N6441
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1058 OF 2013

THE STATE

V
ROBERT TIMITHY

Alotau:  Toliken, J
2016:   14th June, 20th July.

CRIMINAL LAW – Sentence – Rape with circumstances of aggravation – Company of another person - Plea – Mitigating factors – Guilty plea –  First time offender – Non legal provocation – Aggravating factors – Prevalent offence – Co-accused a juvenile – Prisoner corrupted juvenile by telling him to rape victim first – Appropriate sentence – 10 years less time in pre-conviction custody - Criminal Code Ch. 262, ss 347, 349A.

Papua New 	Guinea Cases Cited:

The State v Kaudik [1987] PNGLR 201 
The State v Kenneth Penias [1994] PNGLR 48
The State v Lenden Malabebe; CR 252 of 2013 (unnumbered judgment dated 16th June 2016)

Overseas Cases Cited:

R v Billam [1986] 1 WLR 349

Counsel:

R. Roalakona, for the State
C.Kambua, for the Prisoner

JUDGMENT ON SENTENCE

20th July, 2015
1.	TOLIKEN J.	On 14th June 2016 the prisoner Robert Timithy pleaded guilty to an indictment charging him with the rape of one Paula Simen (complainant) with circumstances of aggravation, at O’oya Village, Esa’ala District, Milne Bay Province on 15th March 2015 while in the company of another person thereby contravening Section 347(1) (2) of the Criminal Code Ch. 262 (the Code).

2.	The brief supporting facts are that on the day in question, the prisoner and his co-accused had met the complainant on her way to her house. The prisoner held the complainant’s hand and removed her skirts and tights. His co-accused then got onto of the complainant, spread her legs and sexually penetrated her by inserting his penis into her vagina without her consent. The co-accused left after sexually penetrating the complainant. The prisoner then also sexually penetrated the complainant without her consent by inserting her penis into her vagina.

3.	I confirmed the prisoner’s guilty plea after satisfying myself from the committal court depositions that the evidence supported the charge, and accordingly convicted the prisoner. I deferred sentence to a date to be advised. I do so now.

4.	While simple rape under Section 347 (1) of the Code carries a maximum penalty of 15 years, rape committed with circumstances of aggravation under Subsection (2) of Section 347 carries a maximum penalty of life imprisonment. Circumstances of aggravation are defined by Section 349A of the Code and include circumstances where the accused is in the company of another person or persons.

5.	Of course it is settled that the maximum penalty is usually reserved for those offences that can be considered as falling under the worst category. The peculiar facts and circumstances of a particular will also usually dictate a sentence.

6.	I must therefore determine firstly, whether this offence falls under the worst instances of rape. If it does, then the maximum can be imposed. If it is not, then I can impose a lesser sentence.

7.	The prisoner is 23 years old and comes from Budoegwana Village on Ferguson Island in the Esa’ala District of Milne Bay. He is the youngest in a family of four and is single. He is a Catholic and only has a Grade 3 education, hence, would basically be illiterate. Both his parents are alive and live in the village. The prisoner is a first-time offender and had been in custody for a period of 1 year, 2 months and 10 days.

8.	When asked to address the Court before sentence the prisoner said –

“I have nothing to say but I would like the Court to have mercy on me. I say sorry to Almighty God for breaking his holy law. Secondly, to the Queen, and to the Constitution for breaking it, to the Court and Court officers and those in attendance. I say sorry to the victim and her family for doing this to them. This is my first time to stand before the judge and before the National Court. I promise not to reoffend. That is all.” (Sic.)

9.	Ms. Kambua submitted on behalf of the prisoner that this is not a case of aggravated rape and therefore should attract a sentence between 5 – 10 years. Counsel submitted that the prisoner did not plan to rape the complainant, but only did so when the complainant disrespected him and his co-accused by brushing sand off her skirt into their eyes, and by further telling them to eat excreta when they protested against her actions as he told the police in his Record of Interview. He admitted to holding the complainant’s hand along the tract, removing her skirt and then telling his friend to sexually penetrate her which he did. He then followed suit. Counsel further submitted that no threats of violence or weapons were used against the complainant. She was not infected with an STI or become pregnant and that the prisoner did not repeatedly rape her. The prisoner is also a first time offender.

10.	The prisoner’s Pre-sentence Report speaks favourably of him. He was of prior good character prior to this offence. And though illiterate he had, between 2014 -205, served as President of the Catholic Youth in his local ward. Customary compensation had been paid by the prisoner’s father to the complainant. This comprised of 2 x traditional Bwegana long yams, 3 x baskets of 3 round yams and 15 x baskets of thorny yams, a total monetary value of which was estimated by the author of the report to be K940.00. The prisoner’s father was unable to give a live pig because his pigs were still small, but if ordered to do so, he said he will. The prisoner was considered a suitable candidate for probation supervision. 

11.	Ms. Roalakona for the State submitted that the prisoner deserves an immediate custodial sentence. And because of the aggravated nature of the offence and its prevalence, Counsel submitted that an appropriate sentence should be 15 years.

12.	Is this a worst instance of this type of rape? I agree that it is not, but the fact that it was committed in the company of another person should place the prisoner’s culpability at mid-level. I fix a starting point at 12 years.

13.	I find the following mitigating factors in favour of the prisoner:

1.	He pleaded guilty early to his charge thus saving time and money for the state and further saving the complainant from coming to court and re-living her ordeal had trial be forced.
2.	He is a first time offender.
3.	There was non-legal provocation of the prisoner and his co-accused when the victim brushed sand into their faces and eyes from her skirt and further when she told them to eat excreta when they protested.
4.	The prisoner did not use force or threats of violence.
5.	He did not infect her with a Sexually Transmitted Infection.
6.	He did not make her pregnant.  
7.	Though he was in company of another person, the prisoner sexually penetrated the complainant once only.
8.	The prisoner has expressed genuine remorse.
9.	Customary compensation has been paid to the complainant.

14.	Against him though are the following aggravating factors:

1.	The prisoner was in the company of another person – a juvenile actually, who has already been sentenced for his part in the crime.
2.	He was the main perpetrator.
3.	This is a prevalent offence.

4.	The co-accused was a juvenile who the prisoner here corrupted by influencing him to take advantage of the complainant. Corrupting a juvenile and influencing him to commit a crime is an aggravating factor that can be appropriately taken against an adult co-offender.

15.	What then should be an appropriate sentence? Rape is a very serious offence which must be visited upon with an immediate custodial sentence – one which should be long enough to not only punish and deter the offender, but also to exact respect out of the offender for the rights and dignity of our women and girls. Our women are not sex objects and their rights as human beings, guaranteed by our Constitution, International Human rights conventions and by Divine edict, must not be allowed to be trampled upon with impunity.

16.	Strong views have been expressed by the courts on this cancer that continues to chew away and erode a thread that helps to spin the fabric of our society – respect for the bearers, carers and sustainers of society – our womenfolk. For instance, in The State v Kaudik [1987] PNGLR 201, His Amet J (as he then was), cited with approval a statement by the English Court of Appeal in R v Billam [1986] 1 WLR 349 , which tersely describes  the effect of rape on victims in the following terms: 
“Rape is generally regarded as the most grave of all the sexual offences …
Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse, associated violence or force and in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy. We do not believe this latter fear should be under-estimated because abortion would usually be available. This is not a choice open to all women and it is not a welcome consequence for any. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value.”
17.	Injia J (as he then was) in The State v Kenneth Penias [1994] PNGLR 48 remarked that: 

“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 … 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. Therefore, the sentence I will impose on the prisoner is intended to punish him and deter others.”

18.	So I must impose a sentence that will not only serve to protect victims of rape and other sexual offences, but most importantly punish and deter those who have no respect for women. 

19.	 I wish only to cited a recent case of mine, The State v Lenden Malabebe; CR 252 of 2013 (unnumbered judgment dated 16th June 2016), which facts are quite similar to the current case, except that there were more aggravating factors there. The offender there is from nearby Goodenough Island and had raped the victim whom he was angry with for being what he said a messenger between his daughter and her boy friend. I fixed a starting point of 10 years for his offence and imposed a head sentence of 11 years.

20.	 A lot of rape offenders are village people like the prisoner here. Most are illiterate and unsophisticated, but that does not mean that they do not know that rape is wrong. The offence of rape was not introduced into our societal norms by the arrival of our colonial masters with their laws. Rape was an actionable and recognized customary offence which in days gone by resulted in wars. So no villager, simply or unsophisticated as one may paint them, should be excused for committing this atrocious, degrading and dehumanizing crime. And no-one should think that he can get away simply because compensation has been paid – which unfortunately seems to be the general thinking of many people today.

21.	For this offence, I am of the opinion that an appropriate sentence should be 10 years. I therefore sentence the prisoner to 10 years imprisonment. From that I deduct 1 year, 2 months and 10 days.   

22.	Because of the prevalence of this offence and the need for deterrence (both personal and general) none of the resultant sentence is suspended to send a clear message to men that if you rape our womenfolk you do not deserve to leave freely in our villages, communities, towns and cities. 

Ordered accordingly.
_________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner