son. He has a speech impediment and needs special care and attention. He could be vulnerable if I am committed.

PERSONAL PARTICULARS

8. Douglas Jogioba is 31 years old. He is from Oro Province and is married to a woman from Buka Island. They have one child. The offender obtained a certificate in teaching from Holy Trinity College, Mt Hagen, in 1997. Both parents are alive. He is the first born in a family of eight.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin submitted that neither offence fell into the worst case category of rape. The first offence was a 'technical rape', as it only involved digital penetration. The second offence was also 'technical rape' as there was no violence involved and in fact there was consent even though in law the court concluded that sex was non-consensual. The offender has suffered a lot already. He has lost his job and been assaulted twice. There are no aggravating features of the incidents. There was no violence and the victim has recovered as she is now married, and is pregnant. He is ready to reconcile. He has recently been ordered to pay K5,000.00 compensation by the District Court. Sentences of five years and eight years would be appropriate.

SUBMISSIONS BY THE STATE

10. Mr Rangan contended that much higher sentences were warranted, in view of the serious breach of trust by a schoolteacher: 10 and 15 years. The victim was of a tender age and the impact of the persistent sexual abuse she endured is likely to be long-lasting.

DECISION MAKING PROCESS

11. 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 for equivalent offences?
  
• step 4: what is the head sentence for each offence?
  
• step 5: should the sentences be served concurrently or cumulatively?
  
• step 6: what is the effect of the totality principle?
  
• step 7: should the pre-sentence period in custody be deducted?
  
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 347 (rape) of the Criminal Code states:

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

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

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

13. There was a circumstance of aggravation charged in each count on the indictment: that in committing the offence the offender abused a position of trust, authority and dependency. This is a circumstance of aggravation for rape, prescribed by Section 349A(e) of the Criminal Code. A schoolteacher is in a relationship of trust, authority and dependency in relation to his students per force of Section 6A(2)(d) of the Criminal Code. It was proven at the trial that the offender abused that relationship and the position of trust and authority that he occupied.

14. Therefore the maximum penalty on each count is life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

15. In The State v James Yali (2005) N2989 I expressed the view that the starting points when sentencing for rape should be:

• if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and
  
• if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.
  

16. I follow that approach in this case and use 15 years imprisonment as a starting point on each count on the indictment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence, I will consider recent sentences I have imposed for rape, as shown in the table below.

TABLE 1: RAPE SENTENCES IMPOSED BY CANNINGS J, 2005-2007

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

18. I will focus first on count No 1 and fix a head sentence for it before moving on to count 2, comparing it with count 1, and then fix a head sentence for count 2.

Count 1

19. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The list is based on the considerations I identified in Yali's case. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

20. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.

21. Three sorts of considerations are listed. Numbers 1 to 15 focus on the circumstances of the incident. Numbers 16 to 21 focus on what the offender has done since the incident and how he has conducted himself. Numbers 22 to 26 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the victim? No. The offender was aged 28 at the time of the offence and the victim was 16, a difference of 12 years.
   
2. Is the victim well over the age of 16 years and not an old person? No.
   
3. Was there only one offender? Yes.
   
4. Did the offender not use or threaten to use a weapon? Yes.
   
5. Did the offender not torture or cause grievous bodily harm? Yes.
   
6. Did the offender not confine or restrain the complainant before or after the commission of the offence? Yes.
   
7. Did the offender not abuse a position of trust, authority or dependency? No – serious abuse of position of trust and authority.
   
8. Was the form of penetration other than penile penetration? Yes – digital penetration.
   
9. Did the victim not suffer from a serious physical or mental disability? Yes.
   
10. Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim? Yes.
    
11. Was the offence unplanned, ie was it a spontaneous incident? Neutral.
    
12. Did the victim provoke or aggravate the offence? No.
    
13. Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape? Yes.
    
14. Did the offender treat the victim with dignity immediately after committing the offence? Yes.
    
15. Did the incident have a minimal emotional impact on the victim? Neutral.
    
16. Did the offender give himself up after the incident? No.
    
17. Did the offender cooperate with the police in their investigations? Yes.
    
18. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
19. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
20. Has the offender pleaded guilty? No.
    
21. Has the offender genuinely expressed remorse? Neutral. He did not apologise to the victim.
    
22. Is this his first offence? Yes.
    
23. Can the offender be regarded as a youthful offender? No.
    
24. Will a lengthy jail term have an adverse effect on the offender's family and others dependent on him? Yes.
    
25. Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service? Neutral.
    
26. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – he has been assaulted, lost his job and been subject to District Court proceedings.
    

22. To recap, mitigating factors are:

• No 3 – offender acted alone;
  
• No 4 – no offensive weapon;
  
• No 5 – no torture;
  
• No 6 – no confinement;
  
• No 8 – digital penetration;
  
• No 9 – victim not disabled;
  
• No 10 – no STD;
  
• No 13 – no other indignity;
  
• No 14 – dignity;
  
• No 17 – co-operated with police;
  
• No 19 – no further trouble;
  
• No 22 – first-time offender;
  
• No 24 – effect on offender's family;
  
• No 26 – assault, job loss, District Court proceedings.
  

23. Aggravating factors are:

• No 1 – large age gap;
  
• No 2 – youthful victim;
  
• No 7 – abuse of position of trust and authority;
  
• No 12 – no provocation;
  
• No 16 – did not give himself up;
  
• No 18 – no reconciliation;
  
• No 20 – took the matter to trial;
  
• No 23 – not a youthful offender.
  

24. The other factors (Nos 11, 15, 21, 25) are neutral. Weighing all these factors (14 mitigating factors compared to 8 aggravating factors), I consider that the head sentence should be well below the starting point I earlier identified. I accordingly fix a head sentence of six years imprisonment.

Count 2

25. This is a more serious offence as penile penetration was involved. There was a suggestion of consent, though it was not real consent. I uphold the defence counsel's submission that there was no physical violence involved. I impose a sentence of ten years imprisonment.

Summary

26. The total potential sentence the offender is facing is:

6 years (count 1) + 10 years (count 2 ) = 16 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

27. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

28. In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

29. Though the offences and the offender's modus operandi were similar in character, they were separated in time by several days. Cumulative sentences are warranted, subject to application of the totality principle.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

30. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 16 years would be excessive, given all that he has been through. I accept the defence counsel's submission that he has been punished already to a large extent by the loss of his job. He has been assaulted twice and he has been subject to parallel proceedings in the District Court and recently ordered to pay K5,000.00 compensation.

31. The totality principle requires a reduction in the total sentence, apportioned as count 1: 4 years and count 2: 6 years; a total of 10 years imprisonment.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

32. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

33. Non-custodial sentences for rape are rare. When they are imposed they invariably attract criticism. The community's expectation is that it is inherently a crime of violence or abuse of power (as in this case) and rapists should be imprisoned.

34. If the victim comes forward and says clearly that there has been reconciliation, forgiveness or agreement on compensation (by the victim, not only the relatives) I think the court should seriously consider suspending part or all of a rape sentence. But that is not the case here. I will therefore not suspend any part of the sentence.

SENTENCE

35. Douglas Jogioba, having been convicted of two counts of rape, is sentenced as follows:

Sentenced accordingly.

_________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender