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State v Osake [2003] PGNC 121; N2380 (22 May 2003)

N2380

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 694 of 2001

THE STATE

-V-

KUNIJA OSAKE

Goroka: Jalina J
2003 : 14 & 22 May

CRIMINAL LAW - Particular Offences - Rape - of 11 year old girl - Sentence - Aggravating factors - Young age of victim - Prisoner also in position of trust towards victim - Plea of guilty - First Offender - Prevalence of rape of girls of young age - Need for deterrence - Sentence of 18 years appropriate - Criminal Code S. 347.

Cases Cited:
The State -v- Kaudik [1987] PNGLR 201,
The State -v- Penias [1994] PNGLR 48,
James Mora Meaoa -v- The State [1996] PNGLR 280,
Lawrence Hindemba -v- The State [1998] 27th October, SC593

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

22nd May 2003

SENTENCE

JALINA J: This prisoner has pleaded guilty to committing rape upon the victim in her parents house at Wahuto Village, Asaro, in the Eastern Highlands Province on the night of 20th April 2000. She was then aged about eleven (11) years and was a student at Anengu Community School also in the Asaro area.

According to the victim’s evidence which is contained in her statement and the prisoner’s responses when questioned by police during the record of interview, it appears that the prisoner was married to one of the victim’s sisters and at that time his family was accommodated by the victim’s family as he was in the process of building a new house.

On the night in question, the victim was sleeping alone; her parents having gone to spend the night with another family. So the prisoner was in a position of trust towards the victim when he committed this crime. She was awaken by his penis in her vagina although initially she was fast asleep and did not realise him get on top of her and insert his erected penis into her vagina. He woke up early in the morning and left the house. She soon found herself being unable to walk properly. She found also that her skirt and shirt were stained with blood. She changed into clean clothes and then hung her stained clothes on the laundry line which her mother saw and then questioned her whereupon she told her what had happened, thus resulting in her mother reporting to police and the subsequent arrest of the prisoner.

The prisoner has admitted this offence to the police and this to court which of course is a factor in his favour as it has has saved this young girl the trauma of giving evidence in open court and not only suffering embarrassment in relation to a matter that involved the violation of the most intimate and sacred part of her body but it also saved the State, the Defence and this court the time and expense in conducting a trial.

The medical report revealed the following in and around her genital area apart from the fact that she was found not to be walking properly due to a sore perineum and laceration of the hymen. The area of the perineum and her anus was found to be stained with blood through bleeding from the torn hymen and lacerated vaginal wall. White patches of fluid spots were found in the area near the perineum and thigh. The vaginal wall was found to have lacerations and the hymen was torn. Sperm was found to be present but dead. She was however fully alert but that is not to say that she was not traumatised by what had happened bearing in mind that her attacker was not someone unknown to her but someone known to her and was in a position of trust towards her and members of her family.

With regard to his personal antecedents, his lawyer Mr Apie’e has told the court that the prisoner comes from a family of five (5) brothers and three (3) sisters of which he is the 5th born. He is married with a three (3) year old daughter but his wife has left him with the child. His parents are alive but are very old. They walk around with the aid of a walking stick. He has four (4) coffee gardens and fifty (50) goats which he has left behind. He has had no formal education as well as formal employment. He has no prior convictions and has expressed remorse for what he has done. At the time of the offence he was aged about 28 years. So the victim at that time at age 11 was 17 years younger than him. I do note his personal antecedents but I must say that welfare of his family and his business interests should have been on his mind before he set out to commit a very serious crime such as rape, particularly of a very young girl who was in a position of trust towards him.

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 in a position of trust towards the victim which he has breached, Mr Apie’e has submitted that leniency be exercised towards the prisoner in view of mitigating factors such as the offence being unplanned, the prisoner’s expression of remorse, 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.

Mr Apie’e further submitted that leniency be exercised towards this prisoner in view of this being his first offence.

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. 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 women’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.

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 the prisoner for committing rape upon a 12 year old girl. That case involved the 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 prisoners favour mitigating factors such as his plea of guilty, his expression of remorse and that this was his first offence, 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 sleeping alone in her parents' house without the slightest imagination that anyone would sexually assault her. It was her home and she no doubt thought that she was safe. Her parents had offered the prisoner accommodation, and her parents and her had not had the slightest fear that the prisoner, who was related to her by marriage to her elder sister, would behave in a manner that only animals could be expected to behave. The fact that he was a married man further aggravated the offence. If he wanted sexual gratification, he should have gone to his wife, the victim’s elder sister 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 punishment to be inappropriate.

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 and the period I consider appropriate is one of 18 years imprisonment in hard labour. I deduct from that sentence the 2 years and 1 month he has spent in custody which leaves 15 years and 11 months in hard labour.

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