N5769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.886 OF 2013

THE STATE

V

KAMINIEL PARAUT
(NO.3)

Kokopo: Lenalia, J.
2014: 14th, 19th August 5th, 10th, 22nd & 23rd September

CRIMINAL LAW – Rape – Sentence after finding of guilty – Criminal Code s.347 (1) & (2).) 

CRIMINAL LAW – Sentencing principles – Deterrent sentence called for

Cases Cited.

John Aubuku v The State [1987] PNGLR 267
Thomas Waim v The State (1997) SC 519
Ian Napoleon Setep v The State (2001) SC 666
The State v Francis Kolitz (19.7.07) (Unreported judgment delivered on 19.7.07) Cr.No. 1604 of 2006
The State v Pais Steven Sau (2004) N2588
The State v Flotime Sina (No.2) (2004) N2541
The State v Junior Apen Sibu (No.2) (2004) N2567
The State v Ilam Peter (2006) N3090

Counsel:

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

23rd September, 2014

1. LENALIA, J: The prisoner in this case was found guilty on a charge of rape contrary to s.347 (2) of the Criminal Code (as amended). The evidence upon which the prisoner was found guilty, came from the victim alone, Ruth Graham and the following documentary evidence were tendered by consent: 

•	Record of interview – Ex. "1" & "1a" for the English translation.
•	Statement made by Allan Vovono a community leader – Ex. "2"
•	Statement by Peter Berick – Ex. "3".
•	Statement by Johnson Bomokar interviewing officer – Ex. "4".
•	Statement by Joe Martin corroborator – Ex. "5".
•	Statement by Allan Pitel, husband of victim – Ex. "6". 

Relationship

2. The prosecution evidence showed that, the victim and prisoner are first cousins. This is because, the mother and father of victim are blood brother and sister. They all come from Rakunai village, Gazelle District, ENBP. They are now residing at Tavilo settlement, still in the Gazelle District, East New Britain Province. 

3. Kaminiel Paraot, you were found guilty on the evidence that, on 21st February, 2013 the victim Ruth went to the garden in the afternoon at about 2pm to harvest garden foods for her family to prepare for dinner. She went to the garden with her son. Her husband's name is Allan Pitel. 

4. Mr. Pitel (See Ex. "6") confirmed that the victim came home crying that afternoon. While the young lad was busy cutting grass on the other side of the garden, the prisoner did what he did to Ruth Graham. 

5. As the victim was collecting food, unknown to her, the accused came from her back then grabbed her and pointed a small bush knife at her. Her young son was still on the other side of the garden busy with cutting grass. The accused pushed Ruth down to the ground and there after he sexually penetrated her vagina against her will by pushing his erected penis into her vagina. Evidence suggests that, there may have been the possibility of the victim and prisoner having incestuous relationship since 2006. 

Addresses on Sentence

6. When allocutus was administered to the prisoner, he said, he would remain silent and live it to his counsel to address the court on an appropriate penalty.

7. Mr. Kaluwin submitted the following mitigating factors:

-	Previous good character,
-	He has a young family with the wife from Namatanai. She has left to go home,
-	Court to consider the prisoner's good character and that this case does not deserve imposition of the maximum penalty of life imprisonment, 
-	There were no injuries caused to the victim,
-	The victim was older than the prisoner.

8. Counsel submitted that the court should consider this case involved incest and there were elements of consent because there had been prior engagement of sexual intercourse between the prisoner and the victim. 

9. Mr. Rangan of counsel for the prosecution submitted that the court ought to consider a deterrent penalty to curb the crime of rape. Counsel asked the court to consider compensation had been paid but the shell money paid was low in its value. Counsel submitted that due to the seriousness of this crime, the offender should be sentenced above 15 years imprisonment but below the penalty that was imposed by this court in The State v Himson Piamia (6.3.2014) Cr.No.1219 of 2013. 

10. The offender in that case was sentenced by this court to 25 years for aggravated rape. In that case, it was a gang rape where the offender raped the victim in the presence of the mother who stood observing and other siblings of the victim and the prisoner in that case was together with his brother. The case before me is one of rape couple with elements of incest.

LAW

11. The maximum penalty provided under s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 is 15 years imprisonment. Subsection (2) of the same section states that where an offence of rape is committed with circumstances of aggravation, an accused person could be liable to life imprisonment. The court has discretion to impose a term lower than the prescribed 15 years or life imprisonment. This section states:

 "347. DEFENITION 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."

12. Subsection (2) refers to "circumstances of aggravations". Those are factors which make the offence of rape serious when it is committed against a victim. Circumstances of aggravations are not fully defined in Subsection (2) of the above Section, but s.1 of the Criminal Code defines the phrase "circumstances of aggravation" in the following words: 

"Circumstances of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

13. Further definition of the term can be found in s.349A (a)(i) of the Criminal Code as amended. There may be other forms of aggravations and as such the phrase or definition cannot be limited to what is defined in that provision. It states:

 "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 tortures 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 complainant was pregnant at the time of the offence; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS)."

14. The prisoner's case falls under Subsection (b) of the above section. He committed the crime whilst having in possession of a small bush knife. He used the knife to threaten the victim and thereafter, he raped her. Section 347A(2) & (3) of the Criminal Code defines consent in the following terms:

 "(2) Circumstances in which a person does not consent to an act include but not limited to, the following:-

(a)	the person submits to the act because of the use of violence or force on that person; or

(b)	the person submits because of the threats or intimidation against that person or someone else; or

(c)	the person submits because of fear of harm to that person or to someone else; or

(d)	the person submits because he is unlawfully detained; or

(e)	the person is asleep, unconscious or so affected by alcohol or other drug so as to be incapable of freely consenting; or

(f)	the persons is incapable of understanding the nature of the act or communicating his unwillingness to participate in the act due to mental or physical disability; or

(g)	the person is mistaken about the sexual nature of the act or the identity of the person; or

(h)	the person mistakenly believes that the act is for medical or hygienic purposes; or

(i)	the accused induces that person to engage in the activity by abusing a position of trust, power or authority; or

(j)	the person having consented to engage in the sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity; or

(k)	the agreement is expressed by the words or conduct of a person other than the complainant.

(3)	In determining whether or not a person consented to the act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:-

(a)	the fact that the persons did not say or do anything to indicate to a sexual act is normally enough to show that the act took place without the person's consent; and 

(b)	a person is not to be regarded as having consented to a sexual act just because – 

(i)	he did not physically resist; or

(ii)	he did not sustain physical injury; or

(iii)	on that or an earlier occasion, he freely agreed to another sexual act with that person or some other person."

 (Emphasis added).

15. The prisoner's counsel raised the issue that, there may be elements of earlier consensual acts of intercourse by means of having incestuous relationship is settled by Subsection (3)(b)(iii) of the above provision. 

16. As I said earlier, the maximum penalty provided under s.347(1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 is 15 years imprisonment. But Subsection (2) of the same provision states that where an offence of rape is committed with circumstances of aggravation, an accused person could be liable to life imprisonment. 

17. The court has discretion to impose a term lower than the prescribed 15 years or the life imprisonment. Other factors of aggravations like in this case, may include factors such as breach of a position of trust, authority or dependency: (See Section 349A (e), or section 229E and or the use of violence such as was in the case of Thomas Waim v The State (1997) SC 519, or the case of John Aubuku v The State [1987] PNGLR 267 or as was in the case of Ian Napoleon Setep v The State (2001) SC 666 and many cases since the new legislation came into operation in 2003. 

18. On the recent trend of sentencing, on this circuit, this court in The State v Francis Kolitz (Unreported judgment delivered on 19.7.07) Cr.No. 1604 of 2006 sentenced the prisoner to a term of 17 years consecutive sentences for two charges of rape on the victim who was asleep at the times she was raped. I said in that case there was an element of abuse of trust because there was breach of the de facto relationship trust authority and dependency in the above case. 

19. 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 State v Ilam Peter (2006) N3090, the prisoner was sentenced to 14 years for a series of offences including rape. 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 year 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.

20. In the circumstances of the instant case, there was an existing relationship of trust. The facts are clear that the victim in this case was and is the first cousin of the prisoner. This is a charge of rape, the State pleaded the circumstances of aggravations. Even where the State did not plead circumstances of aggravations, court cannot pass a blind eye to this aspect on a serious case like this one. (See s.538 of the Criminal Code).

21. I have read the comments by those contacted by the Probation Officer. This case is a serious case and though the prisoner and the victim's relationship may have been incestuous in nature since 2006, no compensation has been paid by neither party. 

22. I have considered counsels submission on sentence and I consider this case to be very serious because the actors have been given a fair warning according to Ward Member Allan Vovono. Both the victim and the prisoner did not meet the dead line. I consider a sentence of 10 years imprisonment appropriate. He is sentenced to 10 years imprisonment in hard labour. The court suspends 3 years from this sentence on the following conditions:

1.	After serving the balance, he shall keep the peace for 2 years. The time spent in custody shall be deducted and he shall serve the balance. 

2.	He shall pay an amount of K500.00 compensation to the victim including 100 fathoms Tolai shell money.

3.	His bail money if not yet refunded can be converted toward part payment of Order 2.

4.	The amounts ordered in Order two shall be paid within six months.

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