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State v Penias [1994] PGLawRp 647; [1994] PNGLR 48 (26 May 1994)

PNG Law Reports 1994

[1994] PNGLR 48 - State v Kenneth Penias�

[1994] PNGLR 48

N1229

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KENNETH PENIAS

Alotau

Injia AJ

26 May 1994

CRIMINAL LAW - Sentence - Guilty plea to one count of rape - Aggravating factors - Masked and armed with a bushknife - Abducted victim and held her captive for two hours in the bush.

Facts

The accused committed rape upon the prosecutrix. He pleaded guilty. He wore a mask and was armed with a bushknife. He dragged the victim about 200 m from main road and, after keeping her for two hours, raped her.

The Court considered the aggravating and mitigating factors.

Held

There are four aggravating factors, which outweigh mitigating points. Offenders must be punished with a strong punitive and deterrent sentence. A sentence of nine years is appropriate.

Cases Cited

Aubuku v The State [1987] PNGLR 267.

Counsel

C Sambu, for the State.

D Sakumai, for the defendant.

26 May 1994

INJIA AJ:� The defendant pleaded guilty to one count of rape, contrary to s 347 of the Criminal Code Ch 262 (the Code). The maximum penalty for this offence is life imprisonment.

The circumstances of the offence, and these are not contested by the prisoner, are set out in the statement of the victim and her female companion. On Thursday 24 September 1992 at about 2 pm, the two girls were walking alone towards their village of Unai. When they reached Relabana Creek, the defendant came from behind, grabbed the victim, and dragged her into the nearby bush. The defendant wore a mask over his face and held a bushknife. The victim screamed and struggled to set herself free. In the process, she cut the palm of her right hand with the bushknife. Meanwhile, her companion got frightened and ran away to seek help. All this time, the victim struggled and begged her attacker to let her go, but he refused. He continued to drag her further into the bush and stopped about 200 m from the main road. There they stayed for a while. Later, he pulled her to another spot near the mangroves. By this time, it was about 4 pm. He asked her three times to have sex with him, all of which she refused. The third time she refused, he grabbed her by her "T" shirt and pushed her to the ground. She tried to scream, but he grabbed her by the throat, causing her to gasp for air. He then released his grip on her throat and told her, "If you want me to tie you up and leave you here, then do that (sic)". He forced her to have sexual intercourse once. In the process of penetration, she felt "sharp pains". After the one act of intercourse, he took her back to Begasi village and left her there after giving her a black "T" shirt to wear to replace the one she wore, which was stained with blood from the cut on her right hand. At Begasi village, she reported the matter to a council/committee man.

The next day, the victim was taken to Budoya Sub-Health Centre, where she was examined by Sister Anna Kogeta. Sr Anna said the victim appeared to be conscious and alert. She also observed that there were no tears or bleeding from the vagina. She found that there were bruises on her neck and a wound on her right hand.

On 29 March 1993, the defendant was apprehended by Alotau police and interviewed. He chose to remain silent.

The victim was a young woman, aged about 19 years.

The prisoner comes from Du'una village, Esa'ala District. According to the antecedent report dated 22 March 1993, he was then aged about 20 years old, married with one child who was two years old, and his wife was expecting her second child. It is also stated in that report that he left Salamo Community School in 1987 after only doing Grade 3, and that he had been employed by a company called Salcon for two years and by Ulabo Logging Company for one year. In court, his lawyer said the accused is 21 years old and married with two children who are eight years old and two years old, respectively. His lawyer says he was employed by Salcon for one year, but left this employment to get married. If my calculation is correct, he would have got married in 1984/85, allowing for the nine months pregnancy period of his wife's first child. That means that he got married when he was only 11 years old. In my view, this does not make any sense. There is some other information in his antecedent report which is inconsistent with his instructions to his lawyer. It is the duty of counsel to check this information and to put to the Court information which makes sense and is reasonable. In my view, having observed him in court, he appears to be in his mid 20s.

The prisoner has a prior conviction for a break, enter, and stealing offence. In 1988, he was convicted by the Alotau District Court (Grade 5) and sentenced to six months imprisonment. He was reported to be 17 years old at the time that he was sentenced.

The guidelines for sentencing in rape cases were set out by the Supreme Court in the case of Aubuku v The State [1987] PNGLR 267. In my view, the facts of this case fall into the third category of cases, in which a person abducts a victim, holds her captive, and rapes her. In such a case, a starting point is a sentence of eight years. It is rather forcefully submitted by the defence counsel that this case cannot be categorised as a case of abduction, because the State has not pleaded abduction as an aggravating factor in the indictment, as required by s 528(2) of the Code. As such, it is submitted, the State cannot rely on abduction as an aggravating factor. After all, it is submitted, abduction of women is a separate offence under the Code. In my view, this submission is misconceived. Section 347 does not specify abduction as an aggravating factor which warrants a higher sentence, so as to require the State to plead it separately in the indictment. The word "abduction" in Aubuku v The State refers to the ordinary meaning of abduction, which is to besiege the woman and take her away by force and hold her captive. It explains the circumstances in which the woman's consent is obtained by force and, hence, is an aggravating factor.

In Aubuku v The State, the Supreme Court pointed out some eight aggravating factors which, if present, would warrant a higher sentence than the starting point. Four of those aggravating factors are present in this case. First, there was violence, or force, over and above that was necessary to commit the rape. The victim was dragged into the bush with her hand bleeding, held captive for some two hours, tussled to the ground when she refused to have sex with him, and squeezed by her throat, causing her to gasp for air. All this was unnecessary. She could have been taken aside close to the road, forced to the ground, and raped in a matter of some minutes. Secondly, he used a bushknife repeatedly to threaten her. He also used the bushknife in such reckless way that the victim's right hand was cut, causing it to bleed. Thirdly, the rape was carefully planned, and the plan executed with determination. He was armed, wore a mask over his face, and followed the two girls for some time before he dragged the victim into the bush. It seems that he was masked throughout the episode. Fourthly, he has a prior conviction for an offence involving property. He has a conviction for break, enter, and stealing which, in my view, is a crime of violence.

However, there are some features in this case which reduce the seriousness of the offence. It took him some two hours to make up his mind to actually have sex with her. He showed some restraint. Also, there is no evidence of any serious physical injury, apart from the bushknife wound.

In Aubuku v The State, the offender was a policeman and the victim was a suspect in his custody at the police station. He was in a position of trust towards her. He used a knife to frighten her and raped her in the cell. He pleaded not guilty. The Supreme Court confirmed a sentence of ten years.

In the instant case, the prisoner has pleaded guilty. He also has some previous work record and a family of his own. He expressed remorse in open court and offered to pay compensation of one pig, valued at K200. I will take all these into account as mitigating factors.

However, the seriousness of the offence outweighs the mitigating factors. Rape is a prevalent offence in this country. I cannot describe the seriousness and prevalence of this offence any better than the Supreme Court said in Aubuku's case at p 268:

"We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence ... the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated violence or force. There is the emotional and psychological trauma. The woman feels violated and degraded. There are continuing feelings of insecurity, the painful memories, and the fear of venereal disease or pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim. Furthermore rape involves the abuse of an act which, in its right context, is a beautiful expression of love."

Further to the above, I would add some of my own remarks. Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence. Therefore, the sentence I will impose on the prisoner is intended to punish him and deter others.

Taking into account all the factors I have referred to, I consider that a sentence of nine years is appropriate. I will deduct the period of 14 months he has already spent in custody. He will serve the remaining period of seven years and ten months.

Lawyer for the State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.