Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Haupas [2007] PGNC 81; N3186 (21 March 2007)

N3186

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 779 0F 2004

THE STATE

V

MARK SAMUEL HAUPAS

Bialla: Cannings J

2007: 13, 16, 21 March

CRIMINAL LAW – sentencing principles for sexual assault – Criminal Code, Division V.7, sexual offences and abduction – Section 349, sexual assault – sentence after plea of guilty – sexual assault by young man of pregnant woman – circumstances of aggravation not pleaded in indictment – sentencing of an offender under Section 349(1) – maximum penalty of 5 years imprisonment – starting point – identification of relevant considerations – sentence of 3 years.

The offender pleaded guilty to the sexual assault of a pregnant woman. He acted alone. No weapons were used. The offender did not surrender. No circumstances of aggravation were pleaded in the indictment, so the maximum sentence the court could impose was five years.

Held:

(1) The starting point for sentencing for sexual assault without circumstances of aggravation under Section 349(1) of the Criminal Code is two years, six months (30 months) imprisonment.

(2) Mitigating factors are: only one offender; isolated incident; no further trouble; pleaded guilty; first-time offender.

(3) Aggravating factors are: disturbed by passers-by; serious physical assault; victim was pregnant and vulnerable; no compensation or reconciliation; no genuine remorse; not a youthful offender.

(4) A sentence of three years was imposed. The pre-sentence period in custody of six months was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989
The State v John Erip Muge CR No 1996 of 2002, 17.08.06

SENTENCE

This was a judgment on sentence for sexual assault.

Counsel

F Popeu, for the State
O Oiveka, for the offender

21 March, 2007

SENTENCE

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to the offence of sexual assault.

CONVICTION

2. The offender pleaded guilty to the following facts:

• On 20 January 2004 he was at Tiauru village, near Bialla. The victim, a woman who was seven-months pregnant, walked down to the creek to fetch water. She was carrying various water containers. He followed her and was talking to her.
  
• The victim got the water and was walking back to her house. He followed her again, then held her on the neck and forced her to the ground, got on top of her and tried to remove her clothes.
  
• The victim struggled but the offender managed to remove her undergarments and touched her sexual parts, without her consent, before he was disturbed by passers-by and ran away.
  

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him on one count of sexual assault under Section 349(1) of the Criminal Code, as charged.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. 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 say sorry for what I have done. I was tempted at the time but I only touched her.

I ask the court for mercy. Please give me a good behaviour bond.

If I go to jail it will be very hard on my family. The family is poor and they rely on me to work our block. If I am not there no one will be able to look after the block. My wife has just given birth and it will be very hard for her if I am not around.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, (Jalina J, Mogish J, Cannings J)).

7. The only issue of significance is that the victim did not suffer serious physical injuries and that her baby was unharmed. The victim presented to the Bialla Health Centre a few hours after the incident. A medical report showed that she had symptoms consistent with sexual assault or attempted rape. She had mild scratches on her neck and thigh, torn underpants, no obvious bleeding or swelling. The baby was reported as "normal within the uterus" and was in good health and condition when born.

PRE-SENTENCE REPORT

8. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

MARK SAMUEL HAUPAS

Age: 29-year-old male.

Residence: lives at Tiauru, Section 6, with wife, child and in-laws.

Family background: parents are from Bialla (mother) and Buka (father) and raised in WNB – third born in family of seven – parents alive and living in Bialla, father works at LLG.

Marital status: Married with one child.

Education: grade 8, Bialla HS, 1994.

Employment: never employed in formal sector.

Health: OK.

Financial status: no bank account – earns money from oil palm.

Plans: wants to care for family and live off the block.

Victim’s attitude: has received no apology or compensation – it was a bad experience for her.

Family’s attitude: supportive – would like to see offender given non-custodial sentence.

Attitude of community: good community member – not a trouble-maker.

Recommendation: the offender is suitable for probation – should be ordered to do community work.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka submitted that as no circumstances of aggravation were pleaded in the indictment the maximum penalty was five years imprisonment. He highlighted that the offender pleaded guilty and he expressed remorse. This was a crime of opportunity. He is not a danger to the community.

SUBMISSIONS BY THE STATE

10. Mr Popeu conceded that the maximum penalty was five years imprisonment. However, this was a serious case and the court must consider the prevalence of this offence and the need to provide a deterrent sentence. Women should have the right and freedom to walk around without fear of harassment.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 349 (sexual assault) of the Criminal Code 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 person 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 tern of imprisonment not exceeding 10 years.

13. The sentencing regime for sexual assault distinguishes between:

• sexual assault under Section 349(1) (which could for the sake of convenience be called sexual assault simpliciter) for which the maximum penalty is five years imprisonment; and
  
• sexual assault in circumstances of aggravation under Section 349(2) (which could for the sake of convenience be called aggravated sexual assault) for which the maximum penalty is ten years imprisonment.
  

14. In the present case the offender was not charged with any circumstances of aggravation. Such circumstances are prescribed by Section 349A and include where the victim was pregnant at the time of the offence.

15. If circumstances of aggravation are to be taken into account for the purposes of increasing the maximum penalty above what it would otherwise be, they must be charged in the indictment and proven beyond reasonable doubt as an element of the offence (The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v James Yali (2006) N2989, Cannings J). If they are not charged in the indictment, they may nonetheless be taken into account as aggravating factors when deciding on a sentence within the allowable range.

16. To sum up:

• the maximum sentence for which the offender is liable is five years imprisonment;
  
• ie, the sentencing range is zero to five years imprisonment;
  
• in determining the head sentence within that range the court is entitled to take into account any circumstances of aggravation proven, including those prescribed by Section 349A, even though they were not charged in the indictment;
  
• 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?

17. I have been unable to locate a suitable precedent, so I will use the mid-point of two years, six months (30 months) as the starting point.

STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS AND WHAT IS THE HEAD SENTENCE?

18. 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. The list is based on the considerations I identified in an attempted rape case I decided last year in Buka, The State v John Erip Muge CR No 1996 of 2002, 17.08.06. 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 more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

19. 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.

20. Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the incident. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the sexual assault not progress further due to the offender’s actions? No, the offender was disturbed by passers-by.
   
2. Was there only one offender? Yes.
   
3. Did the offender not use a threatening weapon and not use aggravated physical violence? No, it was a serious physical assault. The offender forced a pregnant woman to the ground.
   
4. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes, it appears that the victim and her baby were not seriously physically injured.
   
5. Was there no relationship of trust, dependency or authority between the offender and the victim and was the victim not a vulnerable person due to her age or circumstances? No, although the offender and the victim were in no special relationship of trust, the very serious aggravating aspect of this case is that the victim was pregnant. His actions were violent and put the life of the woman at risk as well as that of her baby.
   
6. Was it an isolated incident? Yes.
   
7. Did the offender give himself up after the incident? Neutral. He gave himself up but only because he was scared of retaliation by the victim’s relatives.
   
8. Did the offender cooperate with the police in their investigations? Neutral. When interviewed by the police he made no admissions.
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony or personally or publicly apologising for what he did? No.
   
10. Has the offender not caused further trouble to the victim or the victim’s family since the incident? Yes.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? No. He said he was sorry but the apology sounded rather hollow.
    
13. Is this his first offence? Yes.
    
14. Can the offender be regarded as a youthful offender? No.
    
15. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

21. To recap, the following are mitigating factors:

• No 2 – only one offender;
• No 6 – isolated incident;
• No 10 – no further trouble;
• No 11 – pleaded guilty;
• No 13 – first-time offender.
  

22. The following are aggravating factors:

• No 1 – disturbed by passers-by;
• No 3 – serious physical assault;
• No 5 – victim was pregnant and vulnerable;
• No 9 – no compensation or reconciliation;
• No 12 – no genuine remorse;
• No 14 – not a youthful offender.
  

23. The other factors are neutral.

24. After weighing all these factors and bearing in mind that there are five mitigating factors compared to six aggravating factors, the head sentence should be above the starting point of two years, six months.

25. This was a very serious case of sexual assault, which could have easily been charged as aggravated sexual assault (with a maximum of 10 years) or attempted rape (with a maximum of 14 years). The offender has had more than three years to apologise and commence compensation and reconciliation but has failed to deal with the problem appropriately.

26. I impose a head sentence of three years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

27. The offender has spent six months in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. 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, as shown in the following table.

TABLE 1: CALCULATION OF FINAL SENTENCE

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. No. This was a bad case of sexual assault. Though the pre-sentence report recommends the offender for probation I am not impressed with the offender’s lack of genuine remorse and his failure to compensate or reconcile with the victim. None of the sentence will be suspended.

SENTENCE

29. Mark Samuel Haupas, having been convicted of one count of sexual assault, is sentenced as follows:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused