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State v Unabu (No.2) [2013] PGNC 215; N5409 (21 June 2013)

N5409

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 44 OF 2010

THE STATE

V

DAVID UNABU
(NO.2)

Popondetta: Toliken, AJ
2013: 20th, 21st, June

CRIMINAL LAW – Sentence – Aggravated rape – Accused concocts a story to take complainant out of her family home – Accused regards complainant's mother as brother and complainant as niece – Parties not related by blood - Existence of a de facto position of trust, authority and dependency - Abuse of position of trust – Use of dangerous weapon to subdue complainant - Expression of remorse not genuine – First time offender – Not the worst instance of rape – Need for deterrence and separation of offender from society –Sentence of 12 years less time spent in custody – Suspension inappropriate in the circumstances – Criminal Code Act Ch. 262, s 347 (1)(2).

Cases cited:
Papua New Guinea Cases

The State v Peter Kaudik [1987] PNGLR 201
Lawrence Hindemba v The State (1998) SC593
The State v Tomitom (2008) N3301
The State v Kenneth Penias [1994] PNGLR 49
The State v Thomas Madi (2004) N2619
John Aubuku v The State [1987] PNGLR 267

Overseas Cases

R –v- Billam [1986] IWLR 349

Counsel:

J W Tamate, for the State
L Mamu, for the Accused

JUDGMENT ON SENTENCE

21st June, 2013

1. TOLIKEN AJ: On 19th of June, I found the prisoner guilty of one count of aggravated rape contravening Section 347(1)(2) of the Criminal Code Act, Chapter 262.
   
2. He was charged that on 29th January 2009 at Popondetta, he sexually penetrated one Catherine Waskau without her consent and at the time he threatened her with a small knife and further that he was in a position of trust.
   
3. The pertinent facts for the purpose of sentencing the prisoner are that the prisoner and the complainant's family were living at the Golf Club Compound here in Popondetta. Though not related, they come from Maprik District, East Sepik Province.
   
4. Over the years, the two families had become very close. They shared food and other things and the complainant's mother treated the prisoner as a brother. Her children also treated him as their uncle.
   
5. In the month of January 2009, the prisoner concocted a story about a Sepik man whom he said was the Finance Manager of Suuh Finance venting to befriend a Sepik girl.
   
6. He told this story to the complainant and asked her if she was interested. The complainant referred him to her mother telling him that she was her boss. The complainant's mother agreed to the proposition when he told her.
   
7. On the 20th January 2009, around 6.00 a.m., the prisoner came to the complainant's house to fetch the complainant, purportedly to go and meet this Sepik man. Trusting the prisoner, the complainant's mother allowed her to go with the prisoner.
   
8. The complainant and the prisoner proceeded on foot through a short cut to the Rice Industries premises, where the prisoner was a Security Supervisor for a firm that was guarding the premises.
   
9. The prisoner took the complainant to the Manager's residential area. He left her there and went to Evito to buy some beer. He returned with the beer and they drank. He then returned and bought more beer when the first bottles were finished.
   
10. By that time, the complainant was getting hungry and wanted to go home. But before that, she wanted to use the rest room and asked the prisoner to show it to her. The prisoner took the complainant to the rest room.
    
11. The complainant went in to relieve herself but couldn't as the prisoner was standing at the door to the toilet. She protested asking him why he was doing that. She told him that she will report him to her mother. She pushed him away from the doorway and told him that he was going home and walked out of the toilet. She went out of the gate and headed for home. The prisoner followed her home. They followed the same route they took, with the prisoner walking ahead of the complainant.
    
12. Along the way, the prisoner told the complainant to go ahead while he relieved himself so the complainant went ahead. She was, however, taken by surprised when the prisoner grabbed her from behind by the collar of her shirt. She asked him how he could do this to her saying; "uncle how could you do this to me?" The prisoner replied; "who is your uncle? He then put a small knife to the complainant's neck, pushed her down to the grass and sexually penetrated her without her consent. The complainant struggled to free herself as he was raping her telling him to leave her alone. But the prisoner replied "I don't care about going to prison, I am David."
    
13. After that the complainant went home crying. She found her mother at her garden and told her what happened to her. Her mother also started crying calling the prisoner's name and asking aloud why he tricked her and took her daughter and raped her.
    
14. The complainant's mother observed that the complainant when she came crying to her had grass and dirt on her hair and body.
    
15. They then went to report the matter to the Police Constable Otto Kaboir. He was not at home though. Later that day, the complainant's mother returned when he was home and reported what the prisoner did to her daughter. She also relayed her daughter's demand for K2,000.00 compensation and a pig.
    
16. The complainant's mother asked her to go for a medical examination but the complainant refused saying that she did not want to embarrass herself – i.e. of having been raped by a married man.
    
17. Otto Kaboir relayed the complainant's demand for compensation to the prisoner who agreed to pay. However, when he failed to pay up, the matter was reported to the police and the prisoner was arrested and charged.
    
18. I was satisfied that the circumstances of aggravation were proved. The prisoner used a knife to threaten the complainant and there was also a relationship of trust between the prisoner and the complainant's family.
    
19. Even though they were not related, the relationship was very close so much so that the complainant's mother referred to the prisoner as her brother and her children including the complainant referred to her as "uncle". I found that the relationship went beyond that of mere friend to the extent that the complainant's mother was able to entrust her daughter to the prisoner.
    
20. When he addressed the Court on sentence, the prisoner apologised, inter alia, to the community, his family, the complainant and her family.
    
21. He, however, maintained that they had planned to drink together so he lied to the complainant's mother so that she could release her. He also maintained that sexual intercourse took place in the toilet at Rice Industries and that it was consensual.
    
22. He apologised to his children saying that his wife had remarried and finally, he asked for good behaviour or probation so that he could pay the K2,000.00 demanded by the complainant.
    
23. Mr. Mamu urged the Court to consider the prisoner's plea on allocutus. He said that the prisoner was genuinely remorseful. He is a first time offender and that his wife has since left him. He asked the Court to also consider the welfare of the prisoner's children.
    
24. Mr. Mamu suggested that a sentence of 8 years less the 3 years 8 months and 8 days spent in Pre-Trial Custody be considered.
    
25. Mr. Tamate on the other hand said the prisoner's expression of remorse is not genuine in that while he expressed remorse and apologised he maintained that sexual intercourse took place in the Rice Industries toilet and that the complainant had consented.
    
26. Counsel said that while John Aubuku v The State [1987] PNGLR 267 remains the authority on sentencing for rape, sentences have increased due to the prevalence of this offence.
    
27. Counsel referred the Court to several cases to assist the Court in arriving at an appropriate sentence (Lawrence Hindemba v The State (1998) SC593; The State v Tomitom (2008) N3301; The State v Kenneth Penias [1994] PNGLR 49; The State v Thomas Madi (2004) N2619). I will return to these cases presently.
    
28. Mr Tamate urged the Court to impose a sentence that will reflect the prevalence of this offence and that this particular offence was committed under circumstances of aggravation.
    
29. Aggravated rape under Section 347(2) of the Code carries the maximum penalty of life imprisonment, subject to s.19 of the Code.
    
30. Rape, whether aggravated or not, is a most intimate invasion to a person's body. The offence had traditionally been against women, though the recent amendments to the Code (SOCACA of 2002) now make it gender neutral, Parliament recognizing that men can also be raped or sexually penetrated against their will.
    
31. Be that as it may, women and girls continue to be the main victims of rape.
    
32. The statement by the court in R v Billam [1986] IWLR 349 which was adopted and applied by in The State v Peter Kaudik [1987] PNGLR 201 at p.205, aptly describes the effect of rape on the victim in the following terms:
    

"Rape involves a severe degree of emotional and physiological trauma; it may be described as a violation which in effect obliterates the personality of the victim...Rape is also particularly unpleasant because it involves such intimate proximity between the offender and the victim. We also attach importance to the point that the crime of rape involves abuse of an at which can be a fundamental means of expressing love for another and to which, as a society we attach considerable value."

33. In The State v Kenneth Penias (supra), Injia J, (as he then was) said at p.51 that –
    

"Rape constitutes an invasion of the privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone to men... who prey upon them and rape them...They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be at anytime of the day. At times because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in the country. Women... are living in fear because of the pervasive conduct of men...Our women... who once enjoyed freedom and tranquillity are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be severely punished with a strong punitive sentence."

34. In Aubuku v The State (supra), the Supreme Court set guidelines for different categories of rape. For aggravated rape such as when the perpetrator stands in a position of trust, the starting point is 8 years. Positions of trust are not limited and may extend to such de facto relationships such as vehicle operator and his passengers (Meaoa v The State [1986] PNGLR 280).
    
35. Sentences have since steadily increased due to the fact that the offence of rape has continued to rise.
    
36. In Lawrence Hindemba v The State (supra), the victim, a 10 year old girl was returning from school. The prisoner took her into the nearby bushes and raped her after threatening her with a pocket knife. At the Trial, he was sentenced to 10 years. On appeal, however, this sentence was increased to 15 years.
    
37. In The State v Tomitom (supra), the prisoner and another person accompanied the victim who was related to him by marriage, and another woman. The other woman and the prisoner's friend walked into the bushes leaving the prisoner with the victim. The prisoner turned on the victim and raped her. The court sentenced the prisoner to 15 years for breach of trust among other reasons.
    
38. Now, coming to the present case, I note firstly the prisoner's mitigating factors. I am of the view that this is not the worst kind of rape. Hence, it will not attract the maximum penalty of life. The prisoner is a first time offender. Even though he expressed remorse, I view that this was not genuine as he maintained, despite his conviction, that he had sex with the complainant in the Rice Industries toilet and not in the bush as found by the Court and that sexual intercourse was consensual. So in effect, there is only one mitigating factor in his favour.
    
39. Against him, however, are the following. The offence of rape and aggravated rape at that is very prevalent in the country.
    
40. Secondly, the prisoner used an offensive weapon to threaten the victim into submission. Not only that, he was in a position of trust which he breached. Even though the complainant was not related to him, there existed a de facto relationship of trust because her mother treated him as her brother and the complainant and her siblings regarded him as their uncle. And he reciprocated by regarding them as their nephews and nieces. The two families were close and shared things.
    
41. To take advantage of the complainant, the prisoner had to concoct a story to deceive her mother – the woman whom he regarded as his sister – into believing that there was indeed a man who was interested in her daughter. She believed and trusted the prisoner and released her daughter to him.
    
42. Did she suspect that he might endanger or subject her daughter to danger? No! Because she trusted the prisoner as one would trust a blood brother.
    
43. It is true that the complainant did not suffer any physical injuries, however, what do we men know about the pain that women who are abused and raped feel? We do not and we can't even understand what it feels like to be sexually penetrated against our will, the helplessness and hopelessness and feelings of worthlessness that may accompany such an act of invasion of our most intimate privacy.
    
44. This court and the Supreme Court have said again and again that stiff punitive sentences should be visited upon perpetrators of rape and other sexual crimes against our womenfolk.
    
45. While such sentences principally are for the purpose of retribution and to exact respect for the law and the right of women by people like the prisoner for our mothers, daughters and sisters, I think another important objective for long punitive sentences is not so much to deter or rehabilitate an offender but to keep him away from society so that our women-folk can feel free to walk around without fear of being raped.
    
46. I say this because men who had raped once will most likely rape again. And there may be a lot of reasons why they do that and not all of them do it for sexual gratification only. Some offenders are psychotic, some feel a false sense of power and enjoy exercising it over the weaker of the species or gender.
    
47. That is why rapists ought to be given appropriately stiff and long sentences so that society can be given a respite from this spiralling scourge that is cutting into the fabric of our society. So what would be an appropriate sentence for the prisoner?
    
48. This is a case where there is not one but two circumstances of aggravation. The prisoner threatened the complainant with a knife and also breached the trust the complainant had in him as a de facto uncle.
    
49. Hence, I think the starting point should be now slightly above that which was set in Aubuku's case for the obvious reason that the Aubuku's principles are now 26 years out-dated and rapes have not been diminished or decreased. If anything, they continue to rise. Hence, I set a starting point in this matter at 10 years.
    
50. And because of the aggravating circumstances present in this case, I feel a head sentence of 12 years.
    
51. I, therefore, sentence the prisoner to 12 years in hard labour. From this, 3 years 8 months and 8 days are deducted for pre-trial custody period. The prisoner will there serve the balance of 8 years 3 months and 22 days at Biru Corrective Institution.
    
52. As to the prisoner's plea for a suspended sentence so that he can pay compensation, I do not think that is appropriate in the circumstances.
    
53. There will, therefore, be no suspension of the sentence.
    
54. Sentenced accordingly.

______________________________________________________
Public Prosecutor: Lawyers for the complainant
Public Solicitor: Lawyers for the accused