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State v Gemung (No 2) [2007] PGNC 31; N3136 (30 March 2007)

N3136

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1508 OF 2005

THE STATE

v

RUAP GEMUNG (No. 2)
-Prisoner-

Madang: Davani .J
2007: 29 & 30 March

CRIMINAL LAW – sentence – sexual penetration of a child and rape – victim, 14 years old female – prisoner, a magistrate – s. 17 of Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 (‘CCSOCAC’) and s. 229A (1) of CCSOCAC.

CRIMINAL LAW – sentence – existing relationship of trust, authority and dependency between the prisoner and the child – relationship breached – 13 years for rape, 20 years for sexual penetration of a child, concurrent at 20 years.

Cases cited

State v Luke Sitban (No. 1) (2004) N2572
State v Pennias Mokei (No. 2) (2004) N2635
State v Dibol Petrus Kopal N2778 (2006)

Counsel

J. Wala, for the State
B. Waipek, for the Prisoner

SENTENCE

30 March, 2007

1. DAVANI .J: On 28 March, 2007, this court found the prisoner RUAP GEMUNG (the ‘prisoner’) guilty on one (1) count of rape under s. 17 of the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 (‘CCSOCAC’) (amended s. 347 of the Criminal Code Act) and sexual penetration of a child under s. 229A(1) of the same Act.

2. Counsel for the prisoner submitted on the type of punishment to be imposed and reminded the court of the following;

i. that punishment under s. 349 (1) is subject to s. 349 (2), that there must be circumstances of aggravation;

ii. that s. 229A (1) is subject to s. 229A (2) and (3), more specifically s. 229A (3) which speaks of a "relationship of trust authority or dependency between the accused and the child" and that if such a relationship exists, that subject to s. 19 of the Criminal Code Act (‘CCA’), the accused may be sentenced to life imprisonment.

3. In relation to s. 349 (1) of the CCA, both counsel agreed that for s. 349 (2) to apply, the indictment must plead circumstances of aggravation (see State v Dibol Petrus Kopal N2778 (2006)). In this case, circumstances of aggravation are not pleaded on the indictment so s. 349 (2) does not apply. I accept those submissions.

4. Therefore, the maximum sentence to be imposed under s. 17(1) of the CCSOCAC is 15 years, subject to s. 19 of the CCA.

5. In relation to s. 229A (1), Mr Waipek submitted that the court must measure the degree of trust, if it is to find that there was a relationship of trust between the victim and the prisoner, for s. 229A(3) to apply i.e the penalty of life imprisonment, subject to s. 19 of the CCA. However, Mr Waipek did not present any authorities or submissions on the law in support of his submissions. Mr Wala for the State on the other hand, submitted that there was a relationship of trust and that s. 229A (3) does apply. I discuss this in detail below.

6. On allocatus, the prisoner said he respected the courts decision and looked to the court for its mercy. He asked for a non-custodial sentence for the following reasons;

1. Being a magistrate, his life will be at risk if he is sent to prison;
   
2. That he has 2 wives and 9 children who are of school age and infants;
   
3. His wives are unemployed being uneducated and rely on him as the sole bread winner. If he is incarcerated, there is nobody to take care of his family;
   

7. The prisoner also asked the court to take into account the fact that this is his first offence, he is a law-abiding citizen and has been a faithful public servant for the last 29 years and 8 months, having served as a magistrate. He told the court that if the court does order a non-custodial sentence, that he is prepared to pay compensation to the victim.

8. His lawyer supported these submissions by also pointing out the following;

1. The prisoner did not use force or threaten the victim;
2. The prisoner did not cause grievous bodily harm or physical injuries to the victim, with the exception of the genital area;
3. The prisoner did not restrain or confine the victim before or after committing the offence;
4. The offence was unplanned and happened spontaneously whilst the victim was with the prisoner at the guest house;
5. The victim did not suffer mental or emotional distress;
6. The victim did not sustain or receive any sexually transmitted disease as a result of the rape;
7. The prisoner cooperated with the police in all facets of their investigation.
   

9. Mr Wala however submitted that the offence is a prevalent offence, committed upon a young, 14 year old girl.

10. I have considered all circumstances and find that the prisoner was in a position of trust. That is evidence before the court which I covered in my decision on verdict. For the purposes of sentencing, I need only point out that the prisoner was a magistrate, was the victim’s father’s boss and was a good family friend. Section 3 (b) of the CCSOCAC defines "a relationship of trust and dependency" as "in circumstances where the accused has care and custody of the complainant." The evidence is that he did have care and custody of the victim when the offences were committed.

11. The evidence is that whilst she was in his care and custody, he sexually penetrated her. As a result, her genitals became infected and had to be treated with amoxycillin. I discuss this in my decision on verdict. She has also stopped attending school because this incident resulted in her missing a year of school.

12. A young girl trusted you, she went with you and you abused that trust by raping her. You are a magistrate, a man representing the law, an office which carries with it integrity, which the people of this country look to if all else fails. The courts are the last bastion. When representatives of the law commit these crimes what hope do the people of this country have? Nothing. They are now left to fend for themselves knowing they cannot even trust those who sit in the chair of justice and who interpret and implement the law.

13. Although your lawyer and you asked for a non-custodial sentence based on the various reasons they raise, I am of the view that this is not an offence that warrants such a sentence. Many cases involving policemen, warders, parliamentarians, wives and husbands have come before the courts where accused persons have asked for non-custodial sentences because there is nobody to look after their families or their lives in jail are at great risk. Those submissions do not hold water. You should have thought of this before committing the crime.

14. The nature of this offence is serious. You were a 53-year-old man who sexually penetrated this young girl in a hotel room when she was in your care. You abused that trust. She had to come to court and be placed in the embarrassing position of giving evidence.

15. I have considered the case of the State v Luke Sitban (No. 1) (2004) N2572 where a sentence of 17 years was imposed for the aggravated rape of a young girl and the State v Pennias Mokei (No. 2) (2004) N2635, where an accused person who was charged under s. 229A was sentenced to 15 years. Pennias Mokei (No. 2) (supra) especially is of relevant consideration because Cannings .J discusses principles and factors which I find are relevant to this case and which are similar in many respects. I adopt his reasoning for the purposes of sentencing, more particularly his discussion on the factors of sentencing. In this case, the prisoner did not exhibit violence of any kind towards the victim, nor did he cause her physical harm apart from injuries sustained in her private parts, as a result of the forced penetration. But what is very serious is the fact that the trust the victim had for the prisoner, a magistrate, a representative of the law and a good friend, was such that she left home and accompanied him, for a child, an opportunity "to see the bright lights" of Madang. But that wonderful day was ruined and tarnished by the most despicable act where the prisoner’s bodily desires got the better of him. He took it out on the young, innocent and defenceless child, who could not fight back or protect herself.

16. After consideration of all the above, I find that the appropriate sentence for the first count of rape, to be 13 years in hard labour.

17. For the second count of sexual penetration, s. 229A (3) of the CCSOCAC applies. You are sentenced to 20 years for that offence.

18. These sentences will be made concurrent because the offences occurred in a single transaction. It is just and appropriate for the totality of this criminal behaviour that you serve the term of 20 years in hard labour.

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Public Prosecutor: Lawyer for the State
Kunai & Co: Lawyer for the Prisoner