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State v Kapieng [2012] PGNC 102; N4695 (19 April 2012)

N4695

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 108 OF 2012

THE STATE

V

SEKE KAPIENG

Minj: Murray, J
2012: 13 &19 April

CRIMINAL LAW - Sentence - Rape –Section 347 (1) Criminal Code Act, (Chapter 262) Early Guilty Plea - 10 Years Imprisonment in Hard Labour
Cases cited:

State v Yali (2006) N2989
State v Jeffrey Wongi (2006) N3016

Counsel:

Mr A Bray, for the State
Mr E Thomas, for the Accused

SENTENCE

19th April, 2012

1. MURRAY, J. Introduction: This is a ruling on your sentence, Seke Kapiang. You had on 13th of April (last Friday) pleaded guilty to a charge that you had on 24th September 2011, at Kola village here in Minj, sexually penetrated one, Nancy Stanley without her consent, by inserting your penis into her virgina.

2. I confirmed your plea and convicted you of the offence of Rape, and reserved sentencing till today.

Facts:

3. The facts as presented by Mr Bray of counsel for the State to which you pleaded guilty to were as follows:

On 24th September 2011, you approached Nancy Stanley and her husband and invited them to go with you to your village Korkor, a village in Minj.

Accepting your invitation, you were all on your way to your village, when you met up with someone else. You then asked this someone else and the victim's husband to go buy some homebrew, which you provided the money for. Whilst they were gone, you told the victim to follow you to another village where you will both wait for her husband and the other person. The victim agreed and whilst you were on your way, you threatened the victim with a bush knife, pulled here into a coffee garden, took off all her clothes, laid her down on the ground and had sexual intercourse with her. At no time did the victim give you the permission to have sexual intercourse with her.

Remarks

4. What you did to that person, Nancy Stanley is rape, and rape is a very serious offence.

Law

5. Our law that makes rape, a serious offence is s 347 of the CCA. This section reads:

347: Definition of Rape,

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

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

(2) Where an offence under subsection (1) is committed in circumstances of aggrevation, the accused is liable, subject to s.19 to imprisonment for life"

6. The punishment prescribed in this section only eflects the seriousness of the offence, and it is intended to protect women or girls from sexual predators such as yourself.

7. As you have pleaded guilty, the issue before me is "what would be an appropriate penalty to impose on you".

8. In order to determine that, I would have to consider what you have said in allocutus, what Mr Thomas, who is your lawyer has said on your behalf, and compare those to what Mr Bray, the lawyer for the State has said and at the same time consider and compare your case to similar cases that have been decided

Allocutus

9. In your allocates, you expressed remorse for what you did. You directed this firstly to God, then to the Court and then to the victim. After that, you asked for leniency.

Your Lawyer's Submission

10. According to your lawyer, you are 30 years, single unemployed and living with your parents, and in support of your request for leniency, your lawyer, Mr Thomas submitted the following as mitigating factors.

(a) You have made a early guilty plea.
(b) You co-operated with the police.
(c) There was only one instance of sexual penetration.
(d) The victim was not subject to other sexual ordeals.
(e) You did not inflict any physical harm on the victim.
(f) You were the sole perpetrator and
(g) You are a first time offender.

11. At the same time, Mr Thomas referred the Court to two aggravating factors that went against you. These factors were:

(a) You used a bush knife and
(b) The victim had a degree of trust in you.

12. Mr Thomas then went on and submitted that, considering the factors for and against you, a term of 10 years would be an appropriate sentence.

13. In making that submission, your lawyer referred to and relied upon two case authorities. The decisions in both those authorities are decisions of Cannings, J. These authorities are:

(a) State vs. Yali (2006) N2989 &
(b) State vs. Jeffrey Wongi (2006) N3016.

14. In those two cases, Cannings, J discusses s. 347 of Criminal Code Act where he makes a distinction between a charge laid pursuant to s. 347(1) and a charge laid under s. 347(2) Criminal Code Act. The distinction being, a charge under s. 347(1) attracts a maximum penalty of 15 years imprisonment, where as a charge under s. 347(2) would attract a maximum penalty of life imprisonment.

15. In both those cases, the charges were laid pursuant to section 347(1) Criminal Code Act and using a 10 year sentence, which His Honour held as a starting point when sentencing under section 347 (1) and taking into account all mitigating factors and aggravating factors, in the respective cases, imposed a sentence of 12 years and 14 years respectively.

16. It is the case here that the charge laid against you is made pursuant to s.347 (1) of the Criminal Code Act.

State Lawyer's Submission.

17. Mr Bray of counsel for the State submitted that the maximum penalty for a charge under section 347(1) CCA is 15 years imprisonment and so this Court should impose 15 years or below. However, taking into account the mitigating factors, in particular, the very early plea, which Mr Bray considered was a very important mitigating factor and weighing that and the other mitigating factors against the aggravating factors, Mr Bray submitted, there was a balance, and so he agreed with Mr Thomas that a term of 10 years is appropriate.

Consideration by the Court

18. As the charge laid against you is under section 347(1) Criminal Code Act, I have considered the discussions and views expressed by Cannings, J. in the two cases referred to applicable, and so I consider 10 years as a starting point is appropriate in this case.

19. The question then is, do the factors raised against you, weigh more than the factors raised in your favour, so as to persuade me to impose a sentence higher than the starting point of 10 years imprisonment? My answer to that question is NO.

20. I agree with Mr Bray that, the fact that you pleaded guilty very early is a very important mitigating factor, because it has two immediate effects.

21. The first is that, it has saved the State, considerable time, effort and expenses in bringing witnesses to this Court to prove the case against you and secondly, this means that, the victim will not be required to come before this Court to re-live her unfortunate and traumatic experience in front of strangers, which I am sure, none of us here would like to see our daughters, sisters, aunties, mothers or nieces go through if they were in similar situations.

22. In those circumstances, I consider a sentence of 10 years imprisonment is appropriate and so I impose that sentence against you.

23. Out of that, I order that the period you have already spend in custody be deducted, and the balance to be served in hard labour.

24. Finally I order that, a warrant of commitment in those terms shall be issued forthwith.
Sentence accordingly.
_______________________________

Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Accused