Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ben [2019] PGNC 212; N7942 (20 June 2019)

N7942
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1026 of 2017

THE STATE

V

PATIMOS AHU’U BEN

Lihir: Susame, AJ
2019: 11, 17, 20 June

CRIMINAL LAW – Sentence - Offence Of Rape –S347 (1) Criminal Code –Rape With No Circumstances Of Aggravation – 09 Years Sentence.

Cases Cited:

John Aubuku v The State [1987] PNGLR 267

Counsel:

Mr. L. Rangan, for the State
Mr. A. Tunuma, for the Accused

DECISION

20^th June, 2019

1. SUSAME AJ: Court has found you guilty after trial on 17 June 2019. You now appear to receive your sentence.

2. You have been convicted of sexual penetration of a woman without her consent with no circumstances of aggravation. So you are liable for imprisonment for a maximum period of 15 years. Had you been convicted for aggravated rape you would have attracted the maximum death penalty which parliament has recently past (Criminal Code (Amendment) Act (No. 6) 2013).
3. The task I am faced with is to decide what sentence I should impose on you that is fitting the offence you have committed. That requires proper exercise of judicial discretion entrusted upon me by the Constitution for and on behalf of the people of Papua New Guinea.

Submissions

4. Both counsel have addressed the court on sentence. In their brief submissions the lawyer representing you and the State lawyer have asked me to consider certain considerations. Mr. Rangan made reference to a Supreme Court case decided in 1987 which set some good sentencing guidelines in rape cases. (John Aubuku v The State [1987] PNGLR 267). Mr. Rangan considered aggravating factors outweighed those that would mitigate your sentence. He asked me to impose a strong punitive sentence on you. Mr. Tunuma pleaded on your behalf a sentence which is not harsh and crushing on you. He urged me to consider a sentence of 3 to 5 years imprisonment.

Allocutus

5. In your address with regard to your penalty you said sorry to the court and the victim and her family of the wrong you committed. You said you will not do this again in future. You asked the court to show mercy and place you on good behaviour bond or pay a fine.

Antecedents

6. Your brief personal particulars are that you are 25 years old. You are a subsistence farmer. You are married and have 2 children. You have no prior conviction and a first time offender. That is a possible mitigating factor.

Court’s Opinion

7. Needless to say your first time status is diminished by the gravity of the offence you have committed. Likelihood of you getting a non-custodial sentence or payment of a fine is very slim. This is because of the stern approach courts have taken and are taking in our present time in sentencing rape offenders. You have expressed remorse. But I consider your remorse is not complete without you doing something tangible and reconciling with the family you have wronged well before the case was processed and you are now about to be sentenced.
8. I decided against imposing the maximum 15 years imprisonment sentence on you. The reason is because of the accepted sentencing practice that maximum penalty is reserved for the worst type of case consisting of very graves features and circumstances. Your case does not fall in that category. In the exercise of my discretion I will consider a sentence below the maximum, guided by tariffs in decided cases.

9. I note that courts have imposed heavier sentences over 15 year in cases involving raping of young girls and women or rape with circumstances of aggravation like use of dangerous weapons, victims receiving serious physical injuries, victims contracting sexually transmitted disease, victim becoming pregnant. That said your case does not have those have those features of aggravation.

10. As a guide I rely on guidelines set by the Supreme Court in the case of Aubuku in arriving at a sentence fitting to the merits of your case.

11. The Supreme Court had pronounced that “the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances”

12. Courts have indeed been sentencing rape offenders with immediate punitive custodial sentences. Except in very exceptional circumstances. I will not depart from that approach.

13. Your case does not consist of exceptional circumstances. Certain aggravating factors are present which are:

• I consider that this should have been a plea case. Instead you unnecessarily forced the case into trial incurring extra expense for the State to call witnesses. You made the victim appear in court to be subject to public humiliation and much questioning of the ordeal.
• You used an offensive or dangerous weapon and threatened the victim and assaulted her. The victim was traumatized. She suffered some emotional and pain. Though she suffered no serious physical injuries.
• You are a married man so is the victim. She was a mother of 07 children. You took no regard of that and were driven by your uncontrolled sexual desire.
• You raped the wife of your family relative. She was supposed to be your sister in law. Hence there was breach of trust. You gave no regard for that.
• Opportunity became available to you when the husband had fled to and neigbouring village for accusations of sorcery and when the woman was alone with her children. It seems other factors as may have contributed to you raping her as can be inferred from your explanation to question15 of the record of interview.
• Though you have no prior convictions that does not mean you behave well in the community. You have a tendency or history of sexually abusing women in the community. This is evidenced by statement of Balaye Joseph a Village Court Magistrate dated 19 January 2017 which was tendered into evidence by consent.
  

14. Clearly there are more aggravation factors than those that will mitigate your sentence.

15. The Supreme Court in Aubuku recommended 05 years as the base sentence in an ordinary rape case.

16. However, courts have expressed that the suggested tariffs in cases decided as far back as 1987 like the Aubuku case are inadequate and inappropriate in the present day given the prevalence of the offence in our communities. I endorse and share those sentiments. Five years head sentence may be low. I think it should increase slightly to 07 years with the option for the court to go up or down considering the factors in aggravation and mitigation.

17. Rape by its nature is a serious crime that violates rights, privacy and dignity of a woman or a girl. The society is calling for tougher deterrent sentence due to increasing occurrences of rape. Courts cannot be insensitive and give a blind eye to those sentiments. They have a duty to protect people’s lives especially women and girls. Perpetrators will expect nothing less than being incarcerated for long period of time in jail. The sentence I will impose is aimed at specific and general deterrence.

18. It follows from my discussions 07 years should be the head sentence for an ordinary rape case. Factors in aggravation far outweigh the mitigating factors in your case. As such you will expect your sentence to go up from the head sentence of 07 years.

19. Accordingly you are sentenced to 09 years imprisonment with hard labour to be served at Kavieng Jail.

20. I order that your bail shall be refunded forthwith.
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner