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State v John and Mase [1989] PGNC 27; N797 (22 November 1989)

Unreported National Court Decisions

N797

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR: 906 OF 1988)
THE STATE
V
KOPA LORE JOHN AND PAUL MASE

Waigani

Hinchliffe J
22 November 1989

CRIMINAL LAW - Robbery - Abduction - Rape - Armed with dangerous weapons.

SENTENCING - Principles of- Nature of offences in the most serious category - Deterrence - Aggravating factors - Dangerous weapons used - Advanced age of victims - Force used against victims - Shoot-out with the Police - Mitigating factors - Plea of guilty - Young and first offenders - Co-operation with the Police - Most of the stolen property recovered - Factor of no prior convictions insignificant in a serious case such as this one - Alcohol abuse.

Cases Cited:

John Aubuku v. The State [1978] PNGLR 207

The State v. Peter Kaundik [1987] PNGLR 201

The State v. Michael Amuna Koupa [1987] PNGLR 208.

Sentence

On a plea of guilty by the two accused to charges of stealing with violence, unlawful abduction and rape the following reasons for sentence were delivered.

Counsel:

G. Toop, for the State

S. Kemaken, for the accused.

Cur Adv vult

HINCHLIFFE J: You have bothded guilty asty as follows:

On the 18th May, 1988 at Port Moresby you stole from one H and one W with actual violence a lquantity of assorted goods and cash money all valued at K70,746.40 the property of H and W nd W and at the time you were armed with dangerous weapons namely a .38 calibre pistol and a bushknife.

Secondly, on the 18th May, 1989 in Papua New Guinea you took away one W against her will with intent to carnally know her. Thirdly, on the 18th May, 1988 you committed rape upon one W. The offences are extremely serious. On counts one and three you could be sentenced to life imprisonment. On count two the maximum penalty is seven years imprisonment.

H and W made comprehensive statements regarding this whole affair and I now propose to take an unusual course. I will read aloud most of their statements in Court because I am of the view that that is the only real way that people can understand and appreciate the enormity of the offences and the sheer terror, humiliation and violence H and W were subjected to on that evening.

STATEMENT OF H

“On the evening of Wednesday the 18th May, 1988 at approximately 9.30 p.m. I was sitting watching television in my house with my wife W. I heard a noise downstairs and said to my wife, “I think there is someone downstairs.” She said, “I didn’t hear anything.” I said, “I’m sure I heard a noise I will go and check.” I then went downstairs to investigate. I switched on the outside lights but I could not see anybody outside. I then returned up the stairs and I heard my wife say, “I know there are armed men here in the house.” When I arrived at the top of the stairs my wife was sitting on the floor next to the stairs. One man, a Papuan, approximately 20-23 years of age was bending over her with a revolver pointing at her head. I could see that it was a real revolver but I did not know whether or not it was loaded. It appeared to me to be a police issue .32 or .38. There was another man standing on the other side of my wife holding a bushknife above her head. I said to the men, “What do you want?” And one said, “Sit down and shut up you dirty white shit?” The other one then said, “We want money; we want what you have got.” The one with the bushknife then told us to hand-over wrist watches which we both did. He proceeded to cut the electric light cord from a lamp behind a chair from which I was previously sitting and he bounded my hands behind my back. He also cut the telephone line. The man with the gun said, “We don’t want you. We just want money and the car. We are going to get a Minister of Parliament and kill him the dirty bastard. If you do as you are told, you won’t be hurt.” The two men so far as I could see, had climbed up from outside of the house onto the upstairs verandah and shortly they were joined by one other man and a boy who would be about 12 years of age. The boy was wearing shorts and a black shirt which he had pulled up so that his face would not be seen. They then said they needed the keys of the Ford car and I told my wife not to argue with them. I told them they could have the keys to the car. One of them took the keys and they were joined by the fourth man.

Soon after this I heard a loud noise of cars crashing in the drive way. In the process of driving the Ford car they reversed it with its door open, into a fourth truck. They jammed both vehicles together smashing the door on the fourth truck and damaged the side of the truck. The man held the revolver to my temple and asked if there was anyone else in the house. I told him there was not. The one with the bushknife said, “If we find anyone else in this house, you are dead.” I said, “There is no one else here.” They then forced me to go into a bedroom where they tied my feet together and told me to sit there and keep quiet. He then tore a piece of towel into splits and made a gag which he tied around my head pushing the knot into my mouth and tying it tied. One man stood over me with a hammer and threatened on many occasions that he was going to smash my head in with the hammer. He said, “if I don’t get the money we will burn the house with you inside. I will get the kerosene now.” he called out to one of the others, “get the kerosene and spread it around.” One of the other men said, “if you have no money we will kill you because we need money.” I heard one may say to the other, “bail moni be hida” and the other replied, “K100.00.” I said, “I have some Australian money, but it is upstairs in the bedroom.” He then forced me at knife point up the stairs to the bedroom. We got there and the boy was already in there. He’d been through the top drawers of the bureau of that room and had taken the Australian currency of $400.00 to $500.00. The man with the knife who for some time had been threatening to kill me then struck at me with his bushknife and I moved but the knife snicked my ear. When he saw the blood he said, “Now I can kill you, you bastard” and raised the knife as if to stab me with it in the throat. One of the other men, a young Papuan man who was taller than the others who has a scar which is about 1.5 inches long just below his collar bone grabbed him and said, “We are not murderers, do not do that” and restrained him. They then forced me back downstairs into the second bedroom where they put the heavy material bedcover over my head and tied it and told me to stay there and not move. They said that if I cried out and made any move that they’d kill my wife then kill me. They said that if I got the police and if they read anything in the newspapers that the police were looking for them that they would come back and kill my wife and kill me. These threats were repeated constantly. They were looking for suitcases. I could not see what was going on because I had the bedcover tied over my head. They were in the house for approximately thirty to thirty-five minutes and I then heard my wife’s Toyota Landcruiser driven up the driveway.”

STATEMENT OF W

“My husband H and I had been watching television after dinner. My husband heard a noise downstairs and went to investigate. I heard someone speak behind me. I turned to see two national men coming through the open verandah door. They had wrapped their shirts around their heads. One had a bushknife, the other with a pistol pointed at my head. My husband came back and they told us, “Make no noise, sit down.” One man then cut the telephone cable and cut the cord from a standard lamp and they then tied both my husband’s and my hands behind our backs. All the time they were demanding money. They took our watches from us, they then took us into the spare bedroom where they made us sit on the bed. In the meantime two more men had come in. All of them were threatening us with their knives and with their gun. One kept saying, “We want bail money.” They bound my husband’s feet with wire and gagged him. They started to gag me and stopped. They wanted the big car keys and asked, “Is it automatic?”, I answered, “Yes”. When I showed one of them the drawers where the keys were kept he kept asking, “Will the alarm go off if we open this. If one does I will kill you.” I said, “No, we don’t have alarm systems.” He finally opened the drawer and took out the keys. While doing this they were picking up various items around the house. One man tried to drive the Ford automatic and I heard a big crash. They then asked for the keys to the Toyota and asked me if I could drive it. I was taken to the Toyota Landcruiser and told to get in and drive it. I said, “I can’t with my hands tied.” One of them then cut the wire with the bushknife and while doing this cut the back of my hand with a bushknife. I was taken down again and into the bedroom to find my husband bleeding from his left ear. I said, “Why have you done this, he can’t hurt you.” Some of the men were putting things into suitcases which they had taken from the cupboards. While one was disconnecting the television set, he said to me, “What is this cable? Is it an alarm?” He said, “If this is an alarm and it goes off, we will kill you.”

They took a number of items, they then forced me at gun point to sit on a chair in the lounge room. One of them picked up a heavy glass ash tray and said, “Don’t make any noise or cry out or I will smash your head.” I was then forced to go out of the house to the Toyota Landcruiser. I was told by one of the men to get into the car. He said, “You will drive it.” He and four others stood around me. One had the gun and the others had bush knives and other knives. I got into the driver’s seat. Three got in the back and two got along side of me. The one in the middle of the seat next to me had the gun. He said, “You see the gun, you take it, here take it.” I didn’t touch the gun as I had a bushknife held at my back while this happened. (W then indicates what roads she was driven along). One said he had escaped from Bomana. He seemed to be the leader. He said that he would not rape me as rape was for the Highlanders. One said, “Don’t call the police and don’t tell them to come the way we are going because there are hundreds of us who will come back again and get you.” They were laughing and talking occasionally in English and I had the impression that this was the first time they had committed a crime together and wanted to go into bigger criminal activities. One asked, “Do you have any children?” I said, “No” and he said, Do you have a daughter? I would like to meet your daughter.” One said, “How long have you been in Papua New Guinea.” I said, “Twenty (20) years.” One said, “How old are you?” I said, “Fifty (50), I could be your mother. This is a bad thing you’re doing, you are ruining your lives.” The man behind me continued to hold the bushknife behind my back. Eventually all the stolen goods were off loaded. They had decided they would rape me even though the man I assumed to be the leader had been saying up until then that they wouldn’t. I tried to change their minds. I said, “I’m old enough to be your mother. Your own mothers would be very sad to have their sons do such a thing.” (Then W goes on to indicate how four of the men raped her and that the young boy was stopped. After the rape W goes on).

“I was made to get into the car and then one said he had dropped the gun. I was terrified. I did not know where they were taking me next or what they wanted to do with me. The one beside me held a small knife constantly near me. The one beside me had a bush knife between me and the door. I saw in the rear vision mirror a car had turned around. One of them said, “it’s the police.” A knife was put to my throat by the man next to me. He told me to drive very fast. “Hit 120,” he said. I said, “I can’t drive with a knife at my throat.” He took the knife away. The boy was telling me which were the sharp corners. One of the men at the back smashed the window and I heard shots being fired at the police. The police started firing back with what sounded like a shotgun or a rifle. I crouched down as low as I could over the steering wheel and continued to drive. The car eventually stopped near the Badihagwa High School. There were two very big bangs of gunfire close by. I threw myself face down on the front seat with my hands over my head until the driver’s door was opened by a policeman.”

There is no doubt that the community is revolted by the way you and your associates behaved on that evening. In the case of the State v. Michael Amuna Koupa in [1987] PNGLR 208, a case very similar to the present, Mr. Justice Wilson said at p 211 of the report, “It is unfortunately not uncommon for such actions to be acquainted with the behaviour of animals in such circumstances as this, but I find that deposition not appropriate as I know of no animal species that would treat its own type in such a foul and inherently degrading way.” I endorse those remarks completely. His Honour could well have been speaking to the both of you.

Your lawyer has asked me to take into account a number of matters when assessing penalty.

Firstly that neither of you have prior convictions. It seems to me though that the fact that you have no prior convictions becomes very insignificant when considering penalty in such a serious case as this one.

Secondly that both of you have pleaded guilty. That is an important point and I will take particular note of what the Supreme Court said in John Aubuku -v- The State in [1978] PNGLR 201.

Your pleas of guilty will save H and W from being cross-examined, i.e. publicly in the witness box and therefore not having to relive the nightmare that they went through. Needless to say, even a plea of guilty in a case as serious as this loses some of its weight.

Thirdly that you co-operated with the police. Although I do note that you, Paul Mase, denied the rape at first. Your lawyer said that I should take note that you surrendered to the police but I also note from the record of interview that because of family pressure you had little choice but to surrender.

Fourthly that you are young men. I take note of that but again I say that it becomes less important because of the facts of this case. The two victims did not have a chance against you. You were all young and strong. The victims were middle aged. H is 57 years and W 50 years. You cared not about their advancing years and attacked them in a pack in such a way that can only be described as cowardly and brutal. People such as you are usually only strong in a pack. Either of you by yourself would probably not have the courage of a small child. During your attack, real threats were made on the lives of both the victims. That is with the gun and also knives. H received a knife wound to his left ear and W received a cut to her left hand. It indicates to me that you and your associates meant business and I am satisfied that the victims stood a very real chance of being murdered on that evening. The knife attack on H is an example of that. It seems to me that it was only a matter of inches between life and death. He could have had his head separated from his body. The threats on W’s life continued in the car before and after the time that she was raped. Your treatment of her can only make any real man feel sick in the stomach. It is clear from the depositions that you were drunk when all this occurred and that it was your original intention to get some money to buy beer. I now repeat what I said in a recent case:-

“There is no doubt that alcohol abuse is the cause of the majority of the crimes in this country. And I would say, one of the main contributors to the dismal law and order situation that we are all being affected by. It is a drug. Unfortunately a lawful drug but it has a similar damaging effect as any unlawful drug such as marijuana or cocaine. It is so destructive that it destroys families and causes untold worry, sorrow and misery. One wonders why there are not severe restrictions placed on its sale and alcohol content. In any event it should be discouraged through education and advertising”.

See The State -v- Evelyn Rapola (Unreported CR.382 of 1989). I consider that the nature of these offences place them in the most serious category.

When a man and a woman can’t feel safe in their own home then there is a serious law and order problem. People look to the Courts to deter others. I adopt the words of Mr. Justice Amet in The State -v- Peter Kaudik [1987] PNGLR 201 when he said at p 207:-

“The sentence of this Court, I believe should reflect the society’s utter revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same right to be respected as do men, in their private persons”.

I should also say that your situation is not helped by the fact that you had a “shoot out” with the police. You could have killed a law enforcement officer but obviously you did not worry or care. You have no respect for human life or property. Your lawyer has asked me to consider the principles of totality and I so do. I must say this though that I have given serious consideration to a term of life imprisonment because of the enormity of the crime. But I have decided against it in particular because of your plea of guilty and the fact that most of the property has been recovered.

There is little else in your favour. As in the case of State -v- Koupa (Supra) I am of the view that the first and the third counts should be cumulative and the second count should be concurrent with the third. I do not see it as one transaction.

In relation to the count of robbery, you are convicted and sentenced to eight years imprisonment in hard labour.

On the count of abduction you are convicted and sentenced to four years imprisonment in hard labour.

On the count of rape you are convicted and sentenced to ten years imprisonment in hard labour.

The penalty in respect of the first count, i.e. eight years imprisonment, is cumulative on the penalty imposed on the first count, i.e. ten years imprisonment making a total sentence of eighteen years imprisonment in hard labour.

The sentence in respect of the second count is to be served concurrently with the penalty imposed on the third count.

As both of you have already served eighteen months in custody I order that you now have sixteen years and six months left of the eighteen year term to serve in prison.

I recommend that Kopa Lore John be transferred to the Corrective Institution in the Gulf Province as soon as possible.

Sentenced accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for Accused: Karingu, Sitapai i& Kemaken