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State v Waigea [1998] PGNC 112; N1962 (10 November 1998)

Unreported National Court Decisions

N1962

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR637 OF 1998
THE STATE

V.
EUGENE WA/p>

Kimbe

Sakora J
9-10 November 1998

CRIMINAL LAW – Sentence – Rape – Physical invasion of and inrence with the person of a of a female – need to protect women from sexual predators – Criminal Code (Ch 262), s. 347.

Counsel

Mr J. Gah for the State.

Mr A. Talingapua for the Defence.

SENTENCE

10 November 1998

SAKORA J: You pleaded guilty before me yesterday to the charge that on 16 April this year at Hoskins here in the West New Britain Province you had sexual intercourse with a female by the name of Scholly Sukulogo without her consent. I confirmed your plea and convicted you of the offence of rape, and reserved sentencing till this afternoon.

The agreed facts upon which you pleaded guilty were as follows. On that day the prosecutrix, in the company of other relatives, was returning to Hoskins Station from the village of Gavaiva. They had been visiting some friends at the village. They started walking a mota motor vehicle came by and gave them a lift from Vovosi village. They were dropped off at the Titiro Club near the Station. As the group was walking towards the station you came from where you had been with a group of youths and ran after them.

It was the State’s case that when you caught up with the group, you grabbed the prosecutrix and took her away from the main road into the cocoa and coconut plantation. There was a struggle to free herself from you. She also attempted to cry out for help but you prevented this by covering her mouth with your hand. In the end you overpowered her and had her on the ground. You then removed her shorts and panties and had sexual intercourse with her. The prosecutrix gave you no consent or permission to have sexual intercourse with her.

What you did to or with this girl is a very serious matter. The offence of rape is one of the most serious offences under our laws. This seriousness is reflected in the punishment the law prescribes for the offence, which is the maximum penalty of life imprisonment. The law against rape is intended to protect women and girls from sexual predators such as yourself. Men who will use and abuse women for their own selfish sexual gratification. It is selfish because such men do not pause to think of the feelings and welfare of their victims.

As well as a sexual assault, rape is a physical invasion of and interference with the person of a female in the most private and intimate manner. It is beyond question that sexual attacks on women and girls have reached dangerous frequency levels. It is now a constant subofct of great concern, in all sections of our society. No longer can the female members of our communities go about their daily ightly) activities free from harassment, and the unwelcome and uninvited attention of men wmen who have nothing better to do than prey upon these innocent victims.

To be accosted and/or abducted by men who are intent upon subjecting one to invasion of privacy and accompanying acts of indignities and perversions is not such a pleasant experience for any women or girl. It is frightening to start with, and a very traumatic experience throughout. And it is not unusual for some to endure the effects, physical and psychological, of such sexual assaults long after the event. It must be noted also that, amongst other things mentioned here, rape itself is an interference with and breach of a woman’s right to freedom of movement accorded by the Constitution itself: s 52.

I have taken time to explain these things to you to impress upon you that what you did here is a very serious matter indeed. And this, in the process, answers your misguided statement in your Allocutus that “this kind of trouble is small”. As I have noted already, for this offence you are liable to the maximum penalty of life imprisonment. The Parliament did not think, and the Courts do not think, as you and other like-minded men may think, that rape is a “small thing”.

On the serious question of punishment, I have had the benefit of hearing both yourself and your lawyer. On your own part, you expressed remorse for what you did. You directed this, firstly, to the Court and then to the girl and her family. The court notes and takes this into account in the overall consideration of punishment.

In your Allocutus also you said that after your older sister and brothers got married, you the second last in the family have been directly responsible for the care of your parents who are now old. In the end you sought the Court’s merciful consideration. You are 19 years old and come from Galewale village in the Hoskins area. You are fifth in a family of six children. After attending the Hoskins Community School, you then attended two vocational schools: Badili in the National Capital District, and Moramora in Hoskins. At the time of the offence you were not in any formal employment.

Your antecedents reveal that you have never been in conflict with the law before this offence. I, therefore, consider you as a young first offender in my overall determination of an appropriate sentence.

On your behalf, Mr Talingapua also urged upon the Court your pleading “guilty” as a factor to take into account in your favour. Ahave done so, because youe your plea has had two immediate effects. The first is that it saved the State time, effort and expense in bringing witnesses to this Court to prove the case against you. Secondly, your plea has made it unnecessary for the girl, the victim of your crime, to come to Court and re-live her unfortunate and traumatic experience at your hands in front of a lot of complete strangers here. You have, therefore, saved her embarrassment and further trauma.

Mr Talingapua referred the Court to s. 19 Criminal Code Act. That law sets out various alternative sentencing options available to the Court. The Court can, therefore, in appropriate cases opt for a sentence or punishment less severe than the one the particular offence prescribes. In this instance, your offence attracts the maximum sentence of life imprisonment. Thus, fortunately for you, that maximum sentence is not mandatory. The law vests in me discretion to impose a lesser period. In the exerof that discretscretion, I have decided that the circumstances of this case do not warrant a lengthy period of imprisonment. It respectful opinion that this is nowhere near the most serious or worst type of rape cases ases that the Courts and the general community are becoming all too familiar with these days.

For a start, there is no evidence before me that the girl victim sustained any immediate or long-term physical injury other than the trauma associated with forced sexual intercourse. It is the judgment of this Court that a custodial sentence of 5 years imprisonment in hard labour would be appropriate in the circumstance.

You are, therefore, ordered to serve the term of 5 years imprisonment in hard labour.

Lawyer for the State: Public Prosecutor

Lawyer for the Defence: Andrew Talingapua