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State v Mesak [2009] PGNC 214; N3907 (11 December 2009)

N3907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1032 OF 2005

THE STATE

V

SOU MESAK, LAVUVAT REREKE & BILLY TURMUR (N0.3)

Kokopo: Lenalia, J
2009: 16th November & 11th December.

CRIMINAL LAW – Pack rape – Sentence after finding of guilty –Criminal Code (Sexual Offences and Crimes Against Children) Act, s.347.

CRIMINAL LAW – Sentencing principles on rape cases – No breach of trust – No weapons used – No injuries– First time offender – Prevalence of offence –Effect of – Sentence of 18 years imposed.

Cases cited.

Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439
Goli Golu v The State [1979] PNGLR 653
The State v Andrew Tovue [1981] PNGLR 8
Avia Aihi v The State (No.3) [1982] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
John Aubuku v. The State [1987] PNGLR 267
John Elipa Kalabus v The State [1988] PNGLR 193
The State v Sottie Apusa [1988-89] PNGLR 170
The State v Kenneth Penias [1994] PNGLR 48
The State v Thomas Waim [1995] PNGLR 187
The State v Lawrie Patrick & 3 Ors. [1995] PNGLR 195
James Mora Meaoa v The State [1996] PNGLR 280
Lawrence Hindemba v The State (1998) SC593
The State v Alphones Apou (2003) N2431
The State v Pais Steven Sow (2004) N2588
The State v. Nick Teptep (2004) N2612
The State v Moses Jafisa Winga (No.2) (2005) N2952
The State v James Yali (2006) N2989
The State v Chris Nawa (No.2) (29.7.09) N3732
The State v Henry Umue (21.10.09) Cr.No.454 of 2008

Counsel

L. Rangan, for State
M. Efi, for Accused

11th December, 2009

1. LENALIA, J: The prisoner was amongst a group of three men who were accused of one count of aggravated rape contrary to s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. Only accused Lavuvat Rereke was tried and found guilty on 8th December 2009. The other two co-accused are still at large and the following judgment on sentence only relates to accused Lavuvat Rereke.

3. To understand the nature of the offence and for purposes of the discussion on sentence, I quote the above sections in the following terms:

"347. Defenition 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."(Emphasis added)

4. Circumstances of aggravation were not pleaded on indictment but the evidence on trial clearly indicates that, the prisoner was in the company of two other accomplices. In the circumstances of the instant case, aggravating factors are highlighted in the interpretation section in s.349A of the Act. It states states:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a) the accused person is in the company of another person or persons; or
(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or
(c) at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or
(d) the accused person confines or restrains the complainant before or after the commission of the offence; or
(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
(f) the accused is a member of the same family or clan as the complainant’ or
(g) the complainant has a serious physical or mental disability; or

(h) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

(Emphasis added).

5. Section 1 of the Criminal Code defines the phrase "circumstances of aggravation" in the following words:

"circumstances of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

6. The prisoner’s case falls under the above definition. He committed the crime although a one off incident committed it together with two co-accused and although the aggravating factors are not pleaded on the body of the indictment, there is no reason why the Court can not make reference to circumstances of aggravations.

7. For purposes of discussion on sentence, let me recapitulate on what evidence transpired on trial. The following pieces of documents were tendered by consent. The record of interview, in Pidgin and the English translation were marked Ex. "1" and Ex. "2".

8. The statement by the corroborating officer Policewoman Constable Kolish Moab was marked Ex. "3" and that of the interviewing officer was marked Ex. "4". The interviewing officer of this case was Policewoman Constable Sunema Vue. The certificate of birth of the victim Ex. "5" and the medical report and its annexure Exs. "6" and "6.1".

9. The victim in this case gave evidence that on Sunday 6th February 2006, she went down to the river to have a swim with her sisters, Elsah Kilang and Wanatuna Kilang. After they arrived at the river, she decided to go to the next village to collect her camera from her uncle’s house. She went up there but found no one was in the house so she decided to return.

10. On her way back, she met Sou Mesak who pulled her by her hand to a secluded location where he raped her. After raping her she decided to run away. However, Lavuvat Rereke (now the prisoner) and another co-accused Billy Turmur came to the scene.

11. The victim’s evidence shows that the prisoner pushed her down to the ground and sexually penetrated her against her will. The last person also had his turn. After raping her, they held the victim captive until 5.30 pm that day.

12. Two other witnesses were called, Elsah Kilang (the victim’s elder sister) and their mother March Kaludia were called as witnesses by the State. They corroborated the victim’s evidence that the victim Makila Kilang arrived very late on the evening of the date she was raped.

13. Their evidence was also accepted as evidence of recent complaint and that she was in a very distressed condition in terms of the principles stated in Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439 and The State v Andrew Tovue [1981] PNGLR 8.

Counsels submission on sentence

14. For the prisoner, Mr. Efi cited a series of cases in support of his submission that, the present case is not a worst type case and the starting point for a sentence should be 8 years. Counsel cited the case of The State v Peter Kaudik [1987] PNGLR 201 and John Aubuku v The State [1987] PNGLR 267 for the tariffs set on those cases. Counsel asked the Court to consider the prisoner is the first offender.

15. For the State, Mr. Rangan submitted on the aggravating circumstances such as the instant case was a pack rape by three men one of whom was the prisoner. Counsel asked the Court to consider the victim was at the age of 15 years when she was raped and the fact that, she was held captive from about 12 noon to about 5.30 pm on the date of the offence. He also raised the issue of indignities caused to the victim when she was being raped by the accused when two co-accused were watching like it was a movie show.

Discussion & Application of law

16. The case before me is one of rape. The offence of rape is always serious because it offends against humanity’s standard of decency and analogous to the crime of robbery. You know in armed robbery cases, a robber steals from someone who helplessly watches what is going on and he or she is robbed of whatever property they may have. Likewise, in a rape case, sexual intercourse is forced upon the victim against her wish. When sex which is the intimate relationship is had without consent, there is no love.

17. The prescribed penalty is a reflection of how serious the Parliament thought these crimes are. It is trite law that each case must be considered in the light of the different and peculiar circumstances under which they were committed. On this head, the Court will look at circumstances under which a crime is committed. Whether it was committed with aggravation or not and if there was what where those aggravations?

18. On considering an appropriate penalty for the prisoner, I am reminded of the principle that the maximum penalty ought to be reserved for the worst type case encountered in practice: Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105.

19. In considering an appropriate sentence to impose in a rape case, the proper approach would be for the court to have regard to the guidelines for sentencing rape offenders set out in John Aubuku v. The State [1987] PNGLR 267. There the Supreme Court suggested the starting point of 5 years for rape by an adult without any aggravating factors and eight years is the starting point where two or more persons gang rape a victim. But that was some 22 years ago and how about today.

20. Judges of both the Supreme and National Courts have now and then commented that the tariffs recommended in the above cases are now generally regarded as out of date as being inadequate. They are inappropriate and no longer applicable to the circumstances of the country today in the light of the escalation and prevalence of the crime of rape.

21. For instance in Lawrence Hindemba v The State (1998) SC 593 the Supreme Court said, the offence of rape is a violent and prevalent offence and there is need to review sentencing tariffs to reflect the serious nature of this crime and the community concern over rape cases. The following sentiment was made by the Supreme Court in the above case:

"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."

22. In John Aubuku v The State [1987] PNGLR 267 the Supreme Court commented that in a case where a victim is called to give evidence it is an extra stress to the complainant who must recite the sad experience to the public in the court room. The Court there said at page 269:

"The extra stress that giving evidence can cause to a victim means that a plea of guilty perhaps more so than other cases, should normally result in reduction from what would otherwise be the appropriate sentence."

23. In The State v Kenneth Penias [1994] PNGLR 48 at page 51, Injia J; (as he then was) commented in the following terms:

"Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated."

24. In the Supreme Court case of James Mora Meaoa v The State [1996] PNGLR 280 the Court expressed similar concern at page 284 where it said:

"We also agree that the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they in a public road, in the gardens or as here on the coast. We agree that the right of all persons female as well as male not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless or age or background."

25. Similar sentiments were made by Sevua J in The State v. Nick Teptep (2004) N2612. In that case the Judge sentenced the prisoner to 14 years who pleaded guilty to one count of rape where the State alleged it took place by a number of men. His Honour expressed the following sentiments toward the end of that judgment:

"Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection."

26. Recently in Buka in The State v Chris Nawa (No.2) (29.7.09) N3732 this Court expressed similar sentiments in relation to a charge of sexual abuse of a pupil by the head master under circumstances of aggravation of the relationship of trust, authority or dependency under s.229A (1). The Court said at paragraph 40 of the judgment:

"The amendment to most of the sexual offences in the Criminal Code was aimed at protecting children against sexual exploitation and abuse. The people of Papua New Guinea had decided through their elected leaders in the National Parliament to change the law and express their abhorrence against this sort of conduct. The people have spoken through their leaders indicating that, Papua New Guinea cannot tolerate children being abused. It makes sense, that people must care and respect their children who will be future leaders of this country."

27. On the penalty regime, in The State v Henry Umue (21.10.09) Cr.No.454 of 2008, the accused was found guilty by this court on two separate counts of raping his two nieces. The victims were the daughters of the prisoner’s wife’s elder sister. He was sentenced to 25 years consecutive sentences. I made the following comments at paragraphs 35 and 36:

"On my part, I say the crime of rape is forceful sexual intercourse upon our women who become easy prey because they are by nature weak and lack physical ability to resist when attacked. This is why in the cases I have cited above and even the ones below have suggested that sentences for rape cases and in cases of abuse of trust must increase dramatically. The law protects people who are most vulnerable to circumstances beyond their control."

28. In The State v Moses Jafisa Winga (No.2) (2005) N2952, the prisoner was found guilty on two charges of rape of a close relative with circumstances of aggravations. Kandakasi J sentenced him to consecutive sentences of 26 years.

29. In The State v Pais Steven Sow (2004) N2588, it was a guilty plea by an adult male offender in aggravating circumstances. In that case, the offender, a mature 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. He was sentenced to 15 years.

30. In The State v James Yali (2006) N2989, the prisoner was aged 41 and a serving member of the National Parliament and Governor of Madang Province. Cannings J sentenced him to 12 years after a trial. He was convicted for raping his de-facto wife’s sister. The victim was aged seventeen years old.

31. In The State v Alphones Apou (2003) N2431, Davani J, sentenced the offender to 16 years who pleaded guilty to a gang rape of a 15 year-old girl. She was held for seven hours and offensive weapons were used to threaten her.

32. In the present case, I have considered the prisoners statement on allocutus. I have considered counsels addresses on submission. Circumstances of aggravations outweigh all mitigations. The prisoner took advantage of the victim who had been raped by another person.

33. The instant case was a pack rape and in terms of the case of The State v Thomas Waim [1995] PNGLR 187, the prisoner’s case is very serious. There was no respect shown to the victim who was a student at the time she was raped. You three men acted out of logic and your behaviour was animalistic. You had no human feeling towards the victim. (See also The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195).

34. According to the victim’s evidence, you even stood by and watched the last accused have sex with the victim against her will. The crime of rape is forceful sexual intercourse upon our women who become easy prey because they are by nature weak and lack physical ability to resist when attacked. Men must not use women and girls as sex objects. Look at the rate and number of rape cases or even sexual offences for that matter in our Province. It is an alarming figure in fact.

35. Like any other offences, sexual offences are serious in nature as they infringe on the rights of women particularly if they are committed with force and violence and where as was in this case, the victim was aged 15 years. On top of that she was pack raped and is a very serious aggravation which makes your case one of those very serious cases committed in practice.

36. According to her mother’s Statutory Declaration dated the 15th February 2005, the victim was born on 13th January 1990. She was 15 years 1 month when you raped her. At the time the offence was committed, the prisoner was about 23 years a very big age difference and according to the case of The State v Sottie Apusa [1988-89] PNGLR 170, it is an aggravation.

37. Your case went by trial. According to the case of John Elipa Kalabus v The State [1988] PNGLR 193 at 197, the Supreme Court said that, where an accused makes an expression of remorse early after the commission of an offence, the more favourable it would be for the accused. The victim came and testified in court about what the three of you did to her.

38. When she was giving her evidence, the Court could tell and infer from her demeanour that she had to bear the shame of what she was telling the court. Relating the story of what occurred to her privately to a friend would be different from telling it to the Court and public who sat in court.

39. Bearing in mind the psychological trauma and the degradation she had to go through and the fear, continuing insecurity, the fear of pregnancy and contact of AIDS are serious consequences that a sentencing Court must consider.

40. It was said in the above case that contrition and remorse expressed at the trial has less weight. As stated in the above case, remorse and contrition are usually matters to be weighed on sentence in favour of an accused if they are manifested in a plea of guilty. (See also The State v Lawrie Patrick & 3 Ors [1995] PNGLR 195).

41. There is nothing much to mention in mitigation in favour of the prisoner except to say, he had had no previous convictions recorded against him.

42. As I have commented, the present case presents itself in very serious aggravating circumstances since it was a pack rape of an ambitious young woman. She did not deserve to make a public show of her private part to the three of you at the same time. Her right to the freedom from arbitrary search and entry and the right to privacy pursuant to sections 44 and 49 of the Constitution were infringed.

43. In my view except the prisoner’s case was a plea, I am of the view that no other exceptional circumstances exist in this case that would dissuade me from imposing a sentence other than a punitive custodial sentence. I adopt what His Honour, Amet, J (as he then was) said in The State v Peter Kaudik [1987] PNGLR 201 at page 207:

"....the sentence of this Court I believe should reflect the society’s after revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same right as do men, in their private persons."

44. In the circumstances of this case, I consider that a sentence of 18 years shall be an appropriate sentence. This Court imposes that sentence on him. The time spent in custody shall be deducted from that sentence and he shall serve the balance.

______________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused