[2000] PNGLR 225

PAPUA NEW GUINEA

[supreme court of justice]

RUDY YEKAT

v

THE STATE

wewak: jalina, kirriwom, kandakasi jj
20, 22 November 2000

CRIMINAL LAW — Appeal against sentence — Aggravated rape of a married woman — Eight years sentence confirmed.

Facts

The appellant appealed against sentence on a plea of guilty to a rape of a married woman. On 27 January 1999, between 10.00am and 12.00 noon, at Ambunti, East Sepik Province, the victim, Anna Peter was on her way back home alone from the Ambunti Health Centre. The appellant followed her and repeatedly tried to entice the victim into having sex with him. The victim continuously refused and kept on her way. He therefore approached the victim and threatened her with a bush knife and took her to a riverside bush and forcefully had sexual intercourse with the victim. Out of fear for her life the victim did not shout or scream and the appellant repeatedly raped the victim. As soon as the appellant was satisfied, the victim was left to go and she immediately reported the matter and the appellant was arrested and charged with rape.

Held

1.	The Supreme Court in John Aubuku v The State [1987] PNGLR 267, set the guidelines for sentences in rape cases. The Supreme Court said the offence is a serious one and such it requires an immediate punitive custodial sentence starting at 5 years. A much more higher sentence should be imposed where there are aggravating factors such as the use of bush knives or other dangerous weapons. Subsequent cases have imposed sentence terms much higher than the guidelines set in the John Aubuku case. The current maximum for rape with aggravating factor and of the worst type is 15 years as in the Lawrence Hindemba v The State (1998) unreported SC593 and 14 years in James Mora Meaoa v The State [1996] PNGLR 280.

2.	The judgement in the Lawrence Hindemba case is the latest response by the Supreme Court, to calls by the community for a tougher penalty. In that case, the National Court imposed a 10-year sentence for an aggravated rape of a small 10-year old girl. The appellant in that case, used a pocketknife to threaten and have sex with the girl by force. The victim was under immense pressure and her vagina was caused to bleed. The Supreme Court dismissed the appeal and in the exercise of its powers under s 23(4) of the Supreme Court Act (Ch 37) increased the sentence to 15 years.

3.	The learned trial judge did not erred in his judgement and the decision to impose the 8 years sentence. The appellant is very fortunate to have, in the court’s view, received the sentence of 8 years, which is light. The Court does have the power under s 23(4) of the Supreme Court Act (Ch 37) to increase the sentence, as was done in the case of Lawrence Hindemba v The State (supra). However, this Court was not asked to exercise that power.

4.	Appeal dismissed and the 8 years sentence confirmed. 

Papua New Guinea cases cited

James Mora Meaoa v The State [1996] PNGLR 280.
John Aubuku v The State [1987] PNGLR 267.
Lawrence Hindemba v The State (1998) unreported SC593.

Counsel

Appellant, in person.
P Kaluwin, for the respondent.

22 November 2000

By the court. This is an appeal against sentence on a plea of guilty to a rape of a married woman. Initially the appellant denied the charge. That necessitated preparation for trial by the State and the Court. Thus it did not save the State the time and expenses to prepare for trial. It did however, prevent the victim from reliving the bad memories of the incident.

Facts

On 27 January 1999, between 10.00am and 12.00 noon, at Ambunti, East Sepik Province, the victim, Anna Peter was on her way back home alone from the Ambunti Health Centre. The appellant followed her and repeatedly tried to entice the victim into having sex with him. The victim continuously refused and kept on her way. The appellant eventually realised that he was not going to have sex with the victim freely. He therefore approached the victim and threatened her with a bush knife and took her to a riverside bush and forcefully had sexual intercourse with the victim. That was without the victim’s consent and therefore aggravated rape. Out of fear for her life the victim did not shout or scream and the appellant repeatedly raped the victim. As soon as the appellant was satisfied, the victim was left to go and she immediately reported the matter and the appellant was arrested and charged with rape. The evidence does not suggest, whether the appellant had knowledge of the victim being a married woman. However on the other evidence on file it seems the appellant knew the victim and the victim knew the appellant, as she was able to name the appellant in her statement to police. Therefore, the appellant had knowledge of the fact that the victim was a married woman. As was found by the learned trial judge, it is reasonable to expect that the rape on the victim traumatised her. It could also have affected her marriage and that she was forced to bear a lot of shame, anguish and pain because of the scars left by the rape.

Before sentencing, we note that the learned trial judge considered the factors that went in favour of the appellant including his belated guilty plea, him being a first time young offender and coming from a simple village background or setting. We also note that the learned trial judge after considering all the factors decided that a custodial sentence was called for and imposed an eight-year imprisonment term. The appellant is now appealing against that sentence and states in his ground of appeal "Appeal against sentence".

The Offence

The crime or offence of rape is on the increase. Without any argument it is a very terrible crime against women in particular and society in general. Only people who are sick in their heads or completely out of their minds and have no sisters, mothers, wives or female relatives could commit these types of offences. They therefore, need to be locked away from the community for its protection.

The offence has to be condemned in the strongest term possible. It has now gotten to a stage where our women and girls can not freely move around in a full realisation of their constitutionally guaranteed freedom of movement and or function in society as human beings, without the fear of being raped or otherwise sexually abused and harassed. Our Constitution requires every person in the country to treat each other with the human dignity and respect as human beings without exception. Yet rapist such as the appellant, treat our women and girls as if they are mere sex objects only to fulfil the selfish and evil desires of people like them. The majority of the people in Papua New Guinea are good law-abiding citizens. It is only a few minorities such as the appellant, who are responsible for this unspeakable evil in our society. It is an offence as with any other serious offence that stands in the way of the progress of our nation. It thus needs to be eradicated for the advancement of our country. For there can be no progress without our women and girls being equals and distinguished only by the fact that they are females.

The Law

Parliament being cognisant of the seriousness of the offence prescribed the maximum penalty of life imprisonment under s 347 of the Criminal Code Act (Ch 262). Unfortunately, Parliament has also charged the courts with the duty to consider and impose sentences below that by virtue of s 19 of the Criminal Code Act.

The Supreme Court in John Aubuku v The State [1987] PNGLR 267, set the guidelines for sentences in rape cases. In so far has is relevant for the present case, the guidelines for sentence, in an aggravated rape, the Supreme Court said the offence is a serious one and such it requires an immediate punitive custodial sentence starting at 5 years. A much more higher sentence should be imposed where there are aggravating factors such as the use of bush knives or other dangerous weapons.

Subsequent cases have imposed sentence term much higher than the guidelines set in the John Aubuku case. The current maximum for rape with aggravating factor and of the worst type is 15 years as in the Lawrence Hindemba v The State SC593 and 14 years in James Mora Meaoa v The State [1996] PNGLR 280.

These cases acknowledge the fact that rape is a serious crime against women and girls in particular and the community as a whole and are a hindrance to the country's advancement. However, the penalties the courts have been imposing to date, appear not to be deterring would be offenders from committing the offence. The judgement in the Lawrence Hindemba case is the latest response by the Supreme Court, to calls by the community for a tougher penalty. In that case, the National Court imposed a 10-year sentence for an aggravated rape of a small 10-year old girl. The appellant in that case, used a pocket knife to threaten and have sex with the girl by force. The victim was under immense pressure and her vagina was caused to bleed. The Supreme Court dismissed the appeal and in the exercise of its powers under s 23(4) of the Supreme Court Act (Ch 37) increased the sentence to 15 years.

Present Case

In the present case, the appellant repeatedly and without success tried to entice a married woman into having sex with him. Instead of stopping at that, he proceeded to use a bush knife to threaten the victim and raped her. He no doubt, caused immense untold pain and anguish to her family and relatives apart from being traumatised. There is no evidence of the appellant compensating the victim and or her family in any way for the pain and suffering he brought upon them. He says sorry but what value does a mere utterance of sorry has if it is not accompanied by anything tangible to correct the wrong brought upon the victim and her family and relatives. In our view such utterance are mere utterances, which do not have any real meaning but spoken only in a bid to plea for mercy.

The appellant, by way of this appeal, says the 8 years sentence given to him by the National Court is severe. He is, therefore, asking this Court to reduce the sentence to between 5 and 6 years. In his arguments, he raises his mitigating factors, which were taken into account by the National Court before sentencing him. He referred to three cases where he claims sentences of 5 and 6 years were given. However, he has not provided any details about those cases to assist this Court.

On the other hand, Mr. Kaluwin for the State argues that the appellant has not shown what error the learned trial judge committed which behoves this Court to correct. He has referred to the case of Norris v The State [1977] PNGLR 605 at 612-613 per Kearney, J. to support his arguments. He then submits that the learned trial judge did not err when he sentenced the appellant to 8 years as the learned trial judge took into account all the relevant factors both for and against the appellant as well as the relevant sentencing guidelines.

With those submissions we agree. We fail to find how the learned trial judge erred in his judgement and the decision to impose the 8 years sentence. Indeed, the sentencing trend in this sort of cases is on the increase since the Aubuku case as shown above. This is reflective of the fact that the crime of rape is on the increase and the sentences imposed by the courts appear not to be deterring would be offenders from committing such offences. Society is becoming unsafe for our women and girls because of offenders like the appellant. The appellant is very fortunate to have, in our view, received the sentence of 8 years, which is light.

This Court does have the power under s 23(4) of the Supreme Court Act (Ch 37) to increase the sentence, as was done in the case of Lawrence Hindemba v The State (supra). However, this Court was not asked to exercise that power, correctly through a cross appeal on sentence by the State. Instead this Court has been asked to dismiss the appeal and confirm the sentence. Accordingly, for these reasons, the appeal is dismissed and the sentence of 8 years is confirmed.

The formal orders of the Court will be:

1.	The appeal is dismissed.

2.	The sentence of 8 years is confirmed.

Lawyer for the appellant: In person.
Lawyer for the respondent: Public Prosecutor.