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State v Sitban (No 2) [2004] PGNC 206; N2566 (11 June 2004)

N2566

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 682 of 2000

THE STATE

-V-

LUKE SITBAN
(No. 2)

WEWAK: KANDAKASI, J.
2004: 7th and 11th June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – One on one rape against 10 years old girl – Conviction after trial – No prior conviction – No physical injuries – No customary compensation – No remorse expressed - Prevalence of offence – Meaning of recent amendments to penalty provision – Aggravated rape sentence start at 15 years – Sentence to reflect recent legislative changes – Sentence of 17 years imposed - Criminal Code ss. 347(1).

Cases cited:
The State v. Donald Angavia & Ors (Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004.
John Aubuku v. The State [1987] PNGLR 267.
Thomas Waim v. The State, (02/05/97) SC519
Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593.
The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.
Mary Bomai Michael v. The State(Unreported judgment delivered on 01/04/04) SC737.
The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.
The State v. Ian Napoleon Setep (Unreported judgment delivered on 18/05/01) SC666.
Public Prosecutor v. Don Hale, (1998) SC564.
Re Application by Anderson Agiru (Unreported judgment delivered on 08/10/01) SC671.
Application of John Mua Nilkare (Unreported judgment delivered on 15/04/97) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Tau Jim Anis & Ors. v. The State, (Unreported judgment delivered on 25/05/00) SC642.
The State v. Irox Winston, (Unreported judgment delivered on 13/03/03) N2347.
The State v. Pais Steven Sow (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003.
The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) CR1483of 2003
The State v. Flotyme Sina (Unreported judgment delivered on 21/05/04) N2541.
The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419.
The State v. Lucas Yovura (Unreported and judgment delivered 29/04/03) N2366.
Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.

Counsels:
J. Wala for the State
L. Siminji for the Prisoner

11th June 2004

KANDAKASI J: On Monday this week, the Court found you guilty and convicted you on one charge of rape of a then small schoolchild in 1995 contrary to section 347 of the Criminal Code.

After your conviction, the Court asked you to address it on your sentence. You said you would appeal against the decision on verdict. You then told the Court that you are married with 4 children, one of whom is in school. Also, you told the Court that both of your parents are deceased. You have a brother who is alive and lives in the village. Further, you told the Court that you have a tradestore, 2, 447 vanilla trees and 300 cocoa trees. Finally, you asked the Court to be lenient with you by letting you out on probation so you can take care of your family, and properties.

The relevant facts are fully set out in the decision on verdict delivered on 7th of this instant. Therefore, it is not necessary to restate them except to note a few of them for the purposes of determining an appropriate sentence for you. Firstly, the victim was a small girl then attending grade one in the village community school. She was on her way home from the school after being with her teacher. You saw her walking along the road alone. So, you followed her some distance away and eventually grabbed and pulled her into the nearby bushes. She tried to scream for help and you got a shirt and blocked her mouth with it. When in the bushes, you forcefully tore her trousers down and removed her underwear. Then you proceeded to have sexual intercourse with her. As you did, she went conscious for a while. By the time she regained consciousness, you finished and she went to the village crying and reported the matter to the village leaders.

The village leadership tried to resolve this matter through mediation on the same day of the offence. However, you escaped and were on the run after admitting to raping the victim. The police arrested you more then once some time later and you escaped from lawful custody about three times, resulting in the charging and conviction over one of them attracting a sentence of 6 months.

You expressed no remorse at all and showed no indication of a willingness to take responsibility for your unlawful conduct. Consistent with that attitude, you denied the charge and forced the victim to come to Court and testify against you, both before her assailant and strangers. In so doing, you cared less over the fact that the victim is now married and is living with her husband and own family.

The Offence and Sentencing Tariffs

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002[1] creates and defines the offence of rape in these terms:

"347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

Recently in The State v. Donald Angavia & Ors,[2] I considered what could be the meaning and or purpose of this amendment to the law. I then held that:

"What this means in my view is that, where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because, it makes no difference between the previous position and the new provisions."

I took that position, after having regard to the past sentencing guidelines set by Supreme Court judgments as in John Aubuku v. The State.[3] I then observed that this case makes it clear that the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape in less serious cases to life imprisonment in serious cases. At the lower end of the range are cases with no aggravating factors while those on the higher end have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.

Subsequently, as both your lawyer and that of State submit that National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State,[4] the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:

"This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed."

This trend was followed by the Supreme Court almost a year after the decision in Thomas Waim v. The State[5] in Lawrence Hindemba v. The State,[6] by increasing a sentence of 10 years to 15 years. That was also in a case of guilty plea. After surveying some of the decisions up to the date of the judgment, the Supreme Court said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

In arriving at its decision, the Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. The rape was committed in the presence of the victim’s schoolmates who ran away.

As I noted elsewhere, this sentence was in 1998 and the offence of rape has not decreased since then. Instead, it has been on the increase and the society is continuously calling for increases in the kind of penalties imposed. I started to respond to these calls by imposing a sentence of 17 years, for a rape of a young pupil in breach of a de factor trust with some violence and threat after a trial. That was in the case of The State v. Eddie Peter (No 2),[7] in a case of one on one rape. There, I noted that, the sentences in the past-decided cases are only guides as the question of what is an appropriate sentence, is dependant on the particular facts of each case. Hence, I have said that, in the exercise of the discretion vested in him or her under s. 19 of the Criminal Code, a sentencing judge always has to take into account the prevalence of the offence and the competing interests of the society and the offender. The society’s interest is to have it protected from offenders, while the interest of the offender is to rehabilitate. In the exercise of that discretion, a judge may impose a sentence, which may even be higher than one, imposed previously if the circumstances of the case so warrant: See Mary Bomai Michael v. The State.[8]

Further, I noted that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. I attributed this increase in part to the kind of the sentences imposed up to then, and opined that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. This therefore, calls, for a serious re-examination of the kind of sentences imposed to date. In that regard, I noted that the Supreme Court in Lawrence Hindemba v. The State[9] did echo that need. I then observed that the kind of sentences that have been imposed, since even the Lawrence Hindemba case, have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

Furthermore, I note that, even though the Courts have issued numerous warnings of increases in the sentences, they have failed to follow that through with appropriate sentences. Justice Sevua did try to meaningfully review and impose a sentence much higher than those imposed before, in his judgment in Thomas Waim v. The State[10] and imposed varying sentences with the maximum at 25 years for a worse case of gang rape. Unfortunately, the Supreme Court struck it down to 18 years on the basis that the sentence imposed by the National Court was a "quantum leap."

I considered the concept of "no quantum leap" and noted that, there was no expressed legislative prohibition against "quantum leaps." Instead, Parliament after having considered all things, prescribed the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter a range. Recently, the Supreme Court in Mary Bomai Michael v. The State[11] endorsed the views I have expressed.

Bearing these in mind, I decided to impose a term of 17 years in the The State v. Eddie Peter (No.2)[12] case. I also decided to impose that term to meet the society’s call for tougher penalties to deter other would be offenders and consequently help restore the safety of our girls and women, both on and off the streets and in all manner of relationships.

Since my judgment in The State v. Eddie Peter (No.2)[13] (supra), there have been no significant increases in the sentences by the National Court. The only exception to that is the judgment by Jalina J in The State v. Kunija Osake.[14] In that case, his Honour imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

The other exception is the imposition of a life sentence by Salika J., which went on appeal to Supreme Court. In that case, the Supreme Court delivered a judgment, which is one of the latest judgments of the Supreme Court on gang abduction and rape. The judgment is in circulation as The State v. Ian Napoleon Setep.[15] That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant’s wife. The National Court imposed the maximum penalty of life imprisonment but the Supreme Court on appeal had it reduced to 25 years following the no quantum leap principle in Thomas Waim v. The State.[16] At the same time, it accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment.

I have already expressed the view elsewhere that, the two National Court judgments cited above does in fact progressively increase the sentences in rape cases. Despite the need for a progressive increase in view of the increase and prevalence of the offence, some National Court judges have been imposing lenient sentences. Recent examples of these are the fully suspended 6 years sentence imposed by Manuhu A.J., which has received much public outcry and the 7 years sentence imposed by Justice Lenalia in Kokopo, which has received an adverse editorial in the National Newspaper.

I have also said that, whilst I agree that such outcries should not automatically influence a sentencing judge, the judge should nevertheless note that this is an indication and response by the community to the kind of sentences imposed. The sentencing power, which the judges exercise, is a power that belongs to the community and as such they should respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases. In expressing these views, I noted that the Supreme Court in Public Prosecutor v. Don Hale,[17] made that clear in this terms:

"The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered."

Commenting on this, I said this is a more practical way of acknowledging and allowing for an exercise at least, in that limited way, by the people themselves their judicial power. The Constitution does acknowledge and affirms that in s. 158(1) and elsewhere that the judicial power that the Courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru[18] and Application of John Mua Nilkare[19] citing with approval Avia Aihi v. The State.[20]

In subsequent judgments of both the Supreme and National Court, as in Tau Jim Anis & Ors. v. The State,[21] these principles have been cited with approval and applied. Following this line of authorities, I said in The State v. Irox Winston, [22] that:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

Looking back from here to the kind of sentences imposed up to the date of the amendments to s. 347 of the Code, shows that, a vast majority of the sentences in rape cases even in the worse of cases failed to meet the call for stiffer sentences. This resulted in the enactment of the amending legislation. In my view, the people through Parliament have said the kinds of sentences imposed by the Courts to date are inappropriate and insufficient. Therefore, they have now stipulated that sentences in aggravated rapes are to start at 15 years and sentences for rapes without aggravation could be up to 15 years.

I tried to accommodate that legislative wish by imposing a sentence of 15 years on a guilty plea by an adult male offender in aggravating circumstances. That was in the case of The State v. Pais Steven Sow.[23] In that case, the offende, a mature single man related to the victim abducted and raped a married woman in the presence of two of the victim’s small children. The offence was committed in a breach of trust situation. I would have imposed a sentence beyond 15 years but for his guilty plea.

Allowing myself to be guided by the same considerations in The State v. Eki Kondi & 4 Ors (No.2),[24] I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively to a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences were given in view of the different roles each of the offenders played and their ages.

Then very recently in The State v. Flotyme Sina,[25] I imposed a sentence of 17 years. Before arriving at that sentence, I had regard to the sentencing trends and tariffs as set out above. That was in a case of one on one rape of a married woman. The prisoner used a bush knife to threaten and secure a forceful sexual intercourse with the victim. A small amount of compensation to avoid trouble was paid by the prisoner’s side to the victim’s side. After the Court found him guilty, prisoner said sorry to the Court for taking its time and putting the victim to further trouble in coming to the Court and reliving the attack on her.

Your Case

In your case, I note your case is closer to the last mentioned case. The only significant difference is that the victim was a married woman. Additionally, there was use of a bush knife to threaten the victim. Further, there was some compensation paid and an expression of remorse by the prisoner after the Court found him guilty and convicted him. In your case, you raped a small schoolgirl. There was a huge age difference between you and her in that you were much older than she was. You expressed no remorse even after the Court found you guilty after a trial. You paid no compensation and you ran away from prosecution and from lawful custody three times.

I note and take into account your personal background as noted above. Of particular consideration is the fact that you are first time offender. This means you have been a good law abiding citizen before the commission of this offence.

The next thing to note in your favour is that, this was not a gang rape. Instead, it was a case of one on one rape. However, that does not make the offence you committed any less serious. I also note that, your victim suffered no physical injury. Nevertheless, this does not mean that she suffered or will not suffer any psychological or emotion injury because of your sexual attack on her. As I said in The State v. Damien Mangawi[26]:

"It is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories. Further, as I noted in The State v. Peter Yawoma (Unreported judgment) N2032, even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. This means, victims of such offences are left with no assistance at all."

Turning now to your personal backgrounds and needs as well as that of your family, I note that the law is also clear. I restated the law in The State v. Lucas Yovura[27] in these terms:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgement delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

There is no argument against an application of these principles to your case. Hence, whilst I note your personal background and needs, they cannot be factors in your mitigation, because they are the very consequences of your own action.

Against the factors in your favour are a number of other factors against you. Firstly, the offence of rape is on the increase and that it is a very prevalent offence as noted already. This is despite the increase in the kind of sentences imposed to date. I note there is rightly no dispute by you through counsel that this is the case. Given the numerous calls for stiffer penalties throughout the country, Parliament has now intervened as also noted above. The onus is now on the Courts to similarly, act.

Secondly, you pleaded not guilty to the charge, without having any good basis to put the State and the Court to the expenses of conducting a trial when you had no evidence to challenge the charge and its basis. Your denial of the charge also meant the victim had to come into Court and relive in a courtroom filled with strangers and her assailant what you did to her. She was in that way forced to face embarrassing questions going into a matter people in our society would find hard to talk about. By your denial, you in fact cared less of the fact that the victim is now married and that it would not be advisable to force her to come to Court and talk about your sexual attack on her.

Thirdly, you were much older than the victim was. She was only a small grade one student and a child. You therefore had no difficulty forcefully securing the sexual intercourse of her.

Finally, after the Court found you guilty, you expressed no remorse. Instead, you maintained your innocence and talked about the needs of your own family and your properties. You then asked the Court to be merciful to you, as if you showed any mercy toward the victim when you raped her, and then forced her to come to Court and relieve all of that before her assailant and total strangers.

To arrive at an appropriate sentence for you, I weigh both the factors for and against you as noted above. I also take into account, the sentencing tariffs, the community’s reaction to the offence and the kind of sentence imposed to date. I further take into account the reasons for the amendments the highest authority of the land Parliament has introduced to s. 347 of the Code, and note that you have been charged under the new law but for the reasons for change in the sentencing regime. Taking all of these into account, I consider a sentence of 17 years appropriate. From this, I order a deduction of the period you have already spent in custody waiting for your trial and further order that, you serve the balance of your sentence in hard labour at the Boram Corrections Service.
_____________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

^[1] (No. 27 0f 2002) s. 17.
^[2] (Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004.
^[3] [1987] PNGLR 267.
^[4] (02/05/97) SC519.
^[5] Ibid.
^[6] (Unreported judgment delivered on 27/10/98) SC593.
^[7] (Unreported judgment delivered on 12/10/01) N2297.
^[8] (Unreported judgment delivered on 01/04/04) SC737.
^[9] Op ct n 6.
^[10] Op ct n 4.
^[11] Op ct n 8.
^[12] Op ct n 7.
^[13] Ibid.
^[14] (Unreported judgment delivered on 22/05/03) N2380.
^[15] (Unreported judgment delivered on 18/05/01) SC666.
^[16] Op ct n 4.
^[17] (1998) SC564.
^[18] (08/10/01) SC671.
^[19] (15/04/97) SC536.
^[20] [1981] PNGLR 81.
^[21] (25/05/00) SC642.
^[22] (13/03/03) N2347.
^[23] (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003.
^[24] (Unreported judgment delivered on 25/03/04) N2543.
^[25] (Unreported judgment delivered on 21/05/04) N2541.
^[26] (Unreported judgment delivered on 13/06/03) N2419.
^[27] (Unreported and judgment delivered 29/04/03) N2366.