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State v Haite [2003] PGNC 108; N2383 (22 May 2003)

N2383

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 915 of 2000

THE STATE

-V-

PETER HULI HAHE HAITE

Goroka: Jalina J
2003: 14 & 22 May

CRIMINAL LAW – Particular Offences – Rape – of 11 year old girl – Sentence – Aggravating factors – Young age of victim – Plea of guilty – Prisoner already serving sentence for two separate rapes of young girls – Prevalence of rape of girls of young age – Need for deterrence – Sentence of 20 years appropriate – Criminal Code s. 347.

CRIMINAL LAW – Practice and Procedure – Sentence – Prisoner serving sentences for two separate rapes of girls of young age – Offences committed prior to his conviction and sentence – Whether convictions are prior convictions.

CRIMINAL LAW – Practice and Procedure – Sentence – Prisoner serving sentences for two separate rapes of girls of young age – Whether sentence should be concurrent or cumulative.

Cases cited:
The State –v- Kaudik, [1987] PNGLR 201,
The State –v- Penaias, [1994] PNGLR 48,
James Mora Meaoa –v- The State [1996] PNGLR 280,
Lawrence Hindemba –v- The State [1998] 27th October, SC 593
The State –v- Kunija Osake, CR 694/2002 & dated 22nd May 2003
Maso –v- The State [1991] PNGLR 88

Counsel:
K Umpake for the State
M. Apie’e for the Prisoner

2nd May 2003

JALINA J: This prisoner has pleaded guilty to committing rape upon the victim at the back of the gardens at Asariyufa Village at the outskirts of Goroka town on 19th June 2000. She was then aged about eleven (11) years and was a student at Faniyufa Community School at West Goroka.

Facts put to the Court by the State State Prosecutor for purposes of arraignment show that the prisoner approached the victim who was then aged 11 years and her girlfriend who was also aged about 11 years at Peace Park in Goroka Town as they were returning home after school at Faniyufa Community School where they were students. He falsely represented to them that he was their uncle who knew them but that they did not know him. He told the victim that he had some clothes and money for her which he had left with his wife and that he would take the victim and her friend to his wife so that they can pick up the clothes and money. So they followed him believing what he had told them to be true. When they reached Goroka Market the prisoner told the victim’s friend to leave. He then led the victim to the back of Goroka Market then into Asariyufa Village and into the back of some gardens near the village. Hen then threatened the victim with a screwdriver and had sexual intercourse with her.

The victim, through her statement which is on file, gave a more detailed account of what actually happened that day. It also shows that when the prisoner penetrated his erected penis into her vagina she cried but he took no notice of her. After he had finished having sex with her she found herself bleeding badly and that she had difficulty walking properly. She somehow made her way to Kama Village where she was found by a small boy who took her to his parents who then helped her to her parents. The matter was then reported to police who took her to the Goroka Hospital for medical examination.

The Medical Report of Dr Turharus shows that:

"On general examination she was in a withdrawn and shocked state.

Specific examination revealed bloodstains on either side of her inner thighs with fresh tears of her hymen, interior vaginal wall and moderate amount of semen in the upper third vaginal canal.

A high vaginal swab on gram staining revealed moderate amount of spermatozoa."

The doctor concluded that an act of forceful coitus interruptus had been committed recently.

The maximum penalty for this offence is life imprisonment under Section 347 of the Criminal Code Act subject to the court’s discretion to impose a lesser sentence under Section 19 of the Code. While conceding the aggravating factors such as the young age of the victim and that the prisoner was also serving sentence for two separate rapes of young girls, Mr Apie’e has submitted that leniency be exercised towards the prisoner in view of mitigating factors such as his expression of remorse and his plea of guilty which has not only saved the victim the trauma of recalling the ordeal and suffering the embarrassment of giving evidence in open court about an act which involved the most intimate and most sacred part of her body but also that the Court, the State and the Defence have been saved the time and expense in conducting a trial.

Rape is a very serious crime as can be clearly seen from the maximum penalty of life imprisonment that Parliament has prescribed in Section 347 of the Criminal Code. As I said a while ago in The State –v- Kunija Osake, CR 496 of 2000, the courts have in previous cases sought to bring to the attention of the public particularly men, with a view to getting them to appreciate what rape entails including its antecedent traumatic consequences on the victim as a human being who deserves to be respected I only refer to three cases the statements in which I respectfully adopt and restate.

In The State –v- Kaudik [1987] PNGLR 201, Amet J (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences:

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value."

In The State –v- Penias [1994] PNGLR 48, Injia J said:

Rape constitutes an invasion of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence."

In James Mora Meaoa –v- The State [1996] PNGLR 280, the Supreme Court said:

We also agree with the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person, young or old, who happens to be by, be they on public road, in the gardens or as here on the coast. We agree that the right of all persons, female as well as male not to be assaulted must be clearly stated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all female population regardless of age or background."

Both the National Court and the Supreme Court have called for severe sentences for rape so as to reflect the community’s abhorrence to this despicable crime which is prevalent in this country. Almost every week or month the electronic and print media report this crime which are sometimes committed against people such as nurses and doctors who daily try their utmost best to save our lives and as such deserve our utmost respect but are treated by some men and even some young boys as if their services have no value in society.

Even rape of young girls is becoming prevalent in this country. For instance in The State –v- Kaudik (Supra) 12 years imprisonment on a plea of guilty was imposed on the prisoner who raped a young female.

In James Mora Meaoa –v- The State (Supra) the Supreme Court dismissed an appeal by the prisoner against a sentence of 12 years imposed by the trial judge on him for committing rape upon a 12 year old girl. That case involved a breach of de facto duty the prisoner had towards the victim.

In Lawrence Hindemba –v- The State [1998] 27th October, SC593, the Supreme Court increased the prisoner’s sentence from the 10 years imposed by the trial judge to 15 years for rape committed by the prisoner upon the victim who was 10 years old.

In the present case, whilst I accept and take into account in the prisoner’s favour mitigating factors such as his plea of guilty and his expression of remorse, I consider this to be very serious not only because the crime of rape is very serious but because the victim was very young. She was walking home with her young girlfriend without the slightest imagination that anyone would trick her and sexually assault her. As I said in The State –v- Kunija Osake (supra), the fact that he was a married man as is clear from his answer to Question 26 of the Record of Interview further aggravates the crime. If he wanted sexual gratification, he should have gone to his wife and not the victim. His lunacy has led to the victim sustaining serious injury to her vagina as are revealed by the medical report. I am of the opinion that married men who violate young girls should be given severe punishment so as to sound a warning that the community cannot tolerate such conduct.

Both the National Court and the Supreme Court have also continually warned that sentences for rape are going to increase and I intend to give effect to that in this case. I indicate for purposes of the Criminal Law (Compensation) Act that since rape is a serious crime I have considered payment of compensation as a punishment to be inappropriate.

Whether Offences Committed Prior to Conviction by National Court Constitute "Prior Conviction".

It has been brought to my notice by both lawyers that the prisoner was serving two sentences for rape of young girls on different dates and location. One of the sentences was a period of about 13 years which was imposed by Batari J on 15th October 2002. The other sentence was a period of 15 years which was imposed by Hinchliffe J early this year. The offence dealt with by Hinchliffe J was committed first in time to the one dealt with by Batari J whilst the one before me is the third offence.

The question then arises as to whether one or both of the convictions by Batari and Hinchliffe JJ amount to a "prior conviction" for purposes of sentence for the offence now before me. The word "prior" is defined in the Penguin English Dictionary to mean "earlier", "preceding", "before" or "previous to". So applying that to "prior conviction" the obvious meaning of that phrase would be a conviction recorded by a court of law "prior" to the accused committing the offence for which he stands charged before the Court. Mere commission by him of an offence even if there were several of them(committed) at random or consecutively cannot to my mind constitute a "prior conviction". At best the accused can only be considered to be a habitual offender and as such may be considered to be a danger to the community but not as a person with a "prior conviction" for purposes of sentence.

So in this case the convictions by Batari J and Hinchliffe J are not prior convictions but they can be relevant factors for purposes of sentence.

In all the circumstances of this case, bearing in mind the mitigating as well as the aggravating factors, a punitive, custodial and deterrent sentence should be imposed as I consider the prisoner to be a danger to the community particularly in view of the rape of three (3) girls of young age. The sentence I therefore consider appropriate is one of 20 years imprisonment in hard labour. Since he is serving sentence no deduction is made for period in custody.

Should the Sentences be Concurrent or Cumulative?

I am informed by both lawyers that the 15 years imposed by Hinchliffe J was made concurrent to the 13 years imposed by Batari J. However the offence before me was committed on a different date against a different victim so in all fairness to the State and the victim I cannot impose a concurrent sentence. The sentence of 20 years I have imposed on this prisoner has to be made cumulative to the sentence of 15 years imposed by Hinchliffe, J which I so order. The effect of this is that the total or cumulative sentence this prisoner is to serve would be 35 years.

However bearing in mind the totality principle as set out by the Supreme Court in Mase –v- The State [1991] PNGLR 88, I consider that the total sentence of 35 years would have a crushing effect on the prisoner so I reduce the sentence of 20 years I have imposed by 4 years to 16 years. I therefore order that a Warrant of Commitment be issued for 16 years imprisonment in hard labour cumulative to the 15 years imposed by Hinchliffe J.

If the prisoner is not happy with this sentence he has the right to appeal to the Supreme Court within 40 days from today.
____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor