N2612

PAPUA NEW GUINEA
[National Court of Justice]

CR …….of 2004

THE STATE

ats.

NICK TEPTEP and
KINDIS MIS

Kavieng; Sevua, J
11th & 13th May 2004

CRIMINAL LAW – Sentence – Rape – Pack rape – Guidelines – Circumstances of aggravation – Suggested guidelines no longer applicable – Sentence 14 years

Cases Cited:
John Aubuku v. The State [1987] PNGLR 267
The State v. Peter Kaudik [1987] PNGLR 201
The State v Michael Amuna Koupa [1987] PNGLR 208
The State v Thomas Waim [1995] PNGLR 187
The State v. Patrick Lawrie & Ors [1995] PNGLR 195
R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609
R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985

Counsel:
L.Rangan for State
A.Turi for Prisoner

13th May 2004

SEVUA, J: On the 11th May 2004, the accused, Nick Teptep pleaded guilty to a charge of rape contrary to s. 349 (2) of the Criminal Code (Sexual Offences and Crimes Against Children ) Act 2002, and I convicted him of rape. I reserved judgment on sentence to this morning.

The State alleges that on the evening of 15th June 2003, at Lihir Island, New Ireland Province, the accused Kindis Mis and the prosecutrix, Julie Komgoi were crossing the golf field when they met the accused Nick Teptep. The accused, Teptep then forced Julie Komgoi onto the ground. The accused Kindis Mis came and held down the victim’s legs to enable Teptep to have sexual intercourse with the victim. Kindis held the victim’s legs down whilst Teptep had sexual intercourse with the victim without her consent. It is also alleged that Teptep was in the company of Kindis Mis.

The State further alleges that Kindis Mis did not have sexual intercourse with the victim, however, by holding the victim’s legs down while Teptep had sexual intercourse with her, he (Kindis Mis) was assisting Teptep, therefore is caught by the operation of Section 7 of the Criminal Code. It is further alleged that Kindis Mis was in a position of trust over Julie Komgoi and she trusted that he would take care of her that time. It is alleged that Kindis Mis was in the company of Nick Teptep that time.

On arraignment, the accused Nick Teptep pleaded guilty as I have alluded to and was dealt with accordingly. The accused, Kindis Mis pleaded not guilty and was remanded in custody to appear at his trial before the next sittings the National Court in Kavieng. This course was taken because I had already read the depositions on the basis that both counsels had indicated that the matter would be a plea. In fairness to the co-accused, Kindis Mis, and to avoid any allegation of bias and unfairness to him, it was proper that his trial be adjourned before another Judge and so I so ordered.

This judgment on sentence is therefore only in respect of the prisoner, Nick Teptep.

As I alluded to earlier on, the accused pleaded guilty and offered to remain silent in allocutus and allowed his counsel, Ms. Turi to speak on his behalf. Counsel commenced her submissions with the personal antecedent of the accused. He is 19 years of age and resided with his parents at Kanaiye village in Lihir Island. He is of the Catholic faith and was educated to Grade 10. At the time of committing this crime, he was employed as a Shop Assistant by Island Sports Store at Lihir Island.

From instructions, Ms. Turi made further submissions as follows. The victim, Julie Komgoi was the accused’s girl friend. On the evening the prisoner met the victim with Kindis Mis, he asked her if they could have sexual intercourse but she refused him therefore the accused forced himself upon her and had sexual intercourse with her without her consent. The accused denied assaulting (hitting) the victim but admitted that he forced the victim to have sex with him. 

It was submitted that the maximum penalty for this offence is life imprisonment; however the Court has discretion under s. 19 of the Code to impose a sentence other than the maximum. Counsel cited John Aubuku v. The State [1987] PNGLR 267 and referred to the guidelines the Supreme Court established therein. Counsel emphasized those guidelines, which I do not intend to reproduce here, suffice it to say that, they are the guidelines the Supreme Court said are to be taken as appropriate to sentencing for rape and these are enumerated (1) to (7) inclusive on pages 1 and 2 of the judgment in the Access to Laws compact disc. I am unable to cite the page numbers in the actual report because the library here does not have most of the reports.

There are other cases, some subsequent to that case that the National Court has adopted the principles of sentencing established in that case following The State v. Peter Kaudik, [1987] PNGLR 201. Those that easily come to mind are The State v. Michael Amuna Koupa, [1987] PNGLR 208; The State v. Thomas Waim, [1995] PNGLR 187; and The State v. Patrick Lawrie & Ors. [1995] PNGLR 195.

In my view, the most important principle to be reiterated here is what the Court said in Peter Kaudik (supra), and I adopt that here to highlight the fact that rape is an abhorrent and heinous crime. The Court said, "the offence of rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances." That statement of the law was adopted by the Court from the English case of R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609, and has been adopted and applied in many subsequent cases. In my view, it must be the cardinal principle of sentencing in rape cases and I would adopt it here as I have in other rape cases. The Court in that case also set out some very useful and important guidelines for sentencing for pack rape. Some of those principles were later expanded by the Supreme Court in Aubuku (supra). The Supreme Court in Aubuku said, "the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances." The Supreme Court suggested a starting point of 5 years whereas the National Court in Kaudik suggested a starting point of 8 years. My view is that both suggestions are no longer relevant and suitable to the circumstances of the country today, particularly when rape and pack rape have become very prevalent and the community has had enough of it. I am of the view that the Courts should be looking at life imprisonment if not very long terms of imprisonment to deter young people from committing such a heinous crime. Recent sentences by the Courts have departed from the suggested starting point because they are inadequate and inappropriate today.

One of the relevant principles in those cases is that the sentence must be substantially higher where there are circumstances of aggravation. In Kaudik, the Court said, "where any or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point" and then the Court went on to list the different aggravating factors starting with "violence over and above the force necessary to commit rape," which I consider relevant in the present case. The Supreme Court in Aubuku also said the same thing. I note that some of these principles were adopted from two well known English cases which have formed part of our precedent and underlying law in the sentencing for the crime of rape. They are R v Roberts (supra) and R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.

I set out what I perceive to be one important principle that must be stated in all rape cases, and which I have adopted and applied in other cases. I adopt the same statement of law in this case because I believe it must be reiterated in all rape cases to bring home the message that rape is heinous and abhorrent and it is an abuse of the worse kind of the person of the victim and a violation of her human dignity. Amet, J (as he then was) cited it with approval in Kaudik while the Supreme Court also paraphrased and applied it in Aubuku. It is a statement from the English case of R v Billam (supra) at 350:

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse, associated violence or force and in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy. We do not believe this latter fear should be under-estimated because abortion would usually be available. This is not a choice open to all women and it is not a welcome consequence for any. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and the victim. We also attach importance to the point that the crime or rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which we attach considerable value."

In applying those principles in the present case I consider that this is not an ordinary run of the mill rape case. There are circumstances of aggravation present that they take this case out from the ordinary case without any aggravating or mitigating features. 

I refer to the evidence in the depositions and particularly the evidence of the victim herself. She said as she and Kindis Mis were walking along the golf field, they met Nick Teptep. Both Nick and Kindis conversed in their language though she did not know what they were talking about. After their conversation, the victim and Kindis left Nick and walked on However, Nick followed them. As the two accuseds stood and conversed again in their language, the victim walked away to the centre of the golf field. It seems that she was walking back to them when she heard Nick called out to her and said he wanted to kiss her. It was then that she turned around and walked away from the two accused persons.

The accused, Nick Teptep then ran after the victim and pulled her back after grabbing hold of her. She called out to Kindis that they should go on, however Kindis did not listen to her and started walking to Sakias’ house. In the meantime, Nick had grabbed the victim who struggled with him, but the accused threw her down onto the ground on a slope on the golf field and then sat on her stomach. The victim cried and tried to remove the accused from her, however the accused called Kindis Mis over. Kindis Mis came to them then held onto both of the victim’s legs and held them down. He (Kindis) then started to remove her trousers and pants. The victim continued crying, but the two accuseds kept on holding her down firmly. Eventually, Nick removed her trousers and had sexual intercourse with her. After he finished, he told Kindis to have his turn. Kindis then removed his trousers and tried to have sex with the victim. At that point in time, Nick removed his hands on the victim who fought with Kindis and pushed him away from her.

I consider therefore that the circumstances of this case amounted to a pack rape therefore the sentence appropriate for a pack rape must to be imposed. While it is true that Kindis Mis has pleaded not guilty and his case adjourned to the next sittings for trial, I am of the view that his actions in readily assisting the accused, Nick Teptep, made it a pack rape warranting a sentence that is usually imposed on a pack rape.

Counsel for the accused submitted that the accused denies assaulting the victim, but admitted forcing her to have sex with him. Counsel also submitted that the victim was the accused’s girl friend and that they had had sexual intercourse once previously. I have great difficulty in believing and accepting that the victim was the accused’s girl friend because if it was true, why did he force her to have sex with him? That kind of conduct by a boyfriend, in my view, flies in the face of common sense and logic. 

I do not accept that for three reasons. First, he grabbed the victim and threw her down then sat on top of her. That is not how a person would treat his girlfriend. Second, he engaged the help of his friend, the co-accused, Kindis Mis, to come and hold the victim’s legs down whilst he raped her. Again that is not what a boyfriend would normally do to his girl friend. Finally, this is a recent invention because he did not tell the police that the victim was his girlfriend. Whilst the Court acknowledges that the accused was exercising his right to remain silent, the least he could have done was tell the police at the beginning of the interview. The accused has advanced no explanation as to why he would do what he did to the victim who was supposed to be his girl friend. The Court therefore rejects that submission.

The Court accepts the evidence of the victim that I have alluded to. I am satisfied that there are circumstances of aggravation in the perpetration of this rape that the sentence must be substantially higher. I accept that the co-accused actively participated in the commission of this crime and that it was a pack rape. I am of the view that the force used was over and above the force necessary to commit rape. I have no doubt that the conversations between the two accused persons in their own language involved a degree of planning and a conspiracy to rape the victim. That is why Teptep followed the victim and Kindis and Kindis readily assisted Teptep.

In mitigation, I take into account the factors submitted by counsel. The prisoner pleaded guilty; the guilty plea has avoided a trial which has saved the victim from reliving the trauma; he is young, 19 years old, no physical injury of any significance was caused to the victim; he is a first offender and is remorseful.

However, in adopting the principles I have cited from the other cases, especially the existence of aggravating circumstances warranting a higher sentence, I am of the view that the suggested guidelines are outdated and no longer applicable to the circumstances of the country today. Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.

The maximum penalty under s. 347 (2) of the amended provision is life imprisonment. In my view, that punishment should change.

In all the circumstances, and believing in the principle that rape is a very serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances, I see no exceptional circumstances in your case. I therefore sentence you to 14 years imprisonment in hard labour and order that your cash bail of K300.00 be refunded to you.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor