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State v Albert [2014] PGNC 256; N5770 (23 September 2014)

N5770

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1226 OF 2013

THE STATE

-V-

PETRUS ALBERT
(NO.2)

Kokopo: Lenalia, J
2014: 27th July,
22nd August,
2nd, 9th 22nd & 23rd September

CRIMINAL LAW – Charge of rape – Sentence after a finding of guilty – Criminal Code s.347 (1) (2) as Amended.

CRIMINAL LAW – Sentencing principles – Aggravating circumstances – Victim very young ten (10) years of age – Prisoner at time of offence, 72 years – Deterrent sentences called for.

Cases Cited

John Aubuku-v-The State [1987] PNGLR 267
Lawrence Hindemba-v-The State (1998) SC 593
The State v Dibol Petrus Kopal (2004) N2778
The State v Flotime Sina (No.2) (2004) N2541
The State v Pais Steven Sau (2004) N2588
The State v Ilam Peter (2006) N3090
The State v James Yali (2006) N2989
The State v Ludwick Jokar (N0.2) (24.4.08) N3362

Counsel

L. Rangan, for State
P. Kaluwin, for the Accused.

23rd September, 2014

1. LENALIA, J: On 9th of this month, the prisoner was found guilty on the charge of rape contrary to s. 347 (1) (2) of the Criminal Code. The offences of rape is defined by the section charged and note the wording of the differences between Subsections (1) and (2) which give the highlight of two sets of penalties in ordinary cases of rape and those which are aggravated by circumstances of aggravations. The above Section states:

"(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 as offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19 to life imprisonment."

2. The offence of rape is punishable by 15 years imprisonment. Where it is committed with "circumstances of aggravation" life imprisonment is the maximum. Although the Courts have been imposing sentences reflecting the seriousness of the offence, this has not had any effect on the desired purpose of deterring offenders. The Courts continue to hear cases of aggravated rape nationwide.

3. Petrus, your were found guilty on the evidence that, on 26th August 2013, at Ulaveo plantation, the 10 year old victim Anthonia Kavong left her parent's room at about 6 pm to play with her school mates at the field at the end of the compound buildings.

4. On her way, the prisoner asked her to come to his room and when she walked into your room you made her lay down on your bed and you sexually penetrated her by inserting your penis into her vagina. After having sex with her, she went out from that room. She reported the matter to her aunt the next day. She could not tell her parents immediately after she was raped because she feared her parents might belt her up. Next day when the auntie came past where the victim was sleeping on the verandah of her parents' room, she reported. Next day she told her parents and you were arrested and charged.

Addresses on sentence

4. In his allocutus, said his lawyer will address the court on an appropriate.

5. Mr. Kaluwin of counsel representing the prisoner asked the court to consider the following mitigations:

➢ The prisoner's previous good character,
➢ He is an elderly person on his early 70s,
➢ He is a first offender,
➢ It was a one off incident.

6. Counsel submitted that, the prisoner should be sentenced similar to the two cases that were heard in Duke of York. (See cases of The State v Robin Manuel (5.8.2014) Cr. No.182 of 2014 and The State v Nanas Libai (5.9.2014) Cr. No. 645 of 2014).

7. In reply to the defence submission, Mr. Rangan counsel for the State submitted on the seriousness of the charge of rape as there was no consent by the victim. He submitted, the victim was a baby at age 10 was not old enough to be sexually penetrated by anyone.

Law

8. The offence of rape is created by s. 347(1)of the Criminal Code and the penalty is prescribed as subject to Subsection (2), imprisonment for 15 years. On the instant case, circumstances of aggravation are pleaded in the indictment and therefore the maximum prescribed penalty of life imprisonment does apply in the discretion of this Court. This is to say if the court wants to impose the maximum penalty it could, depending on the circumstances of the case.

9. In John Aubuku-v-The State [1987] PNGLR 267 the Supreme Court provided guidelines to be taken as appropriate for the sentencing for rape although since then the Supreme Court has called for sentences to be reviewed upwards.

10. The relevant guidelines set out in the above case were:

"(1) the offence is a serious crime to be punished by an immediate custodial sentence other than in wholly exceptional circumstances,

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point (then, 5 years);

"a) violence over and above the force necessary to rape,

b) use of a weapon to frighten or wound the victim,

c) the rape is repeated,

d) the rape has been carefully planned,

e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind,

f) the victim is subjected to further sexual indignities or perversions,

g) the victim is either very old or very young,

h) the effect upon the victim, whether physical or mental,"

11. The above call was further reflected in another Supreme Court case of Lawrence Hindemba-v-The State (1998) SC 593 where the Court there stated that:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly reiterated 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."

12. On the instant case the court considers the serious issue of the young victim. She was only 10 years at the time and date you abused her. A number of other factors must be considered. Those factors include the big age gap between the victim and the prisoner. The prisoner was at age 72 years when he committed this crime which makes up a deference of 62 years.

13. Aggravating circumstance associated with the charge is pleaded on the body of the indictment. It pleads that the prisoner committed this offence without the consent of the victim and according to the definition of the term "circumstances of aggravation" such definition is not limited to those circumstances stated in s.349A of the Act. That section reads:

"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).

14. I cite a few cases to illustrate the sentencing trends for rape cases. In The State v Ludwick Jokar (N0.2) (24.4.08) N3362 a case by Davani, J: in Wewak where the accused was charged with two counts of aggravated rape, he was found guilty and imprisoned to 12 years cumulative sentences. In The State v Ilam Peter (2006) N3090, Lay, J: sentenced the prisoner for 14 years for a charge of rape and other sexual crimes.

15. In the present case, the circumstances of aggravation was the big age gap between the victim and the prisoner. Comparing this case with other cases like in The State v Dibol Petrus Kopal (2004) N2778 where no circumstances of aggravation were pleaded. Retired Judge, Lay J found on the trial, there were circumstance of aggravation (See also The State v James Yali (2006) N2989).

16. On other cases, in The State v Pais Steven Sau (2004) N2588, a case of rape, on a plea of guilty, the prisoner was sentenced to 15 years. In The State v Flotime Sina (No.2) (2004) N2541, the prisoner was sentenced to the maximum of 15 years. In the case of The State v Junior Apen Sibu (No.2) (2004) N2567 Kandakasi J, imposed sentence of 13 years imprisonment on a 16 years old man who raped a 10 year old victim relative. The aggravating factors in that case were the age factor and the fact that the victim was a relative of the prisoner.

17. I have considered addresses on sentence, by the prisoner, his lawyer on mitigations and the lawyer for the prosecution on aggravating circumstances. On sentence, I consider the circumstances of aggravation such as the victim was very young. I have considered the terms of the pre-sentence report. The father of the victim Raphael Kawong was contacted on his view about compensation. He said, the prisoner would not have anything to pay if compensation was ordered.

18. Patrick Amos the prisoner's wantok expressed similar sentiments about the prisoner's inability to contribute to compensation. The general principles of sentencing provide that the maximum penalty should be reserved for the worst cases: Maima-v-Sma [1972] PNGLR. On the instant case, having considered all mitigations and aggravating circumstances, and considering the age of the prisoner, the prisoner is sentenced to 8 years imprisonment less the custody period. The court suspends 2 years on condition to keep the peace for 2 years after his release.
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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused