N6895

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1004 OF 2013

THE STATE

V
ROY DUJAMBI
(No 2)
Kimbe:  Miviri AJ
2017:  28th June

CRIMINAL LAW- PRACTISE & PROCEDURE - Trial-Rape S347 & 347A no consent -victim mentally disabled-tried to give evidence but mentally incapable- eye witness accused naked compromising position on top of victim also naked-medical evidence sperm gonorrhea –penetration established- whether with consent- no other reasonable hypothesis other than no consent-guilty of rape-strong deterrent sentence.
Facts 
Defendant was seen naked on top of victim, a mentally disabled person. She was naked and he had his trousers half way to his knees. 
Held
Defendant committed rape upon SD a mentally retarded female.
Serious breach of trust
Crime committed in the house 
12 years IHL.
Cases Cited
The State v Neheya [1988-89] PNGLR 175 (24 May 1989). 
The State v Aubuku [1987] PGSC 3; [1987] PNGLR 267 (29 July 1987)
State v Yali [2006] PGNC 26; N2989 (19 January 2006)
The State v Meaoa [1996] PNGLR 280 (11 August 1995)
The State v Hindemba [1998] PGSC 48; SC593 (27 October 1998)
State v Manuel Weiki CR 872 of 2014
State v Paulus [2002] PGNC 97; N2241 (21 May 2002)

Counsel:

D.Kuvi, for the State
D Kari, for the Defendant
					SENTENCE
15th September, 2017 

1.      MIVIRI AJ: This is the sentence of a man who raped SD a mentally retarded female after trial. 
Short facts
2.     Roy Dujambi had his trousers to his knees and was having sexual intercourse of SD who was mentally retarded female on the 10th June 2013. He was seen in the act, “em wok long kuapim Scholar” he was having sexual intercourse with Scholar, by a witness who came to the house on an errand. She reported the matter.
Law
3.      The charge was contrary to Section 347 (1) of the Criminal Code that:
Section 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.

4.      The State pleaded Section 347A in that the victim was incapable of consenting because of her mental incapacity to understand and to apprehend what was sexual intercourse and of consenting freely to it. 
Issue
5.     What is an appropriate sentence?
6.     The indictment does not plead circumstances of aggravation meaning that the maximum sentence in your case would be 15 years imprisonment. It is a serious offence because she is a disabled person mentally and in no position to give evidence. I observed her very closely when she was produced by the State in its endeavour to have her give evidence in the matter.  Despite skilful questioning by the learned state Prosecutor she could not give comprehensible evidence that would have given the impression to the court that she knew or appreciated what she was talking about let alone where she was and of the requirement to tell the truth the consequences of not adhering. She was silent most of the time and simple questioning did not draw intelligent answers back. To persist and preserve would not have been fruitful to the State case. 
7.      As a tribunal of fact I observed her in the witness box and adjudged that she was incapable of communicating as a normal sane person of sound intelligent and common sense and understanding would. She was mentally weak and lacking to fully communicate and maintain mutual conversation or give answers making sense or meaning to the conversation. My views were supported by exhibit S1 medical evidence by Health Extension officer Sandra Kura dated the 25th June 2013 who wrote, “Pertaining to the above is a victim being sexually penetrated by known guys at section 11. This particular victim was a bit mentally psychosis and also mutes”. She was not composed intellectually and had mental infirmity lunacy or phobia or obsession. 
8.      Her evidence established she did not know and was incapable of understanding the essential nature of the act or of communicating her unwillingness to participate in the act due to mental or physical disability. But what came out of her silence and incapability was the fact that when she was medically examined she was in obvious distress and her vagina hymen looks bruised and tears on the labia. Her cervix was closed. There were discharges of bad odour. Higher vaginal swab was taken. Therefore she was sexually penetrated or assaulted and was treated and advised for VCT screening to exclude HIV and Spermatozoa were seen within. 
9.     Your actions show clearly what was on your mind lust. You treated her like a sex object for your pleasure as you saw fit. You did not see what she was as a person. You paid no respect she was an immediate relative. What would have become of the victim if you were not stopped by the report made by Sylvia Sakuk. Case law before this court has demonstrated very aggravated indignities sexual perversions leading to pregnancies The State v Neheya, [1988-89] PNGLR 175.

10.      You do not have any excuse at all for the offence that you committed. You are not a 15, 16, 17 or 18 year old experimenting in life rather a grown man who ought to know what is right and wrong. It should be you who should be protecting SD because you are an immediate relative on the side of the mother of SD. You breached the trust that was placed as an immediate relative upon by the parents of SD. You should have been the first person to protect her not violate her. It is not a light matter because the crime of Rape is a very serious invasion of privacy. It involves intimacy only right in consenting adults or persons such as in matrimony. To be committed as depicted here degrades the female to nothing less than an object for sexual gratification by her uncle you. She is vulnerable and is a disabled person for all intent and purposes. When perpetrated as here where the parents leave her unattended in their own home because an uncle you are there to protect and you take advantage and commit this offence you must be stopped by a stern and deterrent sentence. You must be incarcerated with a custodial term to educate you to deter you and any others of similar or like mind. Those who are disable and infirm are entitled to the full protection of the law.

Mitigation

11.      The prisoner is 25 years old originally from Numbuge village, Wosera, East Sepik Province. He is a first time offender who was working with Dekenai as a handyman. He is unmarried, was living at the subject house because he was a relative to the family of the victim SD. He abused the trust and confidence placed in him. Though not pleaded in the charge it is a serious factor against.
12.      In Aubuku v The State [1987] PNGLR 267 the Supreme Court endeavored to set out guidelines applicable to assist in the determination, appropriation and proportioning of appropriate sentence in given cases of rape. It is a 30 year old case but the guidelines it sets out are good and practicable. That is what they are guides to assist in deliberation of sentence. There is still a very wide discretion in the sentencing authority and each case is determined on its own facts and circumstances presented. The following were set out by Aubuku (supra):
“(1)      the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances;
(2)      for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point;
(3)      for rape committed by two or more persons acting together, or by a person who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years;
(4)      for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger, a sentence of 15 years or more may be appropriate;
(5)      for rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will not be inappropriate;
(6)      where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point;
(a)      violence over and above the force necessary to commit rape;
(b)      use of a weapon to frighten or wound the victim;
(c)      the rape is repeated;
(d)      the rape has been carefully planned;
(e)      the accused has previous convictions for rape or other serious offences of a sexual or violent kind;
(f)      the victim is subjected to further sexual indignities or perversions;
(g)      the victim is either very old or very young;
(h)      the effect upon the victim, whether physical or mental.
(7)      matters which may be relevant to mitigation include:
(a)      a plea of guilty;
(b)      the age of the defendant; and
(c)      the degree of involvement of the defendant in the planning and carrying into effect of the crime;
but do not include:
(d)      the fact that the victim may be considered to have exposed herself to danger by acting imprudently;   
and
(e)      the previous sexual experience of the victim.”

13.      An immediate custodial term is applicable here. Had Sylvia Sakuk not come back then the matter would have grown a life and existence of its own devastating each side of the family. In State v Yali [2006] N2989, the prisoner had committed rape upon the victim 17 years old small sister of his de facto wife. The prisoner was a Member of Parliament. A trial was run.  No aggravation was charged and the court imposed 10 years. In this regard this court has on the occasions in cases of this nature that have come before it imposed heavy sentences to reflect and the Supreme court has on the appeals that have been lodged against confirmed and upheld the sentences imposed. In Meaoa v The State [1996] PNGLR 280, the Supreme court stressed the vulnerability of the 12 year old girl from the mountain who did not know how to swim and whose vulnerability was taken advantage of by the appellant there.

14.      In Meaoa (supra) the Supreme Court confirmed the 14 years IHL that was imposed.  Not only has the Supreme Court confirmed the sentences imposed but has also increased it where this court has imposed sentences not proportionate to the facts and circumstances as in Hindemba v The State [1998] SC593 the 10 years on a guilty plea to rape of a 10 year old school girl on her way home after school who was grabbed by the appellant, carried into bushes nearby threatened with a pocket knife sexually penetrated causing injuries to her vagina. He was a first offender. He appealed against the 10 years imposed by the National Court to the Supreme Court arguing that he had pleaded guilty and was a first time offender and the sentence was high in view. The Supreme Court viewed the contrary and used its powers to increase the sentence to 15 years IHL. 

15.      No weapon is used here but a mentally disabled girl is subjected to sexual penetration with injuries to her vagina and sexually transmitted disease. And you acted as was the case in Hindemba (supra) there was nothing that mattered except your self-gratification. A trial was run which is your right but in sentencing it will be taken against you. It is a very prevalent offence.

16.      Earlier this week in State v Manuel Weiki (2017) N6871,  I sentenced the Prisoner to 14 years IHL after trial. He was armed with a bush knife in the garden, threatened his sister in law, penetrated her vagina and had sexual intercourse with her. Here prisoner has pleaded not guilty like that case and a trial has been run. If there were no eye witnesses, the prisoner would have gotten away with what he did to the victim. I do not find any material that has been placed before me apparent and identifiable to show that you ought to be treated differently in your sentence from that case. You took advantage of a family member who was vulnerable because of her mental and physical deficiency to perpetrate the offence upon her. She should not be harmed in her own home in this way.

17.     In the State v Paulus [2002] N2241, the prisoner pretended to help the victim to help her find her husband. They went from one location to another. At a location where she went to relieve her bladder, he went in after her and tried to rape her. She put up a fight making it impossible for him to penetrate her. He took out a knife and stabbed her on her back. He pleaded guilty and the court sentenced him to 9 years IHL for attempted rape. The range given here would be between a minimum of 9 years and 12 years IHL given that you did not use any weapon as in Manuel Weiki (supra). But that fact is neutralized with the fact that she is not a normal sane person but a mentally disabled person who you took advantage of her disability to commit the offence.

18.      Accordingly I adjudge and order as follows:  
(a) For the rape committed upon SD a mentally disabled person you are sentenced to 12 years IHL.
(b)  I deduct the time you spent on remand awaiting from the head sentence.

 Orders Accordingly.
__________________________________________________________________
Public Prosecutor	:	 Lawyer for the State
Public Solicitor  : 		Lawyer for the Defendant