N4789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 677 OF 1997

THE STATE

V

MICHAEL DULUNG BIKET

Kimbe: Kawi J
2012: 18th April, 14th June

CRIMINAL LAW PRACTICE - Rape of a young girl under 16 years- Sentencing principles- Victim only 15 years old at time of offence-Criminal Code (Sexual Offences And Crimes Against Children's) Act- Section 347 (1) - case of a young school 15 year old girl abducted and raped as she was on her way to visit an uncle - Prisoner pleaded guilty- Repeated acts of sexual penetration of the victim by the prisoner-Guilty plea by a first offender -Sentence must reflect the sentencing objectives of deterrence - Sentence must be punitive and a custodial sentence must be imposed upon the prisoner- custodial sentence of twenty (20) years appropriate. 

The accused was found guilty after trial of one count of rape simpliciter contrary to section 347(1) of the Criminal Code.

On sentence:

HELD: (1) The offence of rape is a horrendous and heinous crime. It shows disrespect to women and lowers the status and dignity of women and motherhood in society. Persons who are guilty of committing such horrendous crimes must be severely punished with a deterrent and punitive custodial sentence which is deterrent in nature. 

(2) Sexual offences are becoming prevalent here in West New Britain. Accordingly the Courts must impose a strong deterrent, and punitive and custodial sentences on offenders.

(3) In the circumstances, a deterrent custodial sentence of 20 years will be imposed. To impose a sentence in the range of 3-5 years is to seriously undermine the gravity and seriousness of sexual crimes and offences.

Cases cited

The State –v- Damien Maigawi [2002] N2419
The State –v- Tioti Malana Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010.
The State –v- Peter Lare (2004) N2557
The State v- Joseph Ureap Unnumbered and Unreported judgement of Sawong J dated 12th July 2010
The State –v- John Ritsi Kutetoa (2005) N2814
In The State –v- Siro Waida (2008) N3311
The State –v- Bensa Siovoro Unreported Judgement of Kawi J dated 15th July 2011 2011. 

Counsel

Mr. Doko Kari, for the Accused
Mr. Lukara Rangan, for the State

18th June, 2012

1. KAWI, J: This was the trial of Michael Dulung Biket who is indicted with one count of rape simpliciter of one Dominica Bangut Reu, then 15 years old girl at Morokea village, Talasea District on the 9th of March 1997. The indictment was laid pursuant to section 347(1) of the Criminal code.

2. Following the not guilty plea, a trial was conducted. The State called in two witnesses; the first was a Police officer, Senior Detective Sergeant Peter Mirio who conducted the Identification parade to try and identify the culprit and the second witness was victim herself Dominica Bangut Reu. The defence called the accused who made an unsworn statement from the dock denying that he raped Dominica Bangut Reu. 

1.	THE FACTS

The facts as I find them are largely taken from the sworn evidence of the victim which were not the subject of much contention

3. On the 9th of March 1997, the victim and her parents attended the funeral of the victim's cousin brother at the nearby Ruango village. When they arrived at Ruango village, the victim expressed a desire to her parents that she wanted to visit her uncle at a hamlet called Ponex which is located between Ruango and the main Morokea village. The accused and his co-accused who overheard this conversation immediately took off for Ponex. The accused was accompanied by his friend and partner in crime, one Robert Lavu. They didn't go into the Ponex Hamlet instead they veered off into nearby bushes and hid in the bushes and waited for the victim to come by. Some 20 minutes later, they spotted the victim accompanied by his younger sister Juliana and her young cousin sister Carol walking towards the direction of Ponex.

4. When they came to the spot where the accused and his co-accused Robert Lavu were hiding, both jumped out of their hiding place and held them up. The principal accused, Michael Dulung Biket carried a homemade shot gun which he used to hold them up while the co-accused Robert Lavu used a sharpened bush knife to assist Michael Dulung to hold them up. When they held them up Michael Dulung Biket grabbed the hand of the victim tight while Robert Lavu pointed the knife at the two girls and used the knife to motion them to go back to Ruango. They then chased away the girls, the younger sister Julian and the cousin sister Carol to run away and forced the victim to follow them. The route they followed took them past the Ponex hamlet. They passed the Ponex hamlet where they forced the victim to go into some thick bushes and followed the bushy track to walk past Ponex onto the Morokea village main road. They walked up the small cliff towards Morokea village, but they did not go into the Morokea village. Instead they veered off into a bush track which took them right to the top of the hill. At a lonely spot on the mountain top the victim was asked to undress herself. She refused and the accused Michael Dulung Biket used the shot gun he was carrying to point at the victim and told her that she would be killed if she did not undress herself. She reluctantly obliged. When she eventually undressed she was forced to lie down on the ground naked. She was then sexually penetrated by Michael Dulung Biket, while the co-accused and partner in crime Robert Lavu waited and acted as the watchman.

2. THE LAW 

5. The law in relation to rape is prescribed under s347 of the Criminal Code Act and is stated as follows:

347 –DEFINITION OF RAPE

(1)	 A Person who sexually penetrates a person without his consent is guilty of the 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, 

ISSUE 1.The first issue which arises for consideration is whether or not raping Dominica Bangut Reu was done in circumstances of aggravation and if so what are those circumstances of aggravation?

6. The victim Dominica Bangut Reu gave a very clear, concise and explicit evidence confirming in minute detail of how she was held up at gun point and led into the bushes and how she was eventually sexually penetrated. Her explicit description of the sexual penetration of her vagina by the penis of Michael Dulung Biket was very precise such that any attempt in cross examination to contradict her proved unsuccessful. The evidence I accept on this aspect is that when they came to the lonely spot on the mountain top she was then forced to undress. When she refused she was threatened at and at the sight of the gun point she did. Michael sat on her legs naked. Then he penetrated her vagina with his erect penis. After ejaculation in her vagina he wanted to continue but found out that he possibly could not. He then sat down on the legs of the victim and masturbated himself but could not succeed in maintaining an erection even when he failed to maintain an erection again. During this period he inserted the penis into the vagina again three times but failed on each occasion to get an erection. The co-accused Robert Lavu tired of keeping watch came and advised Michael Dulung Biket that it was now his turn to have sex with the victim. Robert was in the process of inserting his erect penis into her vagina when heard the victim's uncle came looking for her and calling her name no more than 15 meters away. The victim struggled to turn around and call her uncle's name but Robert Lavu put his hand over her mouth and with closed fists punched the victim on the mouth to stop her from yelling out. When the uncle was getting closer to where the victim was, the co-accused forced the victim and together they ran away down the mountain slope.

7. The accused Michael Dulung Biket opted to make a short unworn statement from the dock. In his statement he denied being the rapist. He alleged that there were no physical injuries sustained by the victim. Added to this he stated the victim did not produce any torn clothes nor showed physical signs of a struggle or a fight to prove that a rape did take place.

8. I will clearly dismiss the statement from the dock as when I weigh it against the sworn evidence of the victim I find that it is simply a weightless and worthless statement not worth any judicial consideration. I find that the act of sexual penetration in the present case was committed under circumstances of aggravation.

CIRCUMSTANCES OF AGGRAVATION

9. Circumstances of aggravation is defined under section 349A to include circumstances where person or persons; or 

a)	An accused person is in the company of another person or persons;

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. 

10. It is clear from the evidence of the victim and I so find that the rape was perpetrated upon the victim in circumstances of aggravation. The circumstances being use of both a shotgun and the bush knife to hold up the victim as she and her sisters were on their way to Ponex to visit their uncle, and pointing the gun to the head of the victim and threatening and ordering her to undress when she initially refused to undress. The two weapons used here is the shotgun and the sharpened bush knife. 

Issue no. 3.Was there sexual penetration of the vagina?

11. Sexual penetration is adequately defined by section 6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 as follows:

"6. SEXUAL PENETRATION.

When the expression "Sexual Penetration" or "sexually penetrates" are used in the definition of an offence, so far as it regards that element of it, is complete where there is- 

(a)	The introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person;

(b)	 The introduction, to any extent, by a person of an object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith or for medical or hygienic purposes".

12. In her evidence the victim Dominica Bangut Reu was quite frank when she stated as she was lying on her back one of her attackers, namely Michael Dulung Biket pushed his erect penis into her vagina. After ejaculation into her vagina, he tried several times again to sexually penetrate her but he could not get the desired erection but three times he tried he failed to get an erection. He even went to the extent of masturbating himself to achieve an erection but all attempts to maintain an erection failed. 

13. She was put through all these terrifying sexual and perverted attacks and experiences. Accordingly I am satisfied beyond reasonable doubt that Michael Dulung Biket is found guilty of aggravated rape and convicted of the same under section 347 (2) of the Criminal Code.

SENTENCE

14. Michael Dulung Biket having been found guilty and convicted of aggravated rape of Dominica Bangut Reu, then a 15 year old girl under section 347 (2) of the Criminal Code, this is now my judgement on his sentence.

3. SENTENCING PROCESS

15. Sentencing is not an exact science guided by fixed formulas and fixed answers. Rather sentencing is a discretionary process guided by several well known principles of law. One of these principles is that the court will take into account factors operating in favour of the offender known as mitigating factors and those operating against the prisoner known as aggravating factors. Some mitigating factors may be strongly mitigating while others may be mildly mitigating. The same is true for aggravating factors.

16. Here I record these mitigating factors for the prisoner:

•	The prisoner expressed sorrow to the victim when the allocutus was administered.

•	Having expressed sorrow he begged the court for leniency when exercising its discretion to impose a sentence.

17. Operating against the Prisoner I record the following:

•	The relatively young age of the victim. She was only 15 years at the time when she was raped by the prisoner.

•	Two lethal weapons, a homemade shotgun, and sharpened bush knife was used to hold up and abduct the victim.

•	Then she was threatened to be killed with the shotgun if she did not undress herself and submit to sexual intercourse with Michael Dulung Biket.

•	A full trial was conducted into the circumstances of this case. The victim was forced to re-live and retrace the horrifying memory and experience of being raped by two armed men in the jungle. 

•	Added to this is the psychological and social stigma of being raped. 

•	I also find that the prisoner Michael Dulung Biket was accompanied by his friend and co-accused Robert Lavu who both sexually penetrated the victim. 

18. In these circumstances, I do not find the presence of any mitigating or extenuating circumstances, which would have significantly reduced the gravity of the crime you committed. 

19. The sentencing process and the eventual sentence are all aimed at attaining one or more objectives of sentencing. The final sentence I arrived at must reflect and feature one or more of these objectives. And these objectives of sentencing are; (a) Deterrence, (b) Rehabilitation; (c) Restitution; (d) Retribution.

20. I consider that amongst the sentencing objectives, outlined above, the objectives of rehabilitation or reformation of a prisoner must not be allowed to obscure the objectives of personal deterrence. Consequently in this case any sentence to be imposed here, must be of a deterrent nature which must also be punitive in nature. In this case a sentence reflecting the values of rehabilitation/reformation and deterrence must be imposed. The prisoner must be rehabilitated to have a positive outlook on women in society as a whole. In my view those who perpetrate sexual crimes and sexual offences upon women and the female population belong to the class of persons described as sick persons in society. They have no respect at all for the dignity and status of women and girls in a community. The offence of rape is a horrendous and heinous crime. It shows disrespect to women and lowers the status and dignity of women and motherhood in society. Persons who are guilty of committing such horrendous crimes must therefore be severely punished with a deterrent and punitive custodial punishment which is deterrent in nature. Sexual offences are becoming prevalent here in West New Britain. Accordingly, the Courts must impose a strong deterrent, and punitive and custodial sentence upon offenders such as the prisoner here.

4. SENTENCING TARRIFS

21. Judges always refer to and start from a reference point in their sentences. And a good reference point is a decision in a similar but previous decision of either the National or Supreme Court case. 

22. I now consider the sentencing tariffs from previous sentences.

The State –v- Damien Maigawi [2002] N2419

The offender pleaded guilty to one count of sexual penetration of a 3 year old victim. He was sentenced to 12 years in prison.

In The State –v- Tioti Malana, Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010, the accused was the biological father of the victim. He was convicted and sentenced to a jail term of twenty five years. 

The State –v- Peter Lare (2004) N255 

The accused pleaded guilty to one count of sexual penetration of a girl under 16 years old. The accused was in a position of trust, authority and dependency with the victim. He was sentenced to 20 years jail in hard labour less the time spent in custody awaiting trial.

In The State v- Joseph Ureap Unnumbered and Unreported judgement of Sawong J dated 12th July 2010 the accused, a 44 year old man was charged for sexually penetrating his biological daughter contrary to section 229A of the Criminal Code. He was convicted and a prison sentence of twenty years was imposed upon him.

 In The State –v- John Ritsi Kutetoa (2005) N2814, Cannings J imposed a sentence of seventeen years in hard labour. In that case there existed a relationship of trust which the prisoner had breached. The victim was the prisoner's step daughter. 

In The State –v- Siro Waida (2008) N3311, Kandakasi J imposed a jail term of seventeen years on a guilty plea for one count of sexual penetration of the victim who was 14 years old at the time. 

In The State –v- Bensa Siovoro, Kawi J sentenced a 40 year old Tinputz man to twenty years in prison which was reduced by 4 years to 16 years. The prisoner there had sexually penetrated her own step daughter, who at that time was 15 years old. She became pregnant and gave birth to a son.

23. All these cases have one thing in common. They clearly show that the Courts will impose very stringent range of sentences in sexual offences involving young girls. The cases further show that courts can no longer tolerate abuse of young girls and children and sexual exploitation of girls and children between the age of 16 and 18 years. 

24. The sentencing tariffs from the cases referred to show a range of sentences for sexual offences from 12 to 25 years. 

25. The circumstances of this case viewed in light of the above range of sentences makes it very clear that the eventual sentence to be imposed must be severe and deterrent as well as custodial in nature. Neither to impose any other punishments is to undermine the gravity and seriousness of sexual crimes. Neither should sentences be light and offenders given fully suspended sentences. In my view to punish an offender with a light fully suspended sentence would be to defeat the intention and rationale behind the enactment of the Criminal Code (Sexual Offences and Crimes Against Children's) Act 2002. 

26. Parliament passed this Legislation amidst growing concerns over the need to protect women, girls and young children in our country. Parliament then was of the view that this category of our population were rather defenceless and more prone and vulnerable to sexual exploitation and sexual abuse at the whims and desires of sexual predators such as the prisoner here. Furthermore it was concerned that penalties being imposed on offenders by the courts were rather too lenient. It wanted the Courts to impose heavier penalties upon offenders who prey upon defenceless females and commit various sexual crimes upon women and children. 27. Parliament has now confirmed just how serious it is to abuse a position of trust, authority or dependency. This can be gauzed by making reference to the various penalty regimes created for the various sexual offences. For instance section 229E, now carries a maximum sentence of 15 years demonstrating just how serious Parliament was when it made amendments to the Criminal Code. 

Following the case authorities of the cases cited above, and more particularly taking heed of the range of sentences imposed it would be remiss of me to impose a light custodial sentence on what is otherwise a very serious case. Therefore I would impose a custodial head sentence of 20 years upon you to be served in jail in hard labour at the Lakiemata jail outside Kimbe town. I will also order that any pre trial custody period be reduced from the 20 years prison sentence. Finally any cash bail monies paid on account of bail are to be fully refunded. 

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