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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[ IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1319 OF 2019
THE STATE
V
JUDAS KOMUS PITALOT
Kavieng: Yagi J
2021: 18th February & 02nd March
CRIMINAL LAW – Sentence – aggravated rape – Criminal Code Act, s. 347(1) and (2) - Guilty Plea – repeat offender – a young villager with little education – use of violence and threat – restraining victim in the bush for several hours – victim sustaining multiple injuries to the body – committing offence under the influence of alcohol – prior conviction for sexual penetration of underage girl – sentence of 17 years imprisonment imposed less the pre-sentence custody period
Cases Cited:
State v Pais Steven Sow (2004) N2588
State v Seyo Aroko (2005) N2822
State v Kenneth Penias (1994) 1229
State v Donald Angavia & Ors (2004) N2590
State v James Yali (2006) N2989
State v Sina (2004) N2541
State v Sow (2004) N2588
State v Tomitom (2008) N3301
State v Minja (2011) N4332
State v Kaboanga (2020) N8634
State v Frank (No. 2) (2012) N4700
State v Peter Kaudik [1987] PNGLR 201
State v Peter Freeman Ekalia (2011) N4603
Lawrence Hindemba v The State (1998) SC593
Goli Golu v The State [1979] PNGLR 653
The State v Peter Kaudik [1987] PNGLR 201
The State v Michael Amuna Koupa [1987] PNGLR 208
John Aubuku v The State [1987] PNGLR 267
The State v Thomas Waim [1995] PNGLR 185
State v Robin Andolu (2013) N5129
Counsel:
Ms M. Tamate, for the State
Mr A. Tunuma, for the Prisoner
SENTENCE
02nd March, 2021
1. YAGI J: The prisoner came before the Court on 12 February 2021 and pleaded guilty to one count of aggravated rape contrary to s. 347(1) and (2) of the Criminal Code Act. He was therefore convicted of sexual penetration of a woman named Paulyne Marabui (the victim) without her consent on 18 October 2018. The Court heard submissions on 18 February 2021 and reserved its decision on sentence to today.
Relevant Facts
2. The relevant facts are as follows. The victim is a married woman with a number of children. At the material time she was aged about 49 years. She and the prisoner are from Paruai village within Tikana Local Level Government area, Kavieng District, New Ireland Province. The prisoner and the victim are close relatives. The prisoner is a cousin brother by second degree to the victim.
3. The victim was asleep in her house when the prisoner entered the house and physically assaulted the victim. He kicked her on the side and punched her on the face. At that time, the prisoner was fully naked. This happened at about half past two in the afternoon on the day in question.
4. The prisoner then threatened the victim and forced her out of the house and dragged her into the nearby bushes where he restrained her and sexually penetrated her on 3 occasions without her consent by inserting his penis into her vagina. The victim was kept under restraint for several hours in the bush. During this period, the victim was also subjected to repeated violence in the form of assaults to the face, back, legs and the genital organ.
5. The victim was brought to Lemakot Health Centre on 19 October and subsequently referred to Kavieng Provincial Hospital. A medical report prepared by Dr Frank Apamumu of Kavieng Provincial Hospital dated 03 November 2018 described the injuries sustained by the victim in the following statements:
“On examination she (victim) was fully conscious with swollen face, not conversing well due to swollen lower lips and swollen right mandible (jaw). The left eye was swollen with bruises all around which she was unable to open at that time, the left eye was okay. The right jaw was swollen and very tender at the right mandibular joint thus she had trimus (unable to open mouth), the chin was also swollen with bruises and tender. There was a superficial laceration above the left eye about 2 cm in length and lots of bruises at the back, the back of her arms and the back and the sides of her thighs. The examination of the perineum revealed an ulcerative lesion (sore) at the 6 o’clock position at the vaginal orifice about 2cm by 3cm with yellowish slough, not bleeding then, most likely this may have been an infection that was there before the assault, there was whitish yellowish fluid (discharges) noted within the vagina with no obvious tears or lacerations to the vagina or the cervix, the anus was intact.”
Allocutus
6. During allocutus the prisoner expressed remorse and apologised for what he did. He then asked the Court for mercy and for a sentence to probation or on good behaviour bond.
Submission by Defence
7. The defence counsel, after referring to the prisoner’s personal background and antecedents, the mitigating and aggravating features in the case, submitted for a sentence of 6 – 12 years imprisonment. The following cases were also cited for the assistance of the Court – State v Pais Steven Sow (2004) N2588, State v Seyo Aroko (2005) N2822 and State v Kenneth Penias (1994) N1229.
Submission by Prosecution
8. Counsel for the State submits that the Court adopts the sentencing approach in State v Donald Angavia & Ors (2004) N2590 and State v James Yali (2006) N2989 where it was decided that in instances where no aggravating circumstances is present nor pleaded on the indictment the Court should impose a term of imprisonment under 15 years. Counsel also cited the following cases for the assistance of the Court – State v Flotyme Sina (No. 2) (2004) N2541, State v Paias Steven Sow (2004) N2588, State v Joe Kanau Tomitom (2008) N3301, State v Kenneth Minja (2011) N4332 and State v Kaboanga (2020) N8634). Counsel in submissions also pointed to the case of State v Bibi Frank (No. 2) (2012) N4700 where the Court attempted to provide some guidelines in sentencing in rape cases. To this end the State submits for a sentence within the range 15 – 20 years imprisonment.
Prescribed Penalty
9. The prisoner is convicted under subsections (1) and (2) of s. 347 of the Criminal Code Act and these provisions are stated in these terms:
“(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.”
10. As I alluded to the penalty for aggravated rape is provided under s. 347C and is in these terms:
“347C. Aggravated rape.
Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent —
(a) whilst armed with a dangerous weapon or offensive weapon or instrument; or
(b) in company with one or more other persons; or
(c) causes grievous bodily harm to a person, before, after, or in the course of the offence; or
(d) of the victim a child under the age of 10 years,
is guilty of the crime of aggravated rape and shall be sentenced to death.”
Considerations and Sentence
11. There are several factors operating against the prisoner in aggravation and these are as follows –
12. However, there are also mitigating factors that must be taken into account in favour of the prisoner and these are -
13. Rape is a crime of violence against women and girls in the community. It is an invasion of a female’s sexual dignity and privacy. In this case the victim is a married woman. Her body and privacy belongs to her and no one else except her husband. The prisoner’s actions has therefore indirectly interfered with her husband’s matrimonial or marital rights.
14. Rape being a crime of violence is also considered a very serious offence under the law because of the penalty. A recent amendment to the law passed by the National Parliament in September 2013 (Criminal Code (Amendment) Act 2013 (No. 6 of 2013, s. 2 – s. 347C) gives the Court the power to impose death penalty where the crime is committed in aggravated circumstances which include instances where “grievous bodily harm” is caused to the victim. In this case, there is no doubt that the victim sustained serious injuries, however, it is arguable whether the injuries tantamount to “grievous bodily harm” within the definition provided under s. 1 of the Criminal Code Act.
15. The Courts have stated many times over the principle that crimes of violence attract immediate punitive and deterrent sentences. see State v Peter Kaudik [1987] PNGLR 201, State v Peter Freeman Ekalia (2011) N4603 and Lawrence Hindemba v The State (1998) SC593
16. I also agree with the submission by the State that sexual offences including rape is a prevalent crime in the community. The community regards these offences as repulsive and abhorrent. The Courts have a duty to protect the weak and vulnerable members of the community, in particular the female members of the society.
17. The law on sentencing is settled. The maximum penalty is reserved for only the worst cases: Goli Golu v The State [1979] PNGLR 653. From the reported cases it appears the category of worst cases include such cases as The State v Peter Kaudik [1987] PNGLR 201, The State v Michael Amuna Koupa [1987] PNGLR 208, John Aubuku v The State [1987] PNGLR 267 and The State v Thomas Waim [1995] PNGLR 185. These cases were decided long before the 2002 amendment to the Criminal Code Act was made involving sexual offences. In State v Robin Andolu (2013) N5129, Kirriwom J stated that these class of cases would on current penalty regime attract a sentence range of nothing less than 25 years imprisonment. With respect I agree with his Honour’s view.
18. In State v Pais Steven Sow (2004) N2588 the offender dragged a married woman into the bush and sexually penetrated her in full view of her 2 young children. No weapon was used, and the victim sustained no physical injury. He pleaded guilty and was a first-time offender. He was not a stranger to the victim. Compensation of K150.00 was paid to the victim. The National Court imposed a sentence of 15 years imprisonment.
19. In The State v. Flotyme Sina (No 2) [2004] N2541, a young married woman was walking along a road to visit relatives when the offender met her along the way. He threatened her with a bush knife and used force in sexually penetrating the victim with his penis. He pleaded guilty and was a first-time offender. An amount of K300.00 was paid as compensation. A sentence of 17 years imprisonment was imposed.
20. In State v Kenneth Minja No. 2 (2011) N4332, a man whilst under the influence of alcohol and armed with a bayonet knife grabbed a young girl under 16 years from her house as she was having dinner. He then abducted the girl and took her to his house on an island and kept her there under threat and violence. He stabbed the victim with a knife on the back. During that time, he sexually penetrated her multiple times. The victim also sustained injury to her sexual organ. The man was convicted after trial. He was a first-time offender. The National Court sentenced the man to 16 years imprisonment in hard labour.
21. The case of State v James Yali (2006) N2989 is often used as a benchmark to represent a category of rape simpliciter of serious nature where a sentence of 12 years was imposed on a man of high standing and reputation in society and where circumstances of aggravation were not pleaded in the indictment.
22. In the present case the prisoner has been convicted with 2 circumstances of aggravation pleaded on the indictment. The first circumstance is causing grievous bodily harm and secondly, abusing a position of trust. This places the starting point well above 15 years being the maximum prescribed penalty for rape simpliciter under s. 347(1) of the Criminal Code Act.
23. I have considered all the cases cited by the defence and prosecution counsels and find that the facts of this case is very similar to the facts in Kenneth Minja No. 2, although in this case no weapon was used, and it is a plea. The victim impact statement tendered by the State is quite disturbing to say the least.
24. The prisoner is a repeat offender. He was convicted and sentenced for another sexual offence. In my view he is a sexual predator and a danger to the female members of the community. It seems he has not learnt a lesson and changed his behaviour and attitude towards the female population in his community. It seems the sentence imposed, albeit a suspended sentence, has not deterred the prisoner. I consider that a stiff penalty is warranted, not only in the interest of personal and general deterrence, but more particularly the protection of the female population in the community.
25. I note the prisoner is aged 28 years and a single father of 2 children whose ages are unknown. He is educated to grade 6 level and has been a villager throughout most of his life. He is a member of the United Church.
26. I find no special or extenuating circumstances present in the case.
27. In all the circumstances, I impose a sentence of 17 years imprisonment in hard labour to be served at Kavieng Correctional Institution. From the head sentence I deduct 1 year 3 months 1 week and 5 days as the pre-sentence custody period. A warrant of commitment will be issued forthwith.
Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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