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State v Nason (No.2) [2008] PGNC 304; N3553 (18 September 2008)

N3553
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 651 OF 2005
(NO. 2)

THE STATE

V

ELIMO NASON
Prisoner

Alotau: Davani .J
2008: 17th, 18th September

SENTENCE – rape - non consensual sexual intercourse - victim attacked in her home - s.17 of Criminal Code (Sexual Offences and Crimes Against Children) Act 2000

SENTENCE – rape - victim's rights - suspension of sentence not appropriate - 10 years

Facts

The victim was in her house in her village at night when the prisoner, entered her house, forcefully dragged her out of her home, then raped her outside. She was later infected by a sexually transmitted disease as a result of the rape. Closer medical examination revealed that she had been sexually penetrated and had suffered injuries to her private parts.

Issue

What is an appropriate sentence for an offence of this nature?

Held

1. The victim was forcefully taken from the protection and privacy of her home, then raped;
   
2. She sustained injuries to her private parts and was later infected by a sexually transmitted disease as a result of the rape;
   
3. The victim's rights must also be recognized, to be balanced against the accused's rights, and given the appropriate weight;
   
4. The prisoner is sentenced to 10 years to be reduced by the time spent in custody on remand.
   

Cases

John Aubuku v The State [1987] PNGLR 267
Sinclair Matagal v The State (1988), SCRA 95 of 1996
James Mora Meaoa v The State [1996] PNGLR 280
Thomas Waim v The State (1997) SC 519
Lawrence Hindemba v The State (1998) SC 593
The State v Eddie Peter (No. 2) (2001) N 2297
The State v Pascal Maya Omi (2005) N2808

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Prisoner

SENTENCE

18 September, 2008

1. DAVANI .J: After a trial, this Court found Elimo Nason ('prisoner') guilty of the offence of rape, charge laid under s.347(1) of the Criminal Code Act, as amended ('CCA') or s.17 of the Criminal Code (Sexual Offences And Crimes Against Children Act ('CCSOCAC'). This section reads;
   

"17. REPEAL AND REPLACEMENT OF SECTION 347

Section 347 of the Principal Act is repealed and is replaced with the following –

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."

Evidence

2. The evidence on which this Court found the prisoner guilty are the following;
   
   1. On a date between the period 29th September, 2004 and 6th October, 2004, in the evening, at Wayana Village, East Cape, the victim was alone in her house.
      
   2. Her mother, a widow, had gone to the teashop, some kilometres away, and would not be back until the next day.
      
   3. The victim's female cousin was with her earlier but had left on an outing with her boyfriend.
      
   4. Whilst the victim was in the kitchen cooking bananas, the prisoner entered her home, went to the kitchen, covered the victim's mouth with his hands, then dragged her out of the house.
      
   5. He dragged and pulled her to the village water well, where he removed her clothes, then forcefully sexually penetrated her despite her struggles.
      
   6. She felt a lot of pain when he penetrated her.
      
   7. After a few days, she could not walk properly because multiple itchy rashes and discharge in her private part had developed.
      
   8. Upon a medical check, it was discovered that she had developed an infection in her private part which was tender and inflamed, there were multiple lesions which had developed, with pus and that there was a yellowish smelly discharge.
      

Analysis of evidence and the law

3. The maximum penalty for this offence is 15 years. Both counsel have not put authorities before me to assist in the sentencing process only submitting as follows;
   

Defence - that the Court must exercise its discretion under s.19 of the CCA to partially suspend sentence and to place the prisoner on probation.

- that a sentence between 7 to 14 years is appropriate.

State - that the Court should consider seriously the aggravating factors which are that as a result of the rape, the victim was infected with a sexually transmitted disease.

- that a sentence to be imposed must be a deterrent to others here in Milne Bay because the criminal list here in Alotau is made up largely of sexual penetration cases.

4. The prisoner in this case is a villager. He is aged about 23 to 24 years and is married with a child. He does not have a criminal record and appears to be a person of good character.
   
5. However, his actions have left a young woman scarred for life, both psychologically and physically. To be accosted in your own house, dragged out, then again with the use of force, be raped, is the most horrifying and terrible ordeal for any woman. To pull through this ordeal and stand up in a court of law to relive this terrifying experience is again, another feat in itself.
   
6. The prisoner, although seemingly apologetic and remorseful on allocatus, must accept, that he cannot expect mercy from a Court of Law when the crime he committed is not only prevalent in this country but is one where the countless victims, those who do come to Court, that is, are left to pick up the pieces of their lives that has now been changed forever by the experience. Often, the Courts are asked by Defence Counsel to consider the prisoners' rights, but what of the victim? Isn't she all too often forgotten?
   
7. That is where the Court must then strike a balance in its approach to sentencing. In relation to a suspension of sentence, I am of the view that this case is not one which warrants that. Neither is a payment of a fine or a good behaviour bond. I note that this was done in The State v Pascal Maya Omi (2005) M2808, which was an attempted rape charge which the accused pleaded guilty to. He was sentenced to one year, all of which was suspended on conditions.
   
8. Where sexual penetration did occur as in this case, the Court sentences according to the peculiar set of circumstances before it. In James Mora Meaoa v The State [1996] PNGLR 280, the Supreme Court confirmed a sentence of 14 years because of a breach of a position of trust. In Lawrence Hindemba v The State (1998) SC 593, the Supreme Court increased a sentence of 10 years to 15 years. Other cases like Thomas Waim v The State (1997) SC 519 and Sinclair Matagal v The State (1988), SCRA 95 of 1996 dated 4th June, 1998, saw the increase of sentences to periods ranging from 14 to 18 years. Of course, I cannot put aside the Supreme Court's comments in John Aubuku v The State [1987] PNGLR 267, which called for strong, punitive sentences in rape cases, and which Kandakasi. J made reference to in The State v Eddie Peter (No. 2) (2001) N 2297, where he sentenced the accused to 17 years. That was a case where there was a glaring breach of trust when a school girl was raped by her uncle, whilst on her way to school.
   
9. In this case, the victim was taken away by force from her home and raped. There was no regard for her welfare, just a callous need by the prisoner for sex, which he took, from a defenceless girl.
   
10. This Court finds that a sentence of 10 years is appropriate. It will be reduced by the time the prisoner spent in custody on remand of 5 months. He shall serve the reduced term of 9 years and 7 months in hard labour.
    
11. His bail monies of K350.00 shall be refunded to him as I have already sighted the receipt, which is receipt no. C841 dated 26th May, 2008.
    

___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner