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State v Gabing [2005] PGNC 23; N2943 (26 October 2005)

N2943

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 4 of 1999

THE STATE

-V-

MUFE GABING

LAE: KIRRIWOM, J

2005: 11 & 26 October

Cases cited:
Heni Pauta & Kenneth Susuve & In the Matter of an Application by the Public Solicitor under section 51 of the Constitution [1982] N337 (No 2)
The State v. Peter Kaudik [1987] PNGLR 201
The State v. Michael Amuna Kaupa [1987] PNGLR 208

Counsel:
Mr J. Done for the State

Ms. S. Maliaki for the Accused

26th October 2005

SENTENCE

KIRRIWOM, J: This prisoner appeared before me on 10th October 2005 and pleaded guilty to one count of rape. The offence alleged was committed on 16th May 1998 at Lae. The prisoner, then aged 15, was allegedly a member of a group of young boys who accosted the victim in the company of two young boys. After chasing away the boys, he and his friends took the victim away by force at Peter’s Block Kamkumung and all took turns raping her. The prisoner was said to be the second person the victim recognized who had sex with her.

This case was discovered very recently by chance by the staff at the Court registry. It explains why the case is coming before the Court for the first time although the incident took place over seven years ago.

The prisoner was committed to stand trial for rape on 27th October 1998. Because of his young age he was released on K50 cash bail by the then Children’s Court at some point in time. After that the system lost him altogether. I am told he was arrested for this offence on 23 July 1998 and taken before the Children’s Court on 30 July 1998 and was released on bail after spending one week in custody. Since his committal by the District Court in October 1998, the matter was called twice before Sakora J on 8 February 1999 and 11 October 1999. Bench Warrant was issued by His Honour on the first mention day when he failed to appear. After a lapse of close to six years the case surfaced before me on 7 July 2005 as a bench warrant matter although he was appearing from custody.

The prisoner is presently I am told serving a sentence in prison for another offence that was committed subsequent to the present charge for rape. It is alleged that the prisoner was involved in robbery on or about 25 May 2001 and was dealt with by the Court. He is therefore serving a sentence for that offence which is due to expire in November 2005, which is only days or weeks away from today. I am told, although no warrant was produced, that he was sentenced to six years on 13 August 2002 by Injia J (as he then was).

It is very unfortunate that the prisoner is slapped with another charge of very serious nature when he is only days or weeks away from freedom after being in prison for the last 3 – 4 years. State authorities have a responsibility to ensure fairness and justice in pursing criminal proceedings. The aim of criminal law is to punish those who break laws of the State in a fair and just manner in accordance with the rule of law and humanity. Criminal law must not be used as a tool to exert injustice or undue persecution of a person.

In this case the prisoner may feel unfairly and harshly dealt with at the hands of the law because after serving 3 – 4 years in prison for an offence, he is entitled to expect to return home and reunite with his family once again. There can be no justice to him to be slapped with another lengthy term of prisoner sentence for an offence that took place years ago, about the same time or prior to the one he had just about served his punishment for.

I make this observation in the light of what the former Chief Justice Sir Buri Kidu said in Heni Pauta & Kenneth Susuve & In The Matter of an Application by the Public Solicitor under section 51 of the Constitution [1982] N337 (No.2) to enforce certain Constitutional rights of the two applicants, where Sir Buri when awarding exemplary damages against the State, said:

"Of all the rights and freedom guaranteed by the Constitution of PNG, the ones relating to those who are detained by the authorities require, in my opinion, the most protection. I hold no qualms about this - a person deprived of his ordinary rights and freedom is restricted, by virtue of being confined, from communication with the outside world. It rests with the authorities such as the Courts to ensure that they are protected and their rights respected. Constitutional guarantees are of no effect if judicial officers and other authorities do not do their duty.

Days have gone when people can say that those incarcerated lose their liberties and freedoms once the prison doors have closed behind them. The Constitution has made sure that such attitudes do not obtain in Papua New Guinea."

Applying the same reasoning in this case, the fact that the prisoner is serving sentence for a serious offence does not render him ‘rightless’ to be treated with oblivion and disregard and be thrown back into jail just as he is about to have his freedom because he has an outstanding charge that has not been dealt with by the Court.

I do not really know where the fault lies. The prisoner has not through his lawyer explained to me what happened although the impression I am given is that the prisoner is the architect of his own misfortune. This is consistent with the file notation of 8 February 1999 when bench warrant was issued for his arrest after he failed to appear in Court. But it does not explain why the matter was allowed to procrastinate since 25 May 2001 when he was apprehended and charged for another offence and subsequently convicted and sentenced for it. He should have easily been identified there and then and dealt with promptly for this matter too.

The prisoner is now 23 years old. At the time of the offence in 1998 he was 15. He was residing with his parents at Peter’s Block Kamkumung when he got into this trouble. He is a member of the Lutheran Church and completed Grade 7 at Bumayong Provincial High School. He left school at that grade due to school fee problem. This young man had not made a good start in life. After leaving school, he went straight into a life of crime by mixing with bad company and engaging in group activities that landed him in prison where he has been since. He comes from a urban family where his father was the bread winner of the family from his employment with Kambang Holdings but has since finished work and now lives in the village in Finschafen.

The offence he committed in the company of other boys is a very serious offence. It is called a pack-rape. Pack rapes have always attracted heavy penalties. This is clearly expressed in the case of The State v. Peter Kaudik [1987] PNGLR 201 where the prisoner was sentenced to 12 years in hard labour and The State v. Michael Amuna Kaupa [1987] PNGLR 208 where the prisoner was also given 12 years for rape.

I am mindful of the sentencing guidelines set out in Kaupa’s case. I do not consider the guidelines to be wholly applicable in this case due to the circumstances I have already highlighted.

The victim in this case was 13 years old at the time of this offence. The prisoner was 15 while his other accomplices were aged between 13 and 14. There were four of them altogether. The prisoner was the oldest of the four.

I note from the Pre-Sentence Report that the victim has since moved on and got married. If there has been any lasting impairment to the victim’s life, I am unable to know without any victim impact statement.

In considering what is an appropriate punishment, I bear in mind the prisoner’s young age at the time of the offence, prior good record, cooperation with the police as is shown in his record of interview, his plea of guilty which has saved the State time and money in looking for witnesses to prosecute this case and more so the long delay in the prosecution of this case. This factor will determine the length of sentence that I will impose as I try to balance the interest of justice and the public interest of prosecuting those who break the laws of the State.

I also bear in mind that the victim was not physically harmed in anyway apart from being sexually attacked by the prisoner and his three accomplices each taking turns while the others held her down and enabled the other to effect penetration.

Considering the age of the prisoner at the time of the offence, his frankness and cooperation with Police, his plea of guilty and the fact that the prisoner has spent the last four years in prison for another offence that was committed after the rape incident several years earlier and that he is soon to be released from prison to return to his family and reunite with them once again, I sentence the prisoner to four years imprisonment in hard labour. I suspend three years and he shall serve one year in addition to other terms he is currently serving.

Lawyer for the State: Public Prosecutor
Lawyer for the Defence: Public Solicitor