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State v Piamia [2014] PGNC 260; N5755 (6 March 2014)

N5755

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1219 OF 2013

THE STATE

V

HIMSON PIAMIA

Kokopo: Lenalia, J.
2014: 12th, 21st February & 6th March

CRIMINAL LAW – Rape – Plea of guilty – Sentence – Section
347 (1) (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

CRIMINAL LAW – Sentencing principles in rape cases – Circumstances of Aggravations – Use of weapon to threaten the victim – Serious consideration on the manner of approach to the victim – Rape happened just outside the house where she was threatened with her mother, her two young sisters and her children.

Cases cited.

John Aubuku v The State [1987] PNGLR 267
The State v Kenneth Penias [1994] PNGLR 48
The State v Thomas Waim [1995] PNGLR 187
Thomas Waim v The State (2.5.97) SC519
Lawrence Indemba v The State (27.10.98) SC593

Counsel:

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

SENTENCE

6th March, 2014

1. LENALIA, J: The prisoner Himson Piamia pleaded guilty to one count of rape with aggravations contrary to s.347 (2) of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Circumstances of aggravation are pleaded in or on the indictment with the nature of aggravations including raping the victim who was 9 months pregnant at the relevant time.

FACTS

2. The facts of this case are very short but very serious indeed. On 16th March 2013, at about 2:00am, the victim and her children, her two sisters and their mother were sleeping in their house at Bitavavar village. Their house is situated down in the valley where there are no other houses close to them.

3. While they were asleep, the prisoner and his brother Ronthan Piamia came down the valley leading to where the victim's family house is situated alone in that valley and they used bush-knives to cut around the walls of the victim's house and called out for the victim to come out. In the process of cutting the walls, an infant's head was almost cut. By God's grace, this did not happen.

4. In fear, the victim came outside the house with her little daughter holding a torch. On seeing her together with her young child and their torch light, she was ordered to go back into the house and leave her daughter and the torch and to come out to see them by herself. As soon as she came outside, the prisoner took a bush knife and placed it against the victim's throat and forced her down to the ground and sexually penetrated her against her will. What was being said and done to the victim, all the family members in the house heard because, the rape took place right next to the door of their house.

5. As soon as the prisoner withdrew, the victim stood up to walk back into the house. As she was on her way to the door, the accused brother who is still on the run Ronthan Piamia, pushed his bush knife onto her neck and again forced her down to the ground where he sexually penetrated her against her will.

Allocutus

6. On his allocutus, the prisoner said, he is sorry for what he did to the victim. He asked if he could be given a good behavior bond. The defence counsel applied for adjournment and for the court to direct a pre-sentence report from the Community Base Correction Office. We adjourn for that purpose until 21st February for addresses on sentence. Counsels addressed the court on sentence on that date.

Addresses on Sentence

7. Mr. Kaluwin on behalf of the prisoner asked the court to consider the following mitigations:

➢ The prisoner's guilty plea,
➢ His co-operation with the police investigating officers,
➢ He agreed with the prosecution that the prisoner has a prior National Court conviction,
➢ That he is a young man,
➢ Submitted for a sentence that would be suitable to reform him so that when he goes back home to his community, he will be a better person and
➢ For the Court to consider the terms of the pre-sentence and means assessment reports.

8. Mr. Rangan on the other hand addressed the court on the serious nature of the crime of rape and asked the court to consider the violence that was used to secure or have access to sex. Counsel submitted that this is one of those worst type rape cases because it was carried out with violence and because he was in the company of another person who was his own brother.

Pre-Sentence & Means Assessment Reports

9. I have considered comments of those who were contacted by the Community Base Correction Service Office in Kokopo. The prisoner admitted to the officer preparing the reports that, since he was adopted, he had been brought up in the environment where he was exposed to criminal activities and he had been brought up with it.

10. The father of the prisoner said, he is sorry for what his son had done and he is willing to make settlement by paying some compensation to the victim and her relatives.

11. On the side of the victim, the victim herself said 16th March 2013 to her is a remembrance day because on the night of that day she was raped in front of her family members. She said, she will live with shame until she is called to leave the world. Ms. Doreen Valaun, the eldest sister of the victim Ovin Valaun said, the crime committed by the prisoner and his brother who is still on the run is very serious and the prisoner should be severely punished.

Application of Law

12. The charge of rape is very serious because sexual intercourse is had against the will of one party. As usually is the case, this crime involved the gender issue, survival of the fittest. The crime committed by the prisoner is defined in s.347 (1) (2) of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002as follows:

"347. Definition 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."

13. Aggravating circumstance associated with the charge is pleaded on the indictment. It pleads that the relevant time, the victim was pregnant. Note here that, not only that the victim was 9 months pregnant, but added to such aggravations is what Section 349 (a) and (b) define. The first aggravation in the above proviso is, the prisoner was in company of another person namely his own brother Ronthan Piamia. Somehow that person is not in court today (See Subsection (a).

14. A number of other aggravating factors must also be considered. This crime was committed in presence and company of another person. Such aggravating factor is defined in Subsection (a) of the offending provision. It is clear from the facts, the accused and his brother used force to threaten the family who were enjoying their sleep. Pursuant to Subsection (b) where threats of violence are applied to achieve rape, it is an aggravation. This is evident from the following provision. Section 349A of the Act states:

"349 A. 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).

15. The crime of rape is a very serious indeed. Ordinary case of rape carries with it the maximum penalty of 15 years. Where, rape is committed with aggravation such as the instant one, the prisoner is liable if the court is minded to life imprisonment. The rationale behind the legislature fixing life imprisonment for Subsections (2) is that an offender who comes under definition of s.6A and s.349A (e) in cases where there is breach of trust, and in this case where threats of violence were used against the victim by application of bush-knives as was in the circumstances of this case, life imprisonment is prescribed.

16. The Supreme Court has on numerous occasions expressed the view that, rape is a violation of the women's right of privacy. Where sex is had without consent, it is an act of selfishness and there is no love in it. Expressing this concern, the Supreme Court in Lawrence Hindemba v State (1998) SC593 said:

"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."

17. The sentencing trend in more recent rape cases has seen an increase because of factors such as offenders using force, or where victims are of young ages, or where there has been threatened force on victims and injuries caused to the prosecutrix, or where there has been abduction. Such cases should attract sentences between 15 to 20 years.

18. I acknowledge the force of the argument for higher penalties in cases of aggravated rape. To achieve the intention of the Parliament, the Courts need to follow what the Supreme Court said in the above case with some adjustment according to the circumstances of each case and extending the range upward where there are multiple factors of aggravations. This is the trend that has been followed so far in many cases.

19. An example of such appropriate approach can be seen in cases such as in State v Dii Gideon N2335 (2002) Injia J (as he then was) where a sentence of 25 years was imposed for a pack rape by 3 men of a 3 months pregnant overseas visitor with threats of use of weapons and after a home invasion and robbery.

20. The prisoner's case was a pack rape. In another pack rape case that of The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Isaac Sip (No 2) (2004) N2543 Kandakasi J, imposed sentences of 18, 20, 22 & 25 years for a gang rape by 10 men after a planned abduction in broad daylight with threats to third parties with bush knives after entering a private home in which the victim was taking refuge. They pack raped the victim there.

21. In The State-v-Thomas Waim [1995] PNGLR 187, it was a case of pack rape. The prisoner was one of the men who raped the victim after they abducted her and introduced her to his friends who later took turns to rape her. The prisoner was charged with four counts of rape with various aggravations. He was sentenced to 25 years.

22. Rape is one of the most serious violent crimes in our criminal law. In The State-v-Peter Kaudik [1987] PNGLR 201, the court there held that,"the offence of rape is a serious crime which calls for immediate punitive custodial sentence than in wholly exceptional circumstances".

23. Except for those offences carrying mandatory minimum or maximum penalties, the National Court has unfettered discretion to impose a term of years to an appropriate sentence in each case. The Court will have regard to basic principles of sentencing that, each case must be sentenced on its own facts and that the maximum is reserved for the worst type case or cases. In Stanley Sabiu-v-The State (2007) SC866 the Supreme Court after reviewing suggested guidelines for sexual penetration cases in the National Court cases of The State-v-Pennias Mokei (No 2) (2004) N2635 and The State-v-Ndakum Pu-Uh (2005) N2949, said:

"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him."

24. The case of John Kalabus-v-The State [1989] PNGLR 195 stands for the proposition that, the maximum sentence is reserved for the worse type case of a particular crime. In offences like rape including all sexual crimes, the Criminal Code defines what the aggravations are.

25. The Court takes into account the fact that, you well planned to commit this offence against your wife. Rape is one of the most serious violent crimes in our criminal law. In The State-v-Peter Kaudik [1987] PNGLR 201, the court there held expressed serious concern about the crime of rape because it is carried out without respect to women and in our time young girls. According to our Constitution men women or young females and young males have equal rights to the protection of law. Provisions of the Constitution like, s.32 right to freedom, s.33 other rights and freedoms, s.35 the right to life, s.36 freedom from inhuman treatment, s.38 general qualification on qualified rights, s.42 liberty of people and s.44 freedom from arbitrary search and entry into personal property except by order of the court. The Constitution covers all other areas of protecting people's lives and properties.

26. In my view except for the fact that the prisoner is young, no other exceptional circumstances exist in this case which 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 (supra) at 204: "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."

27. I have considered what the prisoner's guilty plea and what he said in allocutus. I have considered his statement on allocutus together with his counsel's address on mitigating circumstances. I have also considered Mr. Rangan's address on aggravating circumstances. I treat your case differently from other rape cases because, you used a knife to first cut around the wall of the house where the victim, her young sisters and her mother were sleeping. Then when the victim got frightened she came out and submitted herself to you and despite her submission, you applied the bush-knife and placed it on her throat and ordered her to go down to the ground and you had forceful sex with her. Sex without love is greedy on your part.

28. On your case the Court considers the principles in cases such as Maima-v-Sma [1972] PNGLR 49 and that of John Elipa Kalabus-v-The State [(supra) which stand for the principle that the maximum penalty ought to be reserve for the worse case of a particular crime. On the instant case, I am of the view that, the Court should not impose the maximum penalty of life imprisonment but instead, it should impose a term of years. May the sentence of this Court sound a clear warning to similar offenders who harass their women folks and consider them or treat them as sexual slaves or objects.

29. To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the Judges of this Court for similar type offences.

30. It is worth mentioning the above cases to demonstrate to the public that the offence of rape is very serious so that all communities and the silent victims out there must know that their rights are protected by law and to see how serious the charge of rape is.

31. I have considered the prisoner's guilty plea to the charge, his statement on allocutus in which he expressed remorse. I have also considered the fact that there was force applied to threaten the victim with bush knives before the crime was committed. I consider all addresses by counsels on mitigations and aggravations.

32. I have also considered the comments in the pre-sentence report by the victim and her mother. In all the circumstances of the case because the crime was committed with violence and threats to cut her throat, I consider that this case was the worst type case and I am of the view that, the prisoner be sentenced to a term that will show the society's revulsion against this type of violation of the female you and your brother abused. This court sentences you to a term of 25 years imprisonment. The time spent in custody shall be deducted and he will serve the balance.

___________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused