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State v Mora [2013] PGNC 336; N5546 (9 May 2013)

N5546

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 523 of 2012

THE STATE

-v-

JOHN MORA

Vanimo: Geita AJ
2013: May 9, 15

CRIMINAL LAW – Attempted Rape – Early guilty plea – Section 348 Criminal Code.

CRIMINAL LAW – Attempted rape – Deposition Evidence – Mitigating and Aggravating circumstances – First time offender- no serious assault- no weapon used- victim traumatised – Pre sentence report – part custodial sentence-suggested- Convicted-Sentenced to 7 years with suspended sentence – Prisoner placed on 24 months' Probation with four hours per month community work - Probation to be served in Vanimo - Section 18 (1) Probation Act.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
John Kalabus [1988] PNGLR 193

Counsel:

Mr. Jim Wala Tamate, for the State
Ms. Ranata Yayabu, for the Accused

DECISION ON SENTENCE

15th May, 2013

1. GEITA AJ: The prisoner John Mora has pleaded guilty to one count of attempted rape contrary to s.348 of the Criminal Code Act. This offence attracts a maximum penalty of 14 years imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence.

The Facts:

2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On 1st February 2012 at around 11.30am the complainant had just delivered her new born baby at Vanimo General Hospital maternity ward and was about to take her shower when you entered the toilet/shower room and attempted to rape the complainant. The startled complainant started screaming which alerted a nurse who came and to her rescue. At the time you were seen fully naked with your penis erected and had your finger bitten by the complainant when you tried to cover her mouth. You were chased and apprehended by the hospital security and handed over to the police who charged you for attempted rape.

3. Having satisfied myself of your plea of guilty I accepted your plea and recorded it accordingly.

What is the law on attempted rape? Section 348 Code

A person who attempts to commit the crime of rape is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years.

Allocutus

4. During the administration of the allocutus or when you were given the opportunity to speak on the question of penalty you asked the court to have leniency on you and told court that what you did was wrong.

Mitigation Circumstances

5. The factors in mitigation are:

1. No prior convictions, first time offender
2. No physical injuries caused to the complainant
3. Prisoner was alone and not in company of others
4. Early guilty plea
5. No dangerous weapon used

Aggravating Circumstances

6. The aggravating factors include:

1. The complainant suffered emotional stress as a result of the attack

2. The complainant vulnerable to psychological stress, having just recently given birth.

Pre- Sentence Report

7. A pre sentence report prepared and submitted on your behalf by Senior Probation Officer Mr. Ben Kasanda on 14/5/2013 amongst other recommendations suggest that because you pose a real threat to the community you should not be placed on part non custodial probation but repatriated back to your home province Port Moresby to serve your probation. That strong views of the victim and other interested community members here in Vanimo is that you have broken traditional taboos and the country's laws by attempting to rape the victim who had just given birth and must be sent to prison.

8. Section 18 (1) Probation Act gives this court additional powers to impose such other conditions as are necessary in the circumstances of the case for ensuring compliance by the probationer with the conditions of the order and for his good conduct and welfare. I have however decided against making repatriating orders for you to be sent back to Port Moresby for two reasons. The first is that the offence was committed here in Vanimo and any probation orders including community work orders are best served her in Vanimo as they have a very strong deterrence effect. Secondly since you still have other pending criminal cases before courts here in Vanimo you must remain within jurisdiction. To do so otherwise would amount to perverting the cause of justice. Thirdly courts attitude are such that prison terms are best left for the worst types of offences.

Submissions on sentence

9. In her oral submissions Defence Lawyer Ms. Renata Yayabu submitted that the circumstances of the case do not warrant the imposition of the maximum 14 jail sentence. In light of the prisoners guilty plea, no prior conviction and no physical harm caused to the complainant she submitted that court consider a starting point of 10 years. No case precedents were presented to court. Ms Yayabu invited the court to also consider sentencing options available under Section 19 (6) Criminal Code Act and your Pre sentence report.

10. State Prosecutor Mr Jim Tamate also did not present any case precedents to the court and invited the court to exercise its discretion and impose a custodial sentence in light of calls by the community for your incarceration.

Decision of the court

11. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193

12. The second issue is framed in this question and that is what is an appropriate sentence in your case? I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me .My deciding on what is the appropriate sentence I should impose on you and whether parts of your sentence should be suspended, will depend on points favourable to you and points against you.

13. After having considered all the information before me in your favour and against you I have come to the conclusion that 7 years to be the appropriate starting point in your case. The sentence I now imposed upon you is as follows:

1. You are sentenced to 7 years imprisonment in hard labour,
2. I order a deduction of 14 months for your pre trial custody period,
3. I impose a sentence of 5 years 6 months of which you must serve sentence for 12 months after which the balance will be wholly suspend and release you on probation for a period of 24 months.,
4. You are ordered to enter into your own recognizance to be of good behaviour throughout the period of your suspended sentence,
5. You are to report to the probation officer in Vanimo as and when required by the probation officer; and
6. You are ordered to performing four hours of community work every month at the Vanimo General Hospital under the supervision of the Senior Probation Officer in Vanimo within the first 12 months of your probation.
7. Upon breach you will be arrested to serve out the full sentence.
   

Ordered accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused