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State v Okole [2016] PGNC 389; N6631 (9 September 2016)

N6631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1611 OF 2010

THE STATE

V

EPHRAIM OKOLE

Kokopo: Lenalia, J.
2016:10^th August, 6^th, &9^th September

CRIMINAL LAW – Charge of rape – Plea of guilty to rape with circumstances of aggravation – Criminal Code s.347(2) as Amended.

CRIMINAL LAW – Sentencing principles – Aggravating circumstances –
Victim step-daughter of prisoner – Case involving very serious aggravating circumstances as the offender is the step-father of the victim.

CRIMINAL LAW – Rape took place in family house where two offensive
weapons were used to threaten the victim – Due to such threats, though the victim cried, she could not be heard by her mother and grandmother in nearby house.

Cases Cited:

John Aubuku-v-The State [1987] PNGLR 267
Lawrence Hindemba-v-The State (1998) SC 593
Maima-v-Sma [1972] PNGLR
Robert Solomon v The State (2007) SC871
Stanley Sabiu v The State (2007) SC866
The State-v-Kenneth Penias [1994] PNGLR 48
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 Jeffrey Wangi (15.3.06) N3016
The State v James Yali (2006) N2989
The State v Ludwick Jokar (N0.2) (2008) N3362
The State v Petrus Polly (24.8.2016) Cr.No.1281 of 2015

Counsel:

Mr. L. J. Rangan,for State
Ms. J. M. Ainui, for the Accused

9^th September, 2014

1. LENALIA J: The offender on this case was charged with one count of aggravated rape. On 1^st of last month, the Court put the charge to the prisoner and asked if he understood it. In response, he said, he understood the charge. He was asked if the charge was true. In his answer, the accused said, it was true and said the allegations made against him are true. The Court entered a provisional guilty plea. The facts were tendered to the Court by the State prosecutor. After reading the facts, the Court was satisfied about the offender’s guilty and formally convicted him on the charge of aggravated rape under s. 347(2) of the Criminal Code.

2. The offence of rape is defined by the section charged and the Court notes the wording of the differences between Subsections (1) and (2). For ordinary rape case committed without aggravations, the prescribed maximum penalty is fifteen (15) years imprisonment. But like on this case where rape was committed with two circumstances of aggravations, the prescribed maximum penalty is life imprisonment. The above section states:

“(1) A person who sexually penetrates a person without her 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.”

3. The brief facts of this case are that, on 29^th May 2010 at Malakuna No.5, Kokopo District, East New Britain Province, the victim Jessica Ephraim had gone out to the garden working and about midday, she came home very tired. She had her bath and went into the girls’ room and slept. While she was asleep, the prisoner came into the room with two bush-knives.

4. She was surprised and while still lying down on the bed, the prisoner stood by her and placed one of the bush-knives on her right-hand side and the other was place on her neck. He started to ask her where she was the night before and with whom was she with.

5. The victim did not respond. He then forcefully removed her clothes and told her that, what was done to her the night before, he was ready to do it to her then. She cried, but the offender told her that, if she cried out loudly, he would cut her with the bush-knives.

6. After removing her clothes, he told the victim that, he was going to lick her vagina first. After licking her vagina, he laid on-top her and sexually penetrated her through her vagina. After sexually penetrating the victim, he got up and got dress and walked out with only one bush-knife. He left the other one in that room. Immediately after the offender walked out from the house, the victim got dressed and peeped outside to see if the offender had gone out. She noticed that the offender had gone and she walked out from the house to where her mother and her grandmother were and reported the matter to them immediately.

Addresses on sentence

7. In his allocutus, the prisoner said, he is very sorry for what he did to his step-daughter. He expressed remorse to the victim and his family. He said he has got children who are left without anybody to look after them as some of them are attending school. He asked for a lenient sentence.

8. For the prisoner, Ms. Ainui counsel representing the prisoner asked the court to consider the following mitigating circumstances:

➢ The prisoner’s guilty plea,
➢ He is a first time offender,
➢ It was a one off incident,
➢ Expression of remorse to family and victim,
➢ He co-operated with police during interview,
➢ Prior compensation of 100 Tolai shell money & K200.00 cash.

9. Counsel submitted that, the Court should consider a similar penalty that was imposed in the case of The State v Petrus Polly (24.8.2016) Cr.No.1281 of 2015 where this Court sentenced the offender to 6 years for aggravated rape which was suspended with conditions to pay compensation. The was aggravated rape one of digital penetration by fingers. It was a guilty plea and no serious injuries were caused to the victim.

10. In reply to the defence submission, Mr. Rangan cited a number of Supreme Court cases including that of Robert Solomon v The State (2007) SC871 and Stanley Sabiu v The State (2007) SC866 and submitted on the seriousness of the charge of aggravated rape. Counsel referred to a number of aggravating factors pleaded on the body of the indictment.

11. A legitimate issue raised by Mr. Rangan on the issue of breach of trust on the relationship of the prisoner to the complainant. Counsel argument is that though this was a one off incident, the offender raped his own daughter that is his step-daughter and the court ought to seriously consider this aspect. He referred to the big age difference between the offender and the victim. Counsel argued that the victim was 15 years while the prisoner was 52 years making 37 years difference.

Pre-Sentence Report

12. Only two persons were contacted by the author of the pre-sentence report. They are the mother of the victim Ms. Billson Litinga expressed the following concerns:

-the offender is an abusive person,
-when the two of them got married, the offender was so abusive to her,
-she got tired and they parted in 1990,
-during the period of their separation, she got married to a retired policeman from Rapitok village,
-out of that relationship, the victim Jessica was born,
-in 1996, the two of them remarried,
-they lived together until the crime was committed.

13. The victim Jessica Ephraim expressed similar sentiments including:

-due to the prisoner being so violent, she lived with her grandmother,
-she felt she was hated by the offender,
-she confirmed the prisoner raped her,
-that the prisoner used b/knives to threaten her,
-confirmed the offender paid compensation but she does not know where the compensation payment is,
-she demands K2000.00 compensation.

Sentencing Trends & the Law

14. The crime of rape has always been serious. This is because it is a violent and prevalent offence. The abhorrence of our community against this serious and immoral behaviour weakens the values of our societies which act is totally against our law and the custom. Various Judges of the National Court have expressed very serious concern about this crime be it ordinary, or aggravated like the instant one: The State-v-Kenneth Penias [1994] PNGLR 48.

15. On the instant case, circumstances of aggravations are pleaded on 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.

16. The prisoner’s case is aggravated by a number of factors. First this case involved a serious breach of trust. The definition of breach of trust covers step children like on this case where the victim was the prisoner’s step-daughter. I quote part of s.6A (1) (2) (a) of the Criminal Code which states:

“(1) When the term relationship of trust, authority or dependency” is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A “relationship of trust, authority or dependency” includes, but is not limited to, circumstances where -

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or ......

17. The next aggravation is the prisoner used two bush knives were used to
threaten the victim prior to committing the crime. This falls in aggravating circumstances defined in s.349A which includes threatening and abuse of the position of trust authority or dependency. Or quote part of that section which states:

“For purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a) the accused 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) ...
(d) ...
(e) the accused person , in committing the offence, abuses a position of trusts, authority or dependency, or”

18. Sentencing trends on rape cases are increasing. In the present case the offender has been charged with a one off incident of raping his step-daughter which is aggravated by breach of trust, authority or (and) dependency. The crime of rape is a violent and prevalent offence. There is widespread concern by the society about this type of behaviour committed towards women and young girls and boys like the instant case.

19. The Supreme Court cases of John Aubuku v The State [1987] PNGLR 267 Thomas Waim v The State (2.5.97) SC519 and Lawrence Indemba v The State (27.10.98) SC593 established that sentencing guidelines for rape cases and the two latter authorities say that there should be a gradual rise in sentences for the offence of rape.

20. The Supreme Court case of Robert Solomon v The State (2007) SC871was a multiple rape case where the trial Judge imposes sentence of 45 years for three counts of rape. The Supreme Court commented that though factual circumstances of the three charges were different, when considering the totality principle, the sentences imposed where excessive and sentences were reduced to 8 years each making a total of 24 years.

21. In the case cited by Ms. Ainui, that of The State v Petrus Polly (supra), that was a case of digital penetration by fingers. I differentiate that case from the instant one as the current cases consisted of penile penetration. It was a guilty plea and no serious injuries were caused to the victim. He was sentenced to 6 years wholly suspended with conditions.

22. I consider the sentencing trend by the National Court Judges. In the case of The State v Jeffrey Wangi (15.3.06) N3016, the National Court sitting in Biala, West New Britain Province sentenced the prisoner to a term of 14 years for the offence of rape. In that case the accused told the younger sister of the victim to go to the other side of the garden. After she was gone, the prisoner grabbed the victim, forced her down to the ground and sexually penetrated her without her consent. The trial Judge, Justice Cannings set out 25 relevant considerations to consider after the Court had identified the starting point in that case and the decision whether to reduce or lift the sentence. (See also The State v James Yali (2006) N2989.

23. In The State v Dibol Petrus Kopal (2004) N2778, the trial Judge sentenced the prisoner after being tired to 15 years. The circumstances of aggravations were not pleaded on the indictment. His Honour found on the trial that, as the proven facts of the case disclosed circumstances of aggravations, such should be taken into account on sentence. In The State v Joe Kanau Tomitom (21.2.08) N3301, the prisoner pleaded guilty to raping a girl who was related to him through marriage. He was sentenced to 10 years imprisonment.

24. 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.

25. 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.

26. On the instant crime, it was committed with serious aggravations. The victim was 15 years while the prisoner was 52 years old. Two bush-knives were placed one on the right hand side and the other on her neck before the prisoner raped her. She was threatened that if she cried out loudly, he would cut her. She surrendered herself because of fear.

27. I am of the view that, the action by the prisoner raping his step-daughter was a despicable act. Sentences imposed by the Courts of this country have not had any deterrent effect on men who prey upon young children female and males and women. What more is the prisoner breached the trust, authority and dependency which the victim of this case cast upon the offender to care and defend her.

28. Sentencing range of 15 years for the crime of rape was set by the Supreme Court in Lawrence Indemba v The State (supra). I differentiae the current case from that of Robert Solomon v The State (supra) where the Supreme Court reduced 20 years each for multiple counts of rape cases to 8 years on three consecutive sentences which resulted in the total of 24 years for the offender to serve.

29. The current case was a one off incident. I am of the view that, Robert Solomon’s case was affected by the totality principle and the range set there ought not to be applied to cases like the instant one.

30. To illustrate this concern I quote a passage from the case of Lawrence Hindemba v The State((27.10.98) SC593 where the Supreme Court 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.”

Mitigations & Aggravations

31. On sentence, I consider the prisoner’s guilty plea to this serious charge. I consider his addresses on sentence and his expression of remorse. I consider the fact that he has paid compensation through the Village Court where he paid K200.00 cash and 100 fathoms of Tolai shell money. I consider counsels’ submissions and the terms of the pre-sentence report.

32. The prisoner breached the trust reposed on him by the victim and members of the offenders’ relatives. Abuse of trust is very common between people who are expected to raise children in the manner expected of them by law and children have become victims of their own parents or as was in this case, the father whom the law and the community expect to help and raise them up to the stage where they can be able to care for themselves and her family when they grow older. But to turn around and commit the crime of rape, incest or other sexual offences on someone whom you have loved, such love virtually disappears and turns into hatred. In my view this is what occurred on this case.

33. The victim was 15 years at the time she was raped. The damage done to her was quite enormous and will remain with her for the rest of her life. The Courts of this country must be vigilant in sentencing offenders on sexual charges. When sex happens in the family environment, it destroys both the home and the community and the country as a whole. Love turns into hatred. Respect into disrespect and love totally diminishes and the trust reposed on parents totally vanishes creating distrust in the family unit and the community as a whole.

34. 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 due to the serious nature of this offence, I consider a sentence of 12 years should be the appropriate penalty. He is sentenced to 12 years imprisonment. He has already paid compensation and the Court will not order compensation. The court suspends 3 years from the sentence on condition that after serving 9 years, he shall keep the peace and be of good behaviour for 2 years.
______________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused