State v Yochie [2010] PGNC 108; N4113 (18 March 2010)

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CRIMINAL LAW – sentence – rape – Criminal Code, Sections 347(1) and (2) – guilty plea – circumstances of aggravation – breach of trust.

The offender pleaded guilty to the rape of his 17-year-old daughter. The breach of trust was charged in the indictment. There was no reconciliation or forgiveness.

James Yali v The State SCRA No 3/2006, 18.02.10
Saperus Yalibakut v The State (2006) SC890
The State v Douglas Jogioba CR No 1765/2005, 26.10.07
The State v George Tomeme CR No 920/2002, 24.08.07
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Philip Kila CR No 777/06, 15.07.09
The State v Philip Nangoe CR No 392/2006, 24.10.07

1. CANNINGS J: This is a decision on sentence for a 42-year-old married man, Robert Yochie, who pleaded guilty to the rape of his 17-year-old biological daughter. He has been convicted of one count of rape committed in circumstances of aggravation (abuse of trust, authority and dependency) under Sections 347(1) and (2) of the Criminal Code.

2. The offence was committed at 5.00 am on 4 February 2007 at the offender's cousin's residence near Madang town. The offender and the victim were staying there for a short time, on their way back from the offender's village in East Sepik Province to Milne Bay Province, where they had lived for many years. The offender's wife – the victim's mother – is from Milne Bay and the offender had a regular job there. The victim had been asleep and got up to go to the toilet a short distance away from the back of the house. She had finished urinating and was in the process of pulling up her shorts when her father approached her from behind, grabbed her, pulled off her clothes and penetrated her vagina with his penis. She did not consent.

I am in fear of my God and say sorry to Him, to the Court, my daughter, my wife and my family. Though I was granted bail my guarantors were unable to assist me and I have remained in custody, in remand, for a long time and I have not had the chance to get out and solve this problem. I am concerned about the welfare of my wife and children. Please consider me for transfer to Boram.

5. 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 (2006) SC890). However, none are apparent.

6. Robert Yochie comes from Tangori village in the Kubalia area of East Sepik. He and his wife have eight children, the victim being the eldest. The offender is a plumber by trade and had regular paid employment for 20 years prior to committing the offence. He claims to be a faithful member of the Seventh-Day Adventist Church and does not smoke, drink or chew. When he is released from custody he wants to go back to his family in Milne Bay and reconcile with them, especially with the victim. No members of his family were interviewed for the purposes of the report. It appears that his wife and children have remained living in Milne Bay Province. The report concludes that he is not a danger 'to anyone but to himself' and that he is suitable for probation.

7. Mr Kolkia highlighted the guilty plea, which is very significant in this case as the offender has saved his daughter the trauma and embarrassment of giving evidence in court. Also, he is a first-time offender, he has expressed remorse and he did not pass on any sexually transmitted disease to the victim or make her pregnant. Compared to the recent Madang case of The State v Philip Kila CR No 722/2006, 15.07.09, this case was not as serious, he submitted. In Kila a police officer was found guilty after a trial of the rape of a young woman. He committed the offence at night, while searching the victim's family's house in the course of a police raid of a village. He threatened her with the police-issued firearm that he was carrying, then sexually penetrated her without consent. The sentence was 17 years imprisonment. Mr Kolkia submitted that the sentence in the present case should be 10 years and because of the lengthy period that the offender has already spent in custody and the recommendation for probation, the balance of the sentence should be suspended.

8. Mr Kupmain strongly opposed the defence counsel's submissions, arguing that this was a very serious case of rape, warranting a sentence of 15 to 17 years. He submitted that the recommendation for probation was entirely unwarranted and none of the sentence should be suspended.

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

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

11. The abuse of trust that occurred in this case was a circumstance of aggravation that was charged in the indictment. Therefore the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum by virtue of Section 19 of the Criminal Code.

12. In The State v James Yali (2006) N2989 I expressed the view that the starting points when sentencing for rape should be:

13. I follow that approach in this case and use 15 years imprisonment as a starting point.

14. Before I fix a sentence I will consider other sentences I have imposed for rape in cases that for various reasons have similarities with the present case.

No	Case	Details	Sentence
1	The State v James Yali (2006) N2989, Madang	Trial – offender raped 17-year-old sister of his de facto wife – conviction under Section 347(1).	12 years
2	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
3	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
4	The State v George Tomeme CR No 920/2002, 24.08.07, Kimbe	Trial – shortly before meeting the offender, the victim, a young woman, had been raped by six other men – offender led her away on pretext that he was saving her, then raped her himself – conviction under Section 347(1).	12 years
5	The State v Philip Nangoe CR No 392/2006, 24.10.07, Buka	Trial – offender raped young mentally retarded woman, near a public road – offender went after her – conviction under Section 347(2).	15 years
6	The State v Douglas Jogioba CR No 1765/2005, 26.10.07, Buka	Trial – schoolteacher raped 16-year-old student – two counts: first, digital penetration of vagina; second, penile penetration of vagina – conviction under Section 347(2).	10 years
7	The State v Philip Kila CR No 777/06, 15.07.09, Madang	Trial – police officer raped victim in course of police duties, threats of violence – conviction under Section 347(2).	17 years

15. I refer to the list of sentencing considerations set out in The State v James Yali (2006) N2989, which were recently reviewed by the Supreme Court in an unsuccessful appeal by the offender (James Yali v The State SCRA No 3/2006, 18.02.10) and highlight the following mitigating and aggravating factors.

18. At first glance the number of mitigating factors may appear to warrant a head sentence below the starting point of 15 years. However, in exercising the discretion as to sentence a Judge is required to look at not only the number but also the weight to be attached to the mitigating and aggravating factors. The major aggravating factor in this case is that the offender violated one of the most sacred duties of trust known to exist between two human beings: the duty of protection, love and trust between a father and his daughter. I reject the defence counsel's submission that this case warrants a sentence of only ten years. I accept that the guilty plea must be given prominence (though it was not an early plea) and therefore the case warrants a lesser sentence than other aggravated rape cases, Philip Kila (17 years) and Philip Nangoe (15 years). After comparing and contrasting this case with the other cases summarised above, I consider that the head sentence should be a little below the starting point. I fix a head sentence of 14 years imprisonment.

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

19. 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 three years, one month, one week.

20. On this issue, I uphold the prosecutor's submission. No justification is provided in the pre-sentence report for probation. There is no evidence of reconciliation between the offender and his daughter and the rest of the family. Though he has been in remand for a long time, in prison a long way from his family, it must be presumed that if his daughter or wife or other family members were at all interested in forgiveness, some attempt would have been made to contact him or his lawyers or the court. Nothing has happened. I will not suspend any part of the sentence. As the offender has requested that he serve his time at Boram Jail, East Sepik Province, I will make an order to that effect.

21. Robert Yochie, having been convicted of the crime of rape in circumstances of aggravation under Sections 347(1) and (2) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	14 years
Pre-sentence period to be deducted	3 years, 1 month, 1 week
Resultant length of sentence	10 years, 10 months, 3 weeks
Amount of sentence suspended	Nil
Time to be served in custody	10 years, 10 months, 3 weeks
Place of custody	Boram Correctional Institution – to be transferred within three months after date of sentence.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender

National Court of Papua New Guinea

State v Yochie [2010] PGNC 108; N4113 (18 March 2010)