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Public Prosecutor v Etape; Public Prosecutor v Tapo; Public Prosecutor v Mombi [1977] PGLawRp 557; [1977] PNGLR 416 (27 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 416 - Public Prosecutor v Arape Etape; Public Prosecutor v Poso Tapo; Public Prosecutor v Petrus Mombi�

[1977] PNGLR 416

SC125

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

ARAPE ETAPE

AND

THE PUBLIC PROSECUTOR

V

POSO TAPO

AND

THE PUBLIC PROSECUTOR

V

PETRUS MOMBI

Waigani

Prentice DCJ Williams Saldanha JJ

26-27 October 1977

CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - Traditional ways of community, relevance - Prevalence of offence - Rape - Sentences of three years�, three and a half years� and four years� imprisonment substituted for sentences of one year, two years� and two years� respectively.

On appeal against inadequacy of sentences imposed on three New Ireland villagers, on separate convictions for rape and where the trial judge indicated that the �lenient� sentences of one year, and two years� imprisonment reflected local attitudes;

Held

N1>(1)����� While the attitude of local inhabitants is a factor to be taken into consideration in formulating sentencing policy it should not be given undue importance;

The Acting Public Prosecutor v. Tumu Waria of Yogos [1977] P.N.G.L.R. 170 followed.

N1>(2)����� The crime of rape being a crime of violence and the offence being prevalent in the New Ireland district were good reasons for imposing deterrent sentences.

N1>(3)����� In the circumstances sentences of three years�, three and a half years� and four years� imprisonment should be substituted for sentences of one year, two years� and two years� respectively.

Appeals

These were three appeals pursuant to s. 23 of the Supreme Court Act, 1975, against sentence on the ground of inadequacy.

Counsel

B. T. Sharp, for the appellant.

C. J. Russell, for the respondents.

Cur. adv. vult.

27 October 1977

PRENTICE DCJ WILLIAMS SALDANHA JJ: These are appeals by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975, on the ground that the sentences are inadequate and insufficient and ought to be increased. As all three cases were heard by the same judge at the same sittings of the National Court on the same day, as all three respondents were convicted of rape, and, the considerations which affect the question of sentence in each case are similar, the three appeals were heard together for convenience.

The learned trial judge has submitted a report under rule 33(a) of the Supreme Court Rules 1977, wherein he says:

�There were 8 matters dealt with by plea of guilty that day ...

... at the invitation of both the State Prosecutor and Public Solicitor, I was asked to read the depositions the day previously, which I did.

Of the eight matters, seven were offences of a sexual nature, one being from Manus.

Reading the depositions in advance, I gained the general impression that in New Ireland village communities, such offences are not regarded as seriously as they are in other parts of Papua New Guinea. Further, I gained the impression that such matters are often dealt with at village level and settled there, rather than by reporting the matter to the police. All three matters the subject of these appeals were dealt with by the police and by the witnesses as somewhat ordinary, not unusual, occurrences. All three cases occurred in a rural or village environment. All three accused were not New Irelanders. I decided to try and ascertain the custom of the people with regard to such offences.�

His Honour went on to say that while he personally does not treat the crime of rape lightly the lenient sentences he imposed reflected local attitudes. He sentenced Arape Etape to one year�s imprisonment and Poso Tapo and Petrus Mombi to two years� imprisonment each.

While the attitude of the local inhabitants is a factor to be taken into consideration in formulating sentencing policy, the trial judge would appear to have given it undue importance. In The Acting Public Prosecutor v. Tumu Waria of Yogos[cdlvii]¹�this Court said:

�In practice this Court has always regarded the degree of sophistication of the offender and the traditional ways of the community from which he comes as important in arriving at an appropriate sentence. But to over-emphasize considerations of this kind is to ignore what we consider to be an important role of the Court in upholding the law as laid down by Parliament. The Parliament has seen fit to provide substantial penalties for crimes of violence, clearly to ensure that the people will come to learn that violence cannot be tolerated in any organized society and that those who offend will be dealt with sternly. Only in this way will the incidence of violence be reduced.�

Tumu Waria[cdlviii]²�was a case of attempted unlawful killing but the principles enunciated in that case apply with equal force to these three appeals. Rape is a crime of violence. The maximum penalty of life imprisonment provided by the Criminal Code is an indication of the gravity of the offence. And, like other crimes of violence the offence of rape calls for a deterrent sentence. There would appear to have been a large number of cases of offences of a sexual nature in the trial judge�s list. The trial judge says in his report: �Such cases obviously predominate in the list�. The prevalence of this type of offence in New Ireland is an additional reason for imposing deterrent sentences.

While judges often take into consideration the fact that compensation has been paid on the supposition that it probably has the effect of preventing the commission of further serious crimes such as payback killings and the like, in the New Ireland Province this factor would not appear to be present.

In ordinary rape cases where there are no unusually mitigating or aggravating circumstances sentences of three years� imprisonment are commonly imposed.

The case of Arape Etape is a case of such an ordinary type. The offence was committed in broad daylight and the respondent was in so great a hurry � presumably fearing detection and apprehension � that while penetration took place ejaculation did not. We would increase his sentence to three years� imprisonment with hard labour.

We take a more serious view in the case of Petrus Mombi. He is an older man of some fifty years of age. He raped a young girl 18-19 years old, and this happened at night. We would increase his sentence to three and a half years� imprisonment with hard labour.

Poso Tapo is a man in his thirties, married with five children. His victim was a young girl going home from school late in the evening. She had not quite reached the age of puberty. The victim�s tender age and consequent physical immaturity are factors to be taken into account in aggravation of the offence. His counsel told the trial judge that the respondent was prepared to pay compensation but the girl�s father refused to accept it saying that it was not a case to be dealt with by native custom but by the Court. This denotes a trend in local attitudes away from the acceptance of compensation towards reliance upon and confidence in the Courts to adequately punish persons found guilty of rape. This confidence must be shown not to have been misplaced. We would increase his sentence to four years� imprisonment with hard labour.

Orders accordingly.

Solicitor for the appellant: K. B. Egan, Public Prosecutor.

Solicitor for the respondents: W. J. Andrew, Acting Public Solicitor.