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State v Dabo [2006] PGNC 97; CR 907 & 908 of 2006 (16 October 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 907-908 OF 2006

THE STATE

V

LUCAS DABO
&
ALISTA GELE

Finschhafen: Kirriwom, J
2006: 9 & 16 October

SENTENCE – Pack Rape – Young offenders – Teenage victim – Circumstances of aggravation – Lucas Dabo sentenced to six years – Alista Gele sentenced to four years to be served at Erap Boys Town Lae.

Cases cited:
John Aubuku v The State [1987] PNGLR 267

Counsel:
N. Miviri with J. Done, for the State
C. Koi, for the Prisoners

DECISION ON SENTENCE

16 October, 2006

1. KIRRIWOM, J: The two prisoners are aged 17 and 19 years respectively and have been charged with one count of rape of the victim "MN" then aged 13 years old. They pleaded guilty to each and severally sexually penetrating the victim MN with their penis without her consent on 27 March 2006 at Finschhafen. The charge is pursued with circumstances of aggravation in that unlawful weapons were used to threaten the victim into submission that this was a pack rape although only two persons were allegedly involved.

2. The facts of the case are that on the morning of the day in question at about 7 am the victim "MN" and her twin sister "RN" were walking to school from their village of Korao which is a part of Bonga village. At Soimi Creek just before Keregia Community School they were held up by the two persons with bush knife and a home-made gun. The armed persons wore masks and grabbed the victim and her sister and pulled them into the bushes. The prisoner Lucas Dabo held the victim "MN" and took her on direction while Alista Gele took "RN" and went another direction. The girls resisted. The victim’s sister "RN" managed to talk herself out of being raped when she was let go by Alista Gele and ran all the way home while the victim was not so lucky. She was taken further into the bush and was raped by Lucas Dabo. After he finished Alista Gele also had sex with her against her will. After both had finished with her, told her not to report to anyone or they will kill her. They then escaped while the victim proceeded to school. However on the way she met the village peace officer from Bonga and told him of her ordeal so he took her to the village and reported the incident to the village leaders. The victim was taken for medical examination and medical report showed positive signs of sexual penetration. The prisoners were arrested and charged two days after the offence.

3. As this is a charge of aggravated rape, the sentence provided under subsection (2) of section 347 is life imprisonment. This is a prevalent offence. Sexual violence perpetrated on women and girls by men in groups, especially young men in their teens, has reached an epidemic proportions everywhere across the country which is a serous concern. Decent please-loving people keep asking what has gone wrong with our society. When we are supposed to be more civilised and getting to be more liberal in our thinking towards different sexes, behaviours of our male population has gone from humans to those of animals. This is not the way our ancestors were behaving. This is not what the missionaries have taught us to do. This is not what the school has taught our children. We begin to worry about this moral decay in the society.

4. It is frightening to think that amongst us in our own family whenever we live there is a potential sexual predator. He could be your father, brother, uncle, cousin, grandpa or even a stranger. There have been reported cases in recent past of son raping his own mother, husband raping his own wife, father raping his own daughter, mother raping her own son and so on. In this case, the prisoner Lucas Dabo is no stranger to the victim as there are some close family ties between them and this is confirmed by his elder brother although the prisoner denies such relationship.

5. This is a mildly aggravated rape in the sense that there were dangerous weapons involved to threaten the two children and dragging them both into the bushes away from any help nearby and then forcefully having sex with the victim "MN" while her sister "RN" escaped. "RN" was released and allowed to escape by the prisoner Alista Gele when she told him to let her go as she was a student. This is confirmed by the prisoner in his record of interview.

6. In sentencing the prisoners the court takes into account the prevalence of the offence, the young age of the victim, the use of weapons and the treats associated with the assault. These factors aggravate the offence.

7. On the other hand there are also those factors that mitigate the seriousness of the offence such as their pleas of guilty thus saving the victims the trouble and embarrassment of coming to court and reliving the ordeal in public and saving court time and expense, their cooperation with the police and early admissions following their arrests, their expressions of remorse and their prior good records. Also in their favour I take into account the fact that no physical injuries were inflicted on the victim other than the sexual assault.

8. Both prisoners are youthful offenders. Alista Gele is a juvenile under the Juvenile Court Act 1991 as he is seventeen years old. And I note from the Pre-Sentence Report that the Sacred Heart Brothers at Erap Boys Town in Lae are willing to take him into their care and supervise him. He comes from a family background where his Pindiu father is deceased and mother from Bonga village is now remarried to a man from Markham and lives at Mampim Village in the Markham District. He left school at Grade 6 in 2003 and was unable to go further as his grand father who was his immediate guardian at Bonga village was unable to raise his school fee. He has strong desire to continue his schooling. He has a younger brother who was adopted by his aunt who lives in Lae and attends Bugandi Secondary School.

9. Luke Dabo is 19 years old and both his parents are dead. He completed Grade 9 at Dregerhafen High School but did not complete Grade 10 due to lack of school fees. He comes from a family of seven children. Both their father and mother are deceased. He relied on his elder brother of his subsistence. He is also a first offender.

10. Counsel referred me to the sentencing guidelines prescribed in John Aubuku v The State [1987] PNGLR 267 where the Supreme Court said that where rape is committed by an adult without circumstances of aggravation or mitigating factors, a stating term of five years would be appropriate. In this case I remind myself that these are two young offenders who violated a child aged 13 years at the time of the assault. It was a terrifying experience for a small girl of the victim’s age and size. Medical evidence showed that there was no actual penetration though some attempts to effect penetration was visible on the labia majora and minora. But for purpose of sexual penetration, the definition under section 6 is that introduction to any extent of the male penis into the vagina, anus or mouth of the female victim is sufficient to fulfil the requirement of sexual penetration.

11. Given the prevalence of this crime everywhere and in most cases where dangerous weapons are used and involves more than one person, a deterrence sentence is called for.

12. In all the circumstances, I sentence the prisoners as follows:

1. Lucas Dabo – I sentence him to six years imprisonment in hard labour. I deduct six months spent in custody awaiting trial. That leaves him five and half years to serve.
   
2. Alista Gele – I sentence him to four years imprisonment. I deduct six months re-trial custody. He shall serve three and half years and I order that he serves that term at Erap Boys Town.
   

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence