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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1615 of 2010
THE STATE
V
Lorengau: Geita AJ
2013: 26th & 27th February
CRIMINAL LAW – Sentence – Two counts of Rape – Mitigation-Aggravation – Knives used as threat on the 17 year old juvenile - Section 347 Criminal Code. .
CRIMINAL LAW – Sentence – Trial conducted – totality principle considered – 8 years for each count considered appropriate – Cumulative with remissions for pre trial remand- Section 347 Criminal Code. – 13 years.
Acting Public Solicitor v Konis Haha [1981] PNGLR 205
Goli Golu v. The State [1979] PNGLR 653
John Aubuku v. The State [1987] PNGLR 267
James Yali v. The State (2006) N2989
Mase v The State [1991] PNGLR 88
Nick Teptep v. The State [2004] PGNC 148; N2612
Poni v. The State [2004] PGNC 116; N2663
Robert v The State (2007) PGSC 9; SC 87
Setep v.The State [2001] PGNC 14; SC666
The State v Robert Solomon (No.1) [2007] PGNC 148, NC 3215 of 19 April 2007
The State v Ludwick Jokar (No.2) [2008] PGNC 64; N3361
The State v Mark Keroa & Ors [1990] N878
The State v. Kenneth Penias [1994] PNGLR 48
The State –v- Sottie Apusa [1988-89] PNGLR 170
The State –v- Mitige Neheya [1988-89] PNGLR 174
The State v John Kalabus [1988] PNGLR 193
Counsel:
Mr. Camillus Sambua, for the State
Mr. John Kaleh & Ms Emma Wuur, for the prisoner
DECISION ON SENTENCE
27 February, 2013
1. GEITA AJ: The prisoner has been found guilty to two counts of rape of a 17 year old girl without her consent contrary to s. 347 (1) of the Criminal Code Act. Subject to subsection (2) the offence attracts a maximum penalty of 15 years. Where an offence under subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to section 19, to imprisonment for life.
BRIEF FACTS
2. For purposes of completeness, I have detailed the facts as found during trial and conviction on the two counts of rape on 25th February 2013. The facts reveal that on the evening of 29th February 2010 at Tulu village Lorengau, Manus Province the victim was on her way to wash when someone attempted to grab her from behind and she shouted for her mother. Since it was dark she could not recognise that person. When the incident surfaced it was confirmed that the accused was involved and the matter resolved by shaking of hands as it was within the family.
3. Again on 4 March 2010 at Tulu Village, as the victim was harvesting kaukau in her garden not too far away from the accused's house, the accused, her aunt's husband grabbed her from her back and when she screamed for help the accused threaten to kill her with a knife. The accused than took her into a nearby bush and forced her to remove her clothes but she refused and he threaten to kill her with a bayonet. The victim got scared and removed her clothes and the accused penetrated her. Whilst they were having sex her aunt Alice Tachik began calling out for her but was forced to remain quiet by the accused. After having sex with her the accused went into the bushes leaving the victim behind and was later found at the scene by her aunt Alice Tachik. When questioned why she failed to respond to her call she told Alice Tachik that her husband had raped her and threatened to kill her if she called out. After having penetrated the victim the accused fled into the bushes. Alice than told the victim that she would scold her husband about what he had done to her and so the victim left for her grandmother's house. She did not stay at her own house that night.
4. On 12 March 2010 whilst in the company of her friends Donna Eric and Rosevite Eric, Alice Tachik came and invited her to a private location to sort out the first rape incident. The victim went along with her grandmother Terry Likutu and waited but when the accused failed to turn up she left, leaving the victim behind. Not very long the accused appeared from the bushes and sat next to his wife under a big tree. Since nothing was being talked about the victim decided to leave but was called back. She returned and sat next to both of them when the accused moved further into the bush and called out to the both of them to go to him. Alice Tachik was then told by her husband to return to her house. By than the victim was scared and held onto Alice's hand and cried. The accused threaten to kill his wife if she remained behind and so in fear she left leaving the victim alone with the accused. The accused than forced the victim to remove her clothes but she refused so he removed the victims clothes and he penetrated her again. The victim cried and shouted but was threatened to keep quiet or else she would be killed with a knife. After having sex with her the victim went through the accused area down to the river. Along the way she saw Alice Tachik attempting to strangle herself on a guava tree nearby but was stopped and she accompanied her to the beach. Alice than told the victim that it was up to her to report her husband, the accused to the police and be brought to court.
ANTECEDENTS
5. The state presented a brief antecedents report on the prisoner with no prior convictions recorded against him. The prisoner is aged 43 years and comes from Kulu village in the north coast of Manus Province. He is Roman Catholic by faith. Both his parents have died with no other family members. He is married with 5 children aged between 2 to 16 years. He was educated up to Grade 3 and is a villager and has never been employed.
ALLOCATUS
6. Upon administering the allocatus pursuant to section 593 of the Criminal Code, the prisoner requested for courts mercy and said he was now worried for his children's welfare and education. The prisoner said sorry to the victim and the State and asked to be put on probation.
AGGRAVATION
7. The circumstances of aggravation in relation to this offence are as follows:
SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER
8. Mr. Tom Kaleh, counsel for the prisoner referred me to the following cases:
' Not Guilty plea-offender young adult -victim younger than offender-first offender-breach of trust-half brother- Sentence 45years-
Sentence reduced from 45 years to 24 years at 8 years per count;
Davani J presiding. Not Guilty – Trial – 2counts of rape - Aggravated rape- Accused-older than victim- wielded power – Sentence. 6 years for each count, cumulative 12 years.
9. Mr. Kaleh in his prepared submission submitted on behalf of the prisoner that this case was different from those enumerated above in that the offence committed here was less serious. Counsel urged the court to consider a starting point between 6-7 years to be appropriate under the circumstances with movements up or down depending on the mitigating, aggravating and or extenuating circumstances. He urged the court to be mindful of the totality principle. In short Council Kaleh urged this Court to weigh his client's case in light of the cases cited.
10. Counsel for the prisoner also submitted that the following mitigating factors should be taken into account in the prisoner's favour and they include; he was a first time offender; he showed remorse: acts of rape done solely and not in company of others; victim did not sustain injuries; no sexually transmitted deceases passed; victim spent 2 years 7 months 21 days in pre trial custody.
SUBMISSIONS FOR AND ON BEHALF OF THE STATE
11. Mr. Sambua for the State invited the Court to take into account that the prisoner was found guilty of two counts of rape after trial under aggravated circumstances. He correctly pointed out that the maximum punishments are best left for the worst types of cases. (Goli Golu [ 1979] PNGLR 65 and John Kalabus [1988] PNGLR 193 were cited in support)
12. The Court was also referred to the following cases viz:
Presided by Amet J – guilty plea –Sentenced 10 yrs for armed robbery and 12 years for manslaughter- Cumulatively. Total 22 years
SENTENCE TO BE CUMMULATIVE OR CONCURRENT?
13. On the question of what type of sentence I should impose the court was referred to these two cases. I am sure more recent cases on this issue may have been published but have not been brought to my attention. Furthermore without the assistance of on line Paclii Legal Library service here I have not been ably assisted. In light of this dilemma I feel at liberty to rely on the two cases referred to by Mr Sambua on this point. (Acting Public Solicitor v Konis Haha [1981] PNGLR 205 & followed in Public Prosecutor v Kerua [1985] PNGLR 85; State v Nentepa & 2 Ors [1990] PGNC 25; N878.)
14. The Supreme Court said in the case of Haha and I quote from the head notes thus:
3) In deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:
(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.
(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.
(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.
Counsel Sambua submitted that since the rape before this count constitutes two counts of rape committed on two different dates and locations but on the same victim the court consider imposing a cumulative sentence rather than a concurrent sentence.
SHOULD THE TOTALITY PRINCIPLE BE APPLIED?
15. I have been urged by counsels from both sides to be mindful of the dangers of this principle and to be weary of them. Put differently the totality principle requires that when consecutive sentences are imposed, a final review of the sentence be made by the court t ensure that the total is not excessive. In the case of Mase v The State [1991] PNGLR 88 at p 92 the court said this and I quote:
"It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances."
16. Applying these principles to this case now before me I consider that the rape of the victim was a separate offence and the punishments should be cumulative. I do not consider the punishment to be excessive and crushing on the victim. I make these observations on the prevalence of such offences and the upward trend in which the National and Supreme Courts have been imposing sentences in rape cases.
17. In our jurisdiction the Supreme Court case of John Aubuku v. The State [1987] PNGLR 267 is still being used as a yardstick when considering an appropriate sentence to impose in rape cases. Overtime the tariffs recommended therein have become out of date as being inadequate, inappropriate and no longer applicable to the circumstances of the country today. The prevalence of the crime of rape on innocent victims has prompted the courts to seriously review the existing guidelines with a view to increasing sentences. In 2006 Cannings J in the case of The State v. James Yali (2006) N2989 suggested ten years as the starting point after surveying a number of judgments delivered between 2003 and 2005 involving the offences of rape and sexual penetration of a child.
18. Courts have been very cautious in following this upward trend in tariffs for very good reasons, one of which is the observance of the principle of stare decisis: see Schedule 2.9 of the Constitution. The Supreme Court in the John Ambuku case however acknowledged that rape was a serious offence and could attract immediate custodial sentence except in very exceptional circumstances.
19. Both the National and Supreme Courts have come out publicly in their judgments condemning the crime of rape and described this evil in society in many ways. Some of those cases have been noted in this decision. However in this instant case I feel obliged to adopt the sentiments expressed by Injia, AJ (as he then was) in The State v. Kenneth Penias [1994] PNGLR 48 as it encapsulates societal need to punish rapists harshly. His Honour stated at p.51 and I quote:
"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. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time 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 this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, 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 punished with a strong punitive sentence."
20. Similar sentiments were expressed by Sevua J as he was than in the case of The State v. Nick Teptep 2004] PGNC 148;N2612. His Honour stated:
"Rape has become a very prevalent violent crime... 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."
REMARKS
21. The victim was between 17 years old when raped by the prisoner twice on the pretext of "kuskus" hunting. The victim, an innocent juvenile had accompanied the accused who was married to her aunt, hence her "father in custom" trusting that such a horrific thing would not occur to her. From evidence inference can be drawn that the accused had motive and that was to sexually penetrate his niece. The circumstances outlined in this case could be described as horrifying and an attack on an innocent victim and her decency. The prisoner's lust and desire to satisfy his sexual gratification culminated into the two acts of rape, on the 4th February 2010 and another on 12 March 2010.
22. Rape is a horrifying incident. You abused your trust as the "small father" took advantage of that relationship and raped an innocent juvenile on more than two occasions. Since you have not been charged for those acts of rape you cannot be punished for them here. You broke the trust the victim had on you as "small father": The State –v- Sottie Apusa [1988-89] PNGLR 170, The State –v- Mitige Neheya [1988-89] PNGLR 174. You were entrusted with the sacred role as a defender and provider according to custom by virtue of your marriage to the victim's aunt, hence the victim calling your wife her "small mother" all throughout the trial because of that customary respect and obligation.
23. The offence in this case was committed by the prisoner who abducted the victim and raped her in her garden and under the tree. The circumstances of aggravation in relation to this offence are as follows:
1. A weapon, a bush knife, was used to frighten the victim;
2. The rape had been planned;
3. The victim was subjected to further sexual indignities and perversions;
4. The victim is a young teenager;
5. There were no obvious signs of distress, pain and horror; (matter two years old)
6. Repeated rape
24. The circumstances of mitigation in relation to this offence are as follows:
1. He was a first time offender;
2. He showed remorse:
3. Acts of rape done solely and not in company of others;
4. Victim did not sustain injuries;
5. No sexually transmitted deceases passed;
6. Prisoner spent 2 years 7 months 21 days in pre trial custody.
25. Taking all of the circumstances into account, those in the prisoner's favour and those against the prisoner I consider that the appropriate sentence in respect of each offence of rape be the same. Furthermore I have taken into account the sentence imposed in the case of The State v Ludwick Jokar (No.2) [2008] PGNC 64; N3361 and apply it here as a yardstick. However since it's been more than six (6) years since the decision, there has been an upward trend in Courts sentencing in rape cases. I have referred to only two cases here to show these trends and show societal expectations in general.
26. The sentence I therefore impose upon you in this Indictment is as follows:
Count 1. Sentenced to 8 years imprisonment in hard labour.
Count 2. Sentenced to 8 years imprisonment in hard labour to be served Cumulatively upon the sentence for Count 1.
I also order a deduction of your pre trial custody period of 2 years 7 months 22 days, leaving you with the balance of 13 years 2 months and 3 weeks.
Sentences accordingly
______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner
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