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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO.1208 OF 2014
THE STATE
V
MAGUGU KAPINIAS (N0.2)
Kokopo: Lenalia J
2016: 2nd, 22nd, 23rd, 30thMarch, 3rd& 6th May
CRIMINAL LAW– Aggravated Rape – Sentence after finding of guilty Criminal Code s.347 (2) of the Criminal Code as Amended.
CRIMINAL LAW– Sentencing principles on rape cases – Consideration of
Appropriate penalty – Deterrent penalty called for.
Cases cited:
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
John Aubuku v The State [1987] PNGLR 267
Maima v Sma [1972] PNGLR 49
Mase v The State [1991] PNGLR.88
Lawrence Hindemba-v-The State (1998) SC 593
Public Prosecutor v Terrance Kaveku [1977] PNGLR.110
The State v Flotime Sina(No.2) (2004) N2541
The State v Ilam Peter (2006) N3090
The State v Ludwick Jokar (N0.2) (24.4.08) N3362
The State v Pais Steven Sau (2004) N2588
Counsel:
Mr. L. Rangan, for the State
Ms. J. M. Ainui, for the Accused
6th May, 2016
1. LENALIA, J: On 30th March this year, this court found the prisoner guilty on two counts of aggravated charged contrary to s.347 (2) of the Criminal Code.
2. The court found that between 1st and 31st December 2013 at Napapar No.5 village in Toma L.L.G. Gazelle District E. N. B. Province. The court found that the accused sexually penetrated Elmah Vunuvung without her consent. The first time the prisoner raped the victim was on the road side after she was chased by the prisoner. The second occasion was in the house belonging to the victim and her parents.
3. The court found that in both occasions, after sex, the prisoner threatened the victim and he repeated such threats to the victim because he was living with the victim and her parents. The court also found that, when the prisoner committed the two crimes, he did it with breach of trust authority and dependency. This is because the victim and the prisoner are closely related and they are blood relatives. Sexual intercourse was not denied.
Addresses on Sentence
4. On his last say, the prisoner was asked if he wanted to say anything before the court hear his lawyer address the court on appropriate penalty, the prisoner said, he is sorry for what he did to the victim. He said sorry to the victim’s parents and relatives. He also did the same to his own family members. He asked for forgiveness from heaven for what he did.
5. Ms. Ainui asked the court to consider the following mitigating factors:
6. Counsel submitted that, early action by the offender to pay compensation was evidence of genuine remorse. She asked the court to consider this as mitigation on behalf of her client.
7. Mr. Rangan on the other end submitted on aggravations and asked the court to consider there were very serious aggravations such as:
➢ There was serious breach of trust,
➢ Crimes committed with threats of violence,
➢ The victim and the prisoner are very close blood relatives,
➢ Because, the victim’s mother is a cousin sister of the offender.
8. Counsel submitted that, the crimes committed by the prisoner are very serious in the Tolai community because, the prisoner was living with the victim and her parents. Counsel submitted that due to the serious breach of trust between the offender and the victim, the court should consider a deterrent sentence. Counsel referred to a number of case law authorities some of which, the court will soon refer to a little later.
Pre-Sentence & Means Assessment Reports
9. Henry Ronga –The Ward Member of Rapitok No.3 Ward Mr. Henry Ronga expressed the view that, the offender had been an active member of the community youth activities. He confirmed the victim’s mother’s concern that the crime committed by the offender has tarnished their standing in the community because the offender is her cousin brother of the victim since the mother of the victim and that of the offender are biological sisters. He is of the view that if compensation is considered, the offender will need time to pay but that the relatives are eager to put up something to assist.
10. Elma Vunuvung – She is the victim. She expressed the view that though she agrees with the idea of compensation as agreed to by the parties, she would rather see the prisoner sent to jail for a long term of imprisonment due to the embarrassment caused by the offender between their families.
11. Fidelma Taling – Is the biological mother of the complainant. She expressed concern that, since the offender and the victim are closely related, the prisoner was with her family for a long time and he was treated like he is one of the children in the house. She confirmed submission by the defence counsel that before the prisoner was arrested by a bench warrant, he had commenced paying compensation. The sum of K2, 000.00 was agreed to be paid as compensation and the offender had paid K780.00. Those present at the mediation was Ward Member Mr. Ben Porono and the Ward Committee Mr. Peter Daniel.
12. Vilau Cicilia – Elder sister of victim’s mother confirmed that the victim and the offender are closely related.
13. Roddy Tatar – She is the mother of the offender. After the crimes were committed, she attended the mediation at Kerevat where an agreement
was reached that the offended and his relatives will pay K2, 000.00 to restore the relationship of families concerned.
14. Lorraine Pipi – Is the sister of the prisoner. Her only comment is that, the K600.00 bail can be converted toward part payment of the amount
agreed upon by the relatives of the offender and those of the victim.
Application of Law.
15. The offence of rape is defined by s.347 (1) (2) of the Criminal Code in the following terms:
“(1) A person who sexually penetrates a person without his/her consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.”
(2) Where as offence under Subsecti) is committed in &ـʔ  & ; &#i60;cstances oces of aggr aggravation, the accused is liable, subject to &##60;&<;ɘʔ< Section 19 prism./i>
>16.b>16. The The offence of rape per se is punishable by 15 years imprisonment. If rape is committed with circumstances of aggravations like on theant cwheree was bwas breachreach of t of trust, it is punishable by life imprisonment. On the instant case the circumstances of aggravations included the following:
17. As noted above, the crime of rape is carried out without aggravations, the maximum penalty of 15 years. But where the offence is committed with circumstances of aggravations like force, threats or application of offensive weapons pursuant to Sub-Section (2), the maximum penalty is life imprisonment.
18. Rape and other sexual crimes are so prevalent. The Courts have been imposing sentences reflecting the seriousness of this offence, but penalties imposed have not had any effect on the desired purpose of deterrence. This shows blatant disregard to the law and respect due to women and now very common where children as young as 3 years are abused by their so called protectors.
19. Young girls at the above age are so vulnerable to sexual crimes. They are supposed to be at the mercy of those who call themselves their protectors. Instead, people like you take advantage of girls like the victim of this case was merely 17 years when you raped her.
20. So the Courts must continue to impose sentences that will justify the pain, suffering and psychological traumas and damage caused to infant children or teenage victims suffered, and are suffering and will continue to suffer.
21. The concern that is usually raised by the Court is that whatever terms of years are imposed by the Courts upon any offenders cannot be measured against the pain, suffering and trauma suffered by the victims. The prisoner must realize that you have caused psychological and physical damage to the victim. She has suffered and will continue to suffer and endure until she is old. Sexual abuse whether by rape or other sexual offences under the Criminal Code is so prevalent indeed.
22. Due to the rise in sexual crimes, like the two crimes of rape committed against the victim of these cases is so prevalent that, immediate punitive sentences must to be considered. Judges of this Court have been imposing heavy penalties is rape cases, however such penalties do not seem to deter anyone: John Aubuku-v-The State [1987] PNGLR 267 and see also Lawrence Hindemba-v-The State (1998) SC 593.
23. In aggravated cases such as The State v Ludwick Jokar (N0.2) (24.4.08) N3362 an aggravated rape in Wewak where the accused was charged with two counts of aggravated rape. The cases went through a trial and he was found guilty. He was imprisoned to 12 years cumulative sentences. In The State v Ilam Peter (2006) N3090, the prisoner was sentenced to 14 years for a charge of rape and other sexual crimes.
24. 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 for a rape simplicita case.
25. The victim of the instant case was at the age of 17 or 18 years. Her fundamental rights to freedom of right to life, freedom from inhuman treatment, and the right to the protection of law are constitutionally guaranteed. (See Sections 32, 35, 36 and 37&42 of the Constitution). On the current case, the Court considers the principle in cases such as Maima-v-Sma [1972] PNGLR 49 and others which stand for the principle that the maximum penalty ought to be reserve for the worse case of a particular crime.
26. On the instant case, I am of the view that, the Court should not impose the maximum penalty of life imprisonment but instead, the message to be sounded to young men and even old people is that rape is so serious such that sentences imposed should fit the damaged caused to young victims.
27. Be they mental, psychological or physical damage and let the sentence of this Court send out a clear warning to similar offenders who harass their women folks and children of tender age and consider them or treat them as sexual slaves.
28. As much as possible, Courts must impose penalties given in any rape case, should be equal to psychological traumas caused to women and young girls in this nation. On this type of cases, it is useful to start with the maximum prescribed penalty in mind, and then the next thing is the court should consider the circumstances of the particular case in line with the current sentencing trends by other Judges of this Court for similar type offences.
29. I have considered the accused address on his last say. I consider counsels’ submission on sentence and the terms of the means-assessment and pre-sentence reports. There is no valuable input in both reports. This is due to the seriousness in the breach of trust created by the prisoner. The family of the offender and that of the mother of the victim including Elmah are blood relatives of the prisoner.
30. The court considers the fact that the victim gave birth to a child the result of the two acts of rape upon Elmah. It is worth mentioning the above cases to demonstrate to the public that the offence of rape is serious so that all communities and the silent victims out there must know that their rights are protected by law. They have the right to know how serious the charge of rape is. If there are young victims out there behind the scene with similar experiences like the instant case, the Court invites you to come forward to the Sexual Offences Squad at Kokopo Police Station and reveal your misfortunes to the Police so appropriate action may be taken.
31. I am of the view that the totality principle may not be applicable on the instant cases as they were committed on separate dates as compared to a string of crimes committed in committing one crime: Public Prosecutor v Terrance Kaveku [1977] PNGLR.110, see alsoMase v The State [1991]PNGLR.88 or Acting PublicProsecutor v Konis Haha [1981] PNGLR 205.
32. I do remind myself that, the maximum penalty for the crime of rape by aggravation under s.347 (2) is life imprisonment. This is subject to the Court’s discretion under s.19 of the Criminal Code. I agree with the State’s counsel that, the rape cases were committed on two separate occasions one on the road and the other in the family house. So the two crimes were not committed in the course of committing one offence.
33. Because, the cases were committed by aggravations as the victim was young and is closely related to the prisoner, I come to the conclusion that, consecutive sentences should be imposed and orders for compensation should also be made. He is sentence in the following terms:
Count 1: the offender is sentence to 15 years imprisonment.
Count 2: The offender is sentenced 10 years.
The two sentences shall be served consecutively making a total of 25 years. The court suspends ten (10) years from this sentence on condition that after serving 15 years in prison, he shall keep the peace & be of GBB for 2 years. The custody period shall be deducted.
The Court further orders that, he shall pay K2, 000.00 compensation. K1, 000.00 of this amount shall be paid directly to the victim and the remaining sum shall be paid to the parents and relatives of the victim.
______________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.
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