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State v Sina (No 2) [2004] PGNC 230; N2541 (21 May 2004)

N2541

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 640 of 2003

THE STATE

-V-

FLOTYME SINA
(No. 2)

GOROKA: KANDAKASI, J.
2004: 19^th and 21^st May

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – One on one rape against married woman – Conviction after trial – No prior conviction – No physical injuries – Customary compensation – 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. Junior Apen Sibu (N0. 2) (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO.1450 of 2003.
The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) CR1483of 2003
The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419.
The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.
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:
N. Miviri for the State
M. Aipe’ei for the Prisoner

21st May 2004

KANDAKASI J: On Wednesday, this Court found you guilty and convicted you on one charge of rape of a married woman contrary to section 347 of the Criminal Code.

After your conviction, the Court administered your allocutus. In your allocutus, you said sorry for committing the offence. You said you are a villager. You have pigs, dogs, goats, a food garden and a coffee garden as well. Your people have paid K300.00 in compensation in a bid to maintain peace after you committed this offence. Your people have tried to take you out of the criminal justice system but unfortunately, for you and fortunately for the criminal justice system they did not succeed.

You said this is your first time to be before this Court. You are concerned and sorry for your family’s well-being as you have been in custody for a long time since your arrest. Your parents separated when you were a small boy. Now you live with your old father. You are married with 3 children with the third being born while you were in custody. Your lawyer added to this by submitting that, you are 29 years old and come from Napamogona village here in the Eastern Highlands Province.

The relevant facts are fully set out in the decision on sentence delivered on 19th May 2004. It is not necessary to restate them except to note the following for the purposes of determining an appropriate sentence for you:

• The victim was walking on a road to go and see her brother following problems with her husband;
• You passed her on her way and decided to rape her;
• You armed yourself with a bush knife, which you used to threaten her; and
• You entered into a struggle with the victim and eventually over powered her and forcefully had sexual intercourse with the victim.
  

The Offence

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."

In The State v. Donald Angavia & Ors (Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004, 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 [1987] PNGLR 267. These cases make 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.

In that regard, I noted that both the National and Supreme Courts have varied and increased the recommended sentences. I noted that, in Thomas Waim v. The State, (02/05/97) SC519, 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."

Almost a year after the decision in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. The Court in that case, surveyed some of the cases decided up to the date of the judgment and 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.

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 has been calling for increases in the kind of penalties imposed. I responded to this 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 State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297, in a case of one on one rape. There, I noted that, the sentences in the past-decided cases are only guides. That is because usually the question of what is an appropriate sentence in each case, is dependant on the particular facts of each case. Therefore, 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 interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders and impose a sentence which may be even higher than one imposed previously if the circumstances of the case so warrant: Mary Bomai Michael v. The State (Unreported judgment delivered on 01/04/04) SC737.

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 (supra) did echo that need. I then observed that the kind of sentences that have been imposed, since even 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 (supra) and imposed varying sentences with the maximum at 25 years. 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 (supra) endorse the views I have expressed.

However, the judges have considered it appropriate to start as low as 5 years (see John Aubuku’s) and are yet to impose the maximum prescribed penalty of life, except in one case, which I will refer to shortly. In the meantime, this serious offence against society is on the increase. In the circumstances, I expressed the view that it is:

"... inappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

Bearing these in mind, I decided to impose the term of 17 years as an appropriate pronouncement against the offence in The State v. Eddie Peter (No.2). 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) (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 (Unreported judgment delivered on 22/05/03) N2380. 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 abduction and rape. The judgment is in circulation as The State v. Ian Napoleon Setep (Unreported judgment delivered on 18/05/01) SC666. 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 repeated 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 (supra). At the same time, it accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment.

I expressed the view 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, (1998) SC564, made that clear in these 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."

I commented that, these principles, in a more practical way acknowledge and allow for an exercise at least, in that limited way, by the people themselves their judicial power. The Constitution does acknowledge and affirms 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 (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

In subsequent judgments of Supreme Court, as in Tau Jim Anis & Ors. v. The State, (25/05/00) SC642, these principles have been cited with approval. Many other judgments of both the Supreme and the National Courts have adopted and applied these principles. Some of these are my own judgments as in The State v. Irox Winston, (13/03/03) N2347, where I said:

"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 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. 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 on a guilty plea. That was in the cases of The State v. Pais Steven Sow (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003. In that case, the offender, a matured 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 because he pleaded guilty and that he was a first time offender, I imposed the 15 years sentence.

On the same day, I imposed a sentence of 13 years after a short trial against a young first time offender who raped his niece. Apart from the breach of trust as a close relative, there were no other aggravating factors. That was in The State v. Junior Apen Sibu (N0. 2) (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO.1450 of 2003. The young age of the offender and absence of any physical injured as well as the absence of a use of a weapon, caused me to impose the 13 years sentence.

Allowing myself to be guided by the same consideration, in The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) CR1483of 2003, 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 where given in view of the different roles each of the offenders played and their ages.

Your Case

In your case, 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 (Unreported judgment delivered on 13/06/03) N2419:

"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."

Another factor that would appear to be in your favour on first sight is your expression of remorse. However, there is no evidence that you personally paid compensation or offered anything tangible to the victim and her husband and other relatives to show your remorse. The K300.00 customary compensation payment I note was to prevent trouble erupting between you and the victim’s side. Hence, I find this was not a tangible demonstration of your remorse for your criminal conduct.

There is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244; Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360. On the strength of these authorities, I find that your merely saying sorry means nothing. Accordingly, it is not a factor in your favour.

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 that in The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366 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 further 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. You had no good basis to put the State and the Court to expense 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 reveal in a courtroom filled with strangers and her assailant. She was in that way forced to face embarrassing questions going into a matter people in our society would find hard to talk about.

Thirdly, both you and the victim were married to your respective wife and husband. When you forcefully had sexual intercourse with her, you threw away your marriage vows if any or simply the trust, love and respect that forms the very foundation of a marriage. You destroyed the trust your wife placed in you and forced at the same time the victim to break hers all for your selfish craving. Given that you were married, I fail to see, why you could not turn to your wife to satisfy your sexual cravings.

Weighing both the factors for and against you as noted above, the sentencing tariffs, the community’s reaction to the offence and the kind of sentence imposed as indicated at the highest by Parliament, demonstrated in the recent amendment to s. 347 in terms of determining sentence, 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. This calculates to 1 year 4 months and 3 days, leaving you with a balance of 15 years, 7 months and 27 days. I order that, you serve that part of your sentence in hard labour at the Bihute Correction Service.
______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

^[1] (No. 27 0f 2002) s. 17.