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State v Ava [2025] PGNC 228; N11386 (22 July 2025)

N11386

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO 1623 and 1629 OF 2024

BETWEEN:

THE STATE

AND:

LORAI AVA

Lae: Wawun-Kuvi, J
2025: 8, 18 & 22 July

CRIMINAL LAW-SENTENCE-Guilty Plea-2 counts of rape, 347(1)(2) Criminal Code- Offender under pretext of helping in exams sexually penetrated victim twice

Cases cited
Koribiseni v State [2022] PGSC 90; SC2296
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
State v Winston [2003] PNGLR 5
Hindemba v The State [1998] PGSC 48; SC593
Public Prosecutor v Hale [1998] SC564.
Public Prosecutor v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
Goli Golu v The State [1979] PNGLR 653
State v Tongit [2018] PGNC 365; N7476
State v Tumai [2012] PGNC 320; N5166
State v Deila [2009] PGNC 188; N3804
State v Torona [2008] PGNC 298; N3867
State v Jokar (No 2) [2008] PGNC 62; N3362
State v Sime [2006] PGNC 184; N4484
State v Kapilo [2002] PGNC 115; N2221

Legislation
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
E Kave, for the State
J O Steven, for the Offender

22 July 2025

DECISION SENTENCE

1. WAWUN-KUVI, J: The victim was a 17-year-old girl in need of assistance for her upcoming school exams. The offender and his wife lured her to their home under the pretext of offering her help with her exams.
   
2. On two separate occasions, when the victim entered their home, the offender gave her a pill and told her that it would clear her mind. After which his wife would rub oil on her body, including her vagina. The accused would then enter and sexually penetrate her by inserting his penis into her vagina. His wife would be present on those occasions. The victim did not consent as she was coerced into believing that what the accused and his wife were doing would assist her in her exams.
   
3. Based on the foregoing facts the offender pleaded guilty to two counts of rape under s 347(1)(2) of the Criminal Code. I must now decide the appropriate penalty.
   

Penalty

4. The maximum penalty is life imprisonment.
   
5. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Sentencing range

6. The State submits a range of 10 to 15 years' imprisonment. It is submitted that he receives a sentence of 10 years for each count, to be served cumulatively. Instead of imposing a 20-year sentence, which would be excessively harsh, the Court should, in its discretion, impose a 15-year sentence of imprisonment, on account of the totality principle.
   
7. On the other hand, the offender's counsel contends that a sentence of 8 years for each count to be served cumulatively is appropriate. The resulting sentence would be 16 years' imprisonment.
   

Comparable cases

8. Counsels have submitted the following cases:
   
9. Solomon v State [2007] PGSC 9; SC871: The appellant was convicted following a trial and sentenced to 45 years imprisonment for three counts of rape on a 16-year-old victim. The appellant was like a brother to the victim and during a period of 4 years raped her using threats of violence. On review of the sentence, it was reduced to 20 years imprisonment for each count. Applying the totality principle each count was reduced by 12 years resulting a sentence of 8 years for each count. The sentences were made cumulative. The appellant was sentenced to 24 years imprisonment.
   
10. Hindemba v The State [1998] PGSC 48; SC593: The appellant pleaded guilty to the rape of a 10-year-old girl who was returning home from school. He abducted the victim and used a knife to threaten her. She suffered injuries from the forceful penetration. On application by the Public Prosecutor the sentence was increased to 15 years imprisonment.
    
11. I take note that this case was decided prior to the amendments to the Criminal Code which now contains the separate offence of sexual penetration of a child under section 229A (1)(2).
    
12. State v Tongit [2018] PGNC 365; N7476, Miviri AJ (as he then was): The offender plead guilty to the rape of a young woman. He used with a knife in his possession threatened her into a cocoa coconut block, striped her naked and inserted his penis into her vagina had sexual intercourse with her against her will. He ran away after. She reported thereafter. He was sentenced to 10 years imprisonment.
    
13. State v Tumai [2012] PGNC 320; N5166, Toliken AJ (as he then was): The offender pleaded guilty. He followed the victim and three other women to their gardens. When the victim stopped to rest, the offender approached her from behind. She got up and ran but couldn't run fast enough as she was wearing a long skirt. He pulled her shoulder, and she fell to the ground. While she was on the ground, he forcefully removed her skirt and pants. He then removed his trousers and raped her by inserting his penis into her vagina. He was sentenced to 9 years imprisonment.
    
14. State v Torona [2008] PGNC 298; N3867, Kandakasi J (as he was then): The offender was convicted following a trial. He had raped his 16-year-old daughter by threatening her with a knife. She fell pregnant because of the rape. He was sentenced to 18 years imprisonment.
    
15. State v Jokar (No 2) [2008] PGNC 62; N3362, Davani, J: The offender was convicted following a trial. The victim came from a broken home. The offender was the village councilor. Under threats the offender sexually penetrated her by inserting his penis into her vagina on two separate occasions. The offender was sentenced to 6 years imprisonment for each count. The sentence was made cumulative. The offender was sentenced to 12 years imprisonment.
    
16. State v Sime [2006] PGNC 184; N4484, Cannings J: The offender pleaded guilty to the aggravated rape of his niece, a grade 6 school student, aged 16. He tricked her by saying he would take her to a village where his relatives live. He led her along a bush track, asked her for sex and she refused. He threatened her with a small axe. The victim was afraid. It was getting dark, and no one was around. He sexually penetrated her without her consent. He was sentenced to 10 years imprisonment.
    
17. I have found more comparable cases:
    
18. State v Deila [2009] PGNC 188; N3804, Davani J: The offender was the 18-year-old uncle. He convinced her into sexual intercourse by telling her that he had magical powers that would make her intelligent if she allowed him to remove hair from her gentiles that evil spirits had placed there. He was sentenced to 15 years imprisonment.
    
19. State v Kapilo [2002] PGNC 115; N2221, Jalina J: The offender pleaded guilty to rape under circumstances where he forced the 20-year-old, grade 12 student, into sexual intercourse by convincing her that he possessed supernatural powers from evil spirits. The spirts would cause her harm but could also enable her to receive money from the bank. He was sentenced to 10 years imprisonment.
    
20. The cases submitted by counsels are distinct in that there involve rape in circumstances where the victims were threatened with violence and physical force was applied. The present case like State v Deila and State v Kapilo the victims were coerced into believing that the act of sexual of penetration was required to assist or cure them. The offenders possessed some control over the victims who were vulnerable. I have taken recourse to the Supreme Court authorities discussed in State v Deila and both the decision in Deila and Kapilo and find that an appropriate range is 10 to 15 years imprisonment.
    

Antecedent

21. The offender is a male adult. He is from Suwaira, Ombura Wonenara, Eastern Highlands Province. He is married and has three children aged 14, 7 and 9 months. His wife has pleaded guilty to similar charges and is waiting for her sentence before Justice Numapo.
    
22. His parents are deceased, and he is the last of 4 children from his parents’ marriage. His siblings live in the Eastern Highlands.
    
23. He is a teacher and was teaching at FODE prior to his arrest. He also does private coaching after classes for students who need additional assistance.
    
24. He completed years 7 to 10 at Tairora High School and 11 to 12 at Morobe Community College. In 2010 he graduated with a Bachelor of Arts in teaching at the University of Goroka.
    

Allocutus

25. The offender stated:

“I am a first-time offender in the court and I ask court to have mercy on me. I ask the court if I am convicted on sentence I ask for transfer to Kainantu, Bundaira. And I ask for Probation.”

26. There is nothing in the offender’s statement that indicates remorse for his actions. Given the opportunity he made no attempts to apologize to the victim.
    

Culpability

27. The offender is a teacher and educated at university level specifically teaching. He was involved with his wife. The circumstances of the offence demonstrate thought and planning. It involved the giving of a pill and rubbing of oil on the body of the victim to convince her of the ritual. The victim was in a vulnerable position as she was led to believe that those acts including sexual penetration would help her succeed in her exams. The offender and his wife took advantage of her vulnerabilities. It was not one off. These factors indicate a high degree of culpability.
    

Harm

28. The State has assisted with a victim impact statement and the Probation Officer has also obtained the views of the victim and her sister. The offence has left deep emotional and psychological impacts on the victim. She could not complete her education because of falling pregnant. During her pregnancy she did not want to carry the child and did not want to deliver the baby.
    

Aggravating Factors

29. I have considered the submissions by counsel and find the following to be aggravating:
    
    1. The victim was a young girl aged 17 still in Grade 8.
    2. She fell pregnant because of the rape.
    3. She was not able to continue her education.
    4. The offender did not stop on the first occasion but persisted.
    5. The prevalence
       

Mitigating Factors

30. In mitigation:
    1. The offender has no prior convictions.
    2. He pleaded guilty therefore saving the victims from the trauma of giving evidence.
    3. He cooperated with the police by making partial admissions.
       

Consideration

31. Children and young people are vulnerable members of society. They should not be subjected to the sexual desires of preying adults like the offender. While this case involve minimal force sexual penetration was obtained by despicable trickery. A young naive girl desperate to perform well in her exams was preyed upon by the offender and his wife for their own deviant sexual desires. A sentence that serves as both specific and general deterrent must be imposed.
    
32. Considering the factual circumstances of this case, the comparable cases, the antecedent of the offender, his culpability, the harm caused to the victim, the mitigating and aggravating factors, the offender is sentenced to 13 years imprisonment for both counts.
    
33. The next question is whether the sentence should be made cumulative or concurrent. In Koribiseni v State [2022] PGSC 90; SC2296, the Court referred to Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 which state that:
    

“1. where two or more offences are committed in the course of a single transaction the sentences should be concurrent;

2. where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative;
3. after deciding whether sentences should be concurrent or cumulative, the court must consider whether the total sentence is just and appropriate, and if it is not, the court must vary one or more sentences to get a just total (the totality principle).”
   
34. The circumstances in Koribiseni while involving two victims is similar in that the offences occurred within short intervals and were part of one transaction. Here there is only one victim. The sentences as such as are made concurrent. The offender shall serve 13 years imprisonment.
    
35. The offender has been in custody since 28 May 2024. He has been in custody for 1 year, 2 months. Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct the period spent in custody. The offender shall serve 11 years, 10 months.
    
36. The next question is whether any part of the sentence should be suspended. I have considered the authorities in Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730, State v Winston [2003] PNGLR 5, Public Prosecutor v Hale [1998] SC 564, The State v Kagai [1987] PNGLR 320, Public Prosecutor v Tardrew [1986] PNGLR 91 and in applying them to the present case, find there is nothing before the me that supports suspension.
    
37. There are no views from the community and the probation officer does not recommend probation. There is nothing in the material before me that would suggest that the offender would suffer excessive hardships due to health issues. He is not an elderly or old person.
    
38. The offence is prevalent and serious and calls for a custodial sentence.
    
39. Finally, the offender has asked to serve his sentence in Bundaira in Kainantu Correctional Institution. I accept that he is not from Morobe Province and will be separated from his family and relatives. He shall be transferred to Bundaira Correctional Institution to serve his sentence.
    

Orders

The Orders of the Court are as follows:

1. For count 1 on a charge of rape under s 347(1) ((2) of the Criminal Code the offender is sentenced to 13 years imprisonment.
2. For count 2 on a charge of rape under s 347(1) ((2) of the Criminal Code the offender is sentenced to 13 years imprisonment.
3. The sentences for counts 1 and 2 are made concurrent and the offender shall serve a sentence of 13 years imprisonment in light labor at Bundaira Correctional Institution in Kainantu, Eastern Highlands Province.
4. Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986 the pre-sentence custody period 1year, 2 months is deducted, and the offender shall serve the balance of 11 years, 10 months at Bundaira Correctional Institution in light labour.
5. The CR files are closed.
   

Lawyer the State, The Public Prosecutor
Lawyer for the Offender, The Public Solicitor