PNG Law Reports 1993
[1993] PNGLR 124
N1146
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
RAPHAEL KUENGU
Rabaul
Doherty J
8 March 1993
12 March 1993
CRIMINAL LAW - Sodomy without consent - factors considered aggravating in rape may be considered aggravating in this offence.
CRIMINAL LAW - Sentencing - Sodomy - Guidelines for rape not fully applicable in view of the difference in maximum sentence - Age of victim taken into account.
Facts
The defendant pleaded guilty to one count of unlawful carnal knowledge against the order of nature with a young fellow detainee without his consent.
Held
1.       The circumstances of the offence would have amounted to rape if the victim had been a female, and the aggravating factors set out in Aubuku v The State [1987] PNGLR 267 are applicable.
2.       The sentence guidelines in Aubuku v The State cannot be adopted in total as the maximum penalties for the two offences are different.
Cases Cited
Aubuku v The State [1987] PNGLR 267.
Secretary for Law v Dewake [1975] PNGLR 100.
Counsel
N Sios, for the State.
T Tamusio, for the defendant.
12 March 1993
DOHERTY J: The defendant has pleaded guilty to one count of unlawful carnal knowledge against the order of nature contrary to s 210 of the Criminal Code Ch 262.
On his plea he said that the charge was true but denied one detail of the facts, which was that he blindfolded the victim prior to the act of sodomy. The State did not pursue that particular detail and, hence, it was deleted from the facts.
The witness statements show that the defendant is serving sentence for two criminal offences at Kerevat Corrective Institution, he is approximately 29 years of age, and has a strong and healthy appearance.
He instructed another detainee to ask a 16-year-old remandee, G, to see him in his cell.
When G arrived, the prisoner closed the door and started to upbraid G concerning the proceeds of theft, alleging that a big amount of money was stolen and only a small amount given to the prisoner's brother. He then made it clear that he wished to have sex with G. When G tried to open the door and go out, he was prevented, hit, and pushed back. He was threatened, he alleges, with a knife. He attempted to escape a second time, the knife was thrown and, thereafter, anal coitus took place.
The medical report on G shows that he was in severe pain and had difficulty walking normally. He was 16, felt sick, and was in pain. He had malaria at the time of the incident. The medical report showed bleeding, and the surface of the body was tender on examination with multiple scratches. The medical report confirmed that the anal intercourse had taken place.
If G had been a female person and not a male, this would have been considered as a crime of rape. It was an act of forced sexual connection without the consent of the victim. In the eyes of the community, this is the common concept of rape, and we now hear the expression "male rape" being used. The Constitution s 55 stresses equality regardless of creed, tribe or sex. I consider that the factors set out in Aubuku v The State [1987] PNGLR 267, when considering sentence for rape of a female can be justifiably applied to forced sexual connection without consent of a male. I note that the victim, G, said he told the prisoner, "You really spoil me now". The expression "spoil" is one we see used in witness statements in relation to unlawful carnal knowledge or rape of a female and has been used in Court precedent. This indicates to me a similarity in attitude between the victim in this case and the victim in a female rape.
The aggravating factors mentioned in Aubuku, which I consider applicable to the case before me, are the age of the victim (approximately 16 years), the presence of the knife, the use of force resulting in the multiple scratches shown in the medical report, the planning (though this is very limited), and the emotional effect on the victim.
Community attitudes to sodomy differ. The Supreme Court has said in Secretary for Law v Dewaka [1975] PNGLR 100 that this is treatment that is regarded with gravity throughout the country. 
There are very few communities where it is considered a totally acceptable practice, but in some it is more tolerated than others and there have been no changes of attitudes over the last few decades. I am not aware of a full study of attitudes towards sodomy in the many diverse communities of Papua New Guinea but have noted in court cases over the years that it invokes a greater degree of abhorrence in some communities than it does in others.
I am not aware of any community that considers forced sexual connection of this kind to be acceptable behaviour.
A legal restriction on accepting fully the guidelines in Aubuku is the comparative maximum punishments in the two crimes. Rape, s 347 Criminal Code, carries a sentence of life imprisonment, whereas unlawful carnal knowledge against the order of nature, s 210 of the Criminal Code, carries a maximum 14 years in hard labour. For this reason, I do not consider I am able to adopt in total the guidelines on sentence set down in Aubuku.
I have also reviewed the sentences for this type of offence that have been given in the National Court in the last few years.
One of the few reported judgments relating to this offence is Secretary for Law v Dewake. That case involved indecent minimal penetration of a 3 1/2-year-old child. The facts do not suggest force or use of a weapon, although the Supreme Court did stress at p 103 the need to consider the age of the child who was interfered with, the need for the law to protect children and "the strong concern, which should be reflected in the sentence, of the people of Papua New Guinea not only for the general care of children, but that young children should not be exposed to sexual treatment such as this which is regarded throughout the country as a matter of gravity". Hence, that case is not on all fours with the facts before me. I have also considered past sentences in the last few years. These have ranged from two years for forced sodomy in gaol on a plea to four years for forced sodomy in gaol on a trial. I recall in one of the cases involving forced sodomy in gaol, the defendant said on his plea, "Other people are doing it, why should I be charged?" It is fairly well accepted, despite lack of documentation and research, that sodomy does occur in gaols, not only in Papua New Guinea, but in other places. I have no statistics to indicate the degree.
The fact that it happens among others does not make it acceptable and does not make it any less of a criminal offence. Prevalence does not make any criminal activity acceptable or tolerable in law.
The defendant has pleaded guilty, and this is very much in his favour. It is normally considered of particular importance in a sexual offence. He is already serving a long sentence (14 years) for rape and robbery. He has five other offences for stealing, assault, and breaking and entering, going back to 1977. He said he had "been in gaol since (his) youth until today, and I have learnt to live the hard way as inmates live". He also said he is now an adult and has sexual feelings and, that is why he did what he did. I can accept that attitude, but the facts do show an element of force in what he did, and it could not be described as a loving, consensual relationship. He has asked for a good behaviour bond and has referred to three months in confinement which he has already served. He has apologised for the thing he has done and shown some remorse, although he did not convey great conviction to me.
Given the facts, particularly the force used and the age of the victim, I consider a sentence of four years in hard labour would be appropriate. I must, however, consider three other matters:
1.       this may represent a sudden increase in sentences imposed for this type of offence, 
2.       the totality of the sentences being served by this defendant if I impose a further four years, and
3.       the fact that he has received some other punishment viz separate confinement for three months.
I also bear in mind that there appears to be an increase in this type of offence and the need for deterrence. People are put in gaol to be reformed and punished, not to be subjected to rape and assault.
The Supreme Court has made it clear that, when considering prevalence of offences, the need for deterrence, and other factors, a court must not suddenly increase the sentence normally imposed for that type of offence. For all of these various reasons, both the facts before me and the general principles of sentencing, I have decided not to impose the sentence of four years which I consider would be appropriate but to, instead, impose a sentence of three years, to be served cumulatively.
I have given some thought to the good behaviour bond requested in allocutus, but for the protection of other prisoners and because of the force used, I cannot agree to that.
Lawyer for the State: Public Prosecutor.
Lawyer for the Defendant: Public Solicitor.