PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2007 >> [2007] PGNC 225

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

State v Tomeme [2007] PGNC 225; N5038 (24 August 2007)

N5038

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 920 OF 2002


THE STATE


V


GEORGE TOMEME


Kimbe: Cannings J
2007: 18, 19 July, 23, 24 August


CRIMINAL LAW – sentencing – rape – sentence after trial – victim, a young woman – Criminal Code, Section 347(1) – sentence of 12 years


A man was found guilty after a trial of rape of a young woman. She had been raped by a group of other young men when the offender arrived on the scene and led her away, apparently to safety, only to rape her himself. This is the judgment on sentence.


Held:


(1) The starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.

(2) Mitigating factors were: small age gap between offender and victim; victim not in specially vulnerable category; offender acted alone; no torture; no confinement; victim not a family or clan member; victim not a disabled person; no STD; spontaneous incident; no other indignity; co-operated with police; no further trouble; first offender.

(3) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended because of a good pre-sentence report.

Cases cited


The following cases are cited in the judgment:


James Meaoa v The State [1996] PNGLR 280
The State v Alex Matasol Hagali CR No 928/1997
The State v George Tomeme CR No 920/2002, 18.07.07
The State v James Yali (2005) N2989
The State v Jeffery Toapas (No 2) CR No 24 of 2004, 25.08.06
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05
The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05


SENTENCE


This was a judgment on sentence for rape.


Counsel


F Popeu, for the State
B Tanewan, for the offender


24th August, 2007


1. CANNINGS J: This is a decision on sentence for a man convicted after trial of the rape of a young woman. The offender, George Tomeme, committed the offence around 6.00 pm on Monday 17 September 2001 at Gigo Beach in Kimbe. Shortly before meeting the offender the victim had been raped by six other men. The offender led her away from them on the pretext that he was saving her, then proceeded to rape her himself. Further details of the offence are in the written judgment on verdict in The State v George Tomeme CR No 920/2002, 18.07.07.


ANTECEDENTS


2. The offender has no prior convictions.


ALLOCUTUS


3. The offender said:


I apologise for what I have done. I have two children to look after. My wife left me when this trouble happened and they are now with their grandparents. I ask for mercy and probation.


PRE-SENTENCE REPORT


4. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.


GEORGE TOMEME: 34-year-old male.


Residence: Bola village, Talasea area, WNB; previously living at Laleki, Kimbe.
Family background: Mixed ENB/WNB parentage – mother alive (frail); father deceased – offender is sixth born in family of eight – his mother is looking after his two children.
Marital status: married but separated.
Education: grade 6, Kimbe Primary, 1987.
Employment: only a brief stint at Liamo Resort, Kimbe in 2002 – resigned due to low pay.
Health: OK.
Financial status: relies on income from sale of copra and cocoa.
Plans: go back to village, build a new house and take care of his children.
Victim's attitude: would prefer to see offender not go to jail, so that he can afford some compensation for her.
Offender's family's attitude: supportive.
Attitude of community: comes from a peaceful family – offender well regarded in the village.
Assessment: not a threat to community.
Recommendation: suitable for probation.


SUBMISSIONS BY DEFENCE COUNSEL


5. Mr Tanewan highlighted the offender's prior good character and the fact that he is a first offender. The pre-sentence report shows that he is not considered a threat to the community and justifies a partly-suspended sentence. The offence was committed out of character.


SUBMISSIONS BY THE STATE


6. Mr Popeu, for the State, submitted that a sentence of 12 years should be imposed, in light of the fact that some violence was used; the victim had just been through a terrible ordeal and he exploited the opportunity provided by the circumstances.


DECISION MAKING PROCESS


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


STEP 1: WHAT IS THE MAXIMUM PENALTY?


8. The indictment was presented under Section 347(1) (rape) of the Criminal Code, which 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.

9. The existing Section 347 commenced operation on 12 April 2003. It made the offence of rape gender neutral and introduced a new sentencing regime. Under the old Section 347, there was a single maximum penalty of life imprisonment. In the present case the date of the offence (17 September 2002) was before the date of commencement of the existing Section 347 (12 April 2003). The offender was correctly charged under the new law. Now he must be sentenced according to the lesser of the two maximum penalties available under the new law, which is 15 years or life imprisonment, depending on whether circumstances of aggravation were charged in the indictment, and the old law, which is life imprisonment (The State v John Ritsi Kutetoa (2005) N2814 and The State v Jeffery Toapas CR No 24 of 2004, 25.08.06; and Criminal Code, Section 11(2)). As no circumstances of aggravation were charged in the indictment, he faces a maximum penalty of 15 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.


STEP 2: WHAT IS A PROPER STARTING POINT?


10. In The State v James Yali (2005) N2989 I held that the proper starting point for sentencing under Section 347(1) is 10 years. I follow that approach in this case.


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


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


RAPE SENTENCES, 2005-2007


No
Case
Details
Sentence
1
The State v Michael Waluka Lala CR No 215 of 2004, 08.06.05, Kimbe
Guilty plea – rape constituted by forcing the victim to suck his penis – no aggravated violence – no prior convictions – remorse – conviction under Section 347(1).
4 years
2
The State v Noutim Mausen (No 2) CR No 596 of 2004, 24.08.05, Kimbe
Trial – offender, 20-years-old, convicted of rape of middle-aged woman – threatened to use bush knife – no circumstances of aggravation charged – conviction under Section 347(1).
10 years
3
The State v James Yali (2006) N2989, Madang
Trial – offender raped 17-year old sister of his de facto wife – no circumstances of aggravation charged – conviction under Section 347(1).
12 years
4
The State v Jeffery Wangi (2006) N3016, Bialla
Guilty plea – victim an 8-year-old girl – no circumstances of aggravation charged in indictment – conviction under Section 347(1).
14 years
5
The State v Joe Sime CR No 1078/2004, 25.08.06,
Buka
Guilty plea – offender raped his niece, aged 16 – threatened her with a small axe – genuine remorse – strong mitigating factor was the conditions of detention at Buka police lock-up – conviction under Section 347(2).
10 years
6
The State v Alex Matasol Hagali
CR No 928/1997, 29.09.06,
Buka
Trial – offender threatened victim with bush-knife, pulled her into bushes, sexually penetrated her without her consent, on two separate occasions, within short space of time – no aggravated physical violence – offender aged 17 at time of offence; victim aged 19 – two convictions under Section 347(1) – concurrent sentences.
6 years

STEP 4: WHAT IS THE HEAD SENTENCE?


12. 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. 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. 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? Yes. The offender was aged 28 at the time of the offence and I estimate the victim to have been about 24.
  2. Is the victim well over the age of 16 years and not an old person? Yes.
  3. Was there only one offender? Yes.
  4. Did the offender not use or threaten to use a weapon? No – he had a knife.
  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. He put himself in a position of trust by saving her from the other men who raped her. Then he tricked her by saying that he was going to save her; only to rape her himself. The categories of relationships of trust are not closed, a point underpinned by the Supreme Court's decision in James Meaoa v The State [1996] PNGLR 280, the case of the dinghy operator who raped one of his passengers.
  8. Was the offender not a member of the same family or clan as the victim? Yes.
  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? Yes.
  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? Neutral. He took her home. He could have done better, but also could have done much worse.
  15. Did the incident have a minimal emotional impact on the victim? No – the court does not have this information and therefore must presume that the emotional impact was serious.
  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.
  22. Is this his first offence? Yes.
  23. Can the offender be regarded as a youthful offender? No.
  24. Will a lengthy gaol term have an adverse effect on the offender's family and others dependent on him? Neutral.
  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? Neutral.

13. Weighing all these factors and though there are 13 mitigating factors compared to eight aggravating factors, I consider that the head sentence should be above the starting point of 10 years. I have given considerable weight to factor No 7, the breach of trust. The victim had just been raped by six other men, which was a terrible ordeal. The offender came to the scene and said he would save her. He tricked her and took advantage of the situation by raping her himself. This was a shocking betrayal of trust. I fix a head sentence of 12 years imprisonment.


STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?


14. 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 year, four months, two weeks, four days.


STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?


15. The pre-sentence report favours suspension of part of the sentence. The victim has been consulted and wants compensation. I will make that a condition of the suspended sentence. I suspend four years of the sentence on the following conditions.


(a) must prior to release from custody arrange payment of K1,000.00 compensation to the victim;

(b) must reside at Bola and nowhere else except with the written approval of the National Court;

(c) must not leave WNB Province without the written approval of the National Court;

(d) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(e) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(f) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim's family;

(i) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE


16. George Tomeme, having been convicted of the crime of rape, is sentenced as follows:


Length of sentence imposed
12 years
Pre-sentence period to be deducted
1 year, 4 months, 2 weeks, 5 days
Resultant length of sentence to be served
10 years, 7 months, 1 week, 2 days
Amount of sentence suspended
4 years
Time to be served in custody
6 years, 7 months, 1 week, 2 days

Sentenced accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2007/225.html