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State v Mariano [2000] PGNC 113; [2000] PNGLR 240 (18 August 2000)

[2000] PNGLR 240

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KEVIN MARIANO

WAIGANI: JALINA J
17, 18 August 2000

Facts

This prisoner was convicted of abduction and rape following a trial for same. Between 5.45 am and 6.00 am on 18 May 1998 the victim was on her way to work from her residence in June Valley towards the main road where she will be picked up by her employer’s transport. Whilst walking down with a Peter Kenny who lives further down the road they met three (3) youths walking up. One of the youths had his face covered while the other two (2) did not. She found out from Peter that the youth who had his face covered was Anton.

When they turned the corner they were surprised to see the same three (3) youths standing behind the flower garden. The youth who did not cover his face and whose name she did not know pointed a pistol to the side of her head and then spoke in Motu to Peter and Peter left her and went away. Anton then pulled her away from the road and she shouted once whereupon Kevin pulled a knife out upon instructions from Anton and swung at her telling her not to shout otherwise she would be killed. When Kevin the accused swung the knife at her she ducked and he cut her bag. They then pulled her along the little track up the mountain.

As they were going up she told Kevin and Anton that she knew them and asked what they were trying to do to her but they told her to just walk.

When they reached a place where there were some bushes up the mountain, the victim was raped by the three (3) youths and later by another boy who just arrived at the scene. While this fourth person was having sex with her she heard people calling. The voice of people calling got louder as they got closer and the youths left her and ran away.

Held

1. Sentencing guidelines for rape were set by the Supreme Court in John Aubuku v The State [1987] PNGLR 267.
   
2. The seriousness and effect of rape is expressed in the case of The State v Kaudik [1987] PNGLR 201.
   
3. Calls are made for stiffer penalties in rape cases. See the cases of The State v Waim [1995] PNGLR 187 and Lawrence Hindemba v The State (1998) unreported SC593.
   
4. Male persons taking advantage of a situation a female person may be placed, James Meaoa v The State [1996] PNGLR 280.
   
5. Taking into account all factors and circumstances surrounding the commission of the crime upon the victim and bearing in mind the call by both the National and Supreme Court for the need to impose stiff sentences as one of the means of reducing if not stamping out the prevalent, violent, disrespectful and undignified manner of treatment by men of the female members of the population, a sentence of 20 years imprisonment was imposed upon the prisoner IHL on the charge of rape.
   
6. With regard to the abduction, with a view to deterring men from abducting female members of the population for sexual gratification, a sentence of 5 years imprisonment IHL. As the abduction was committed in close proximity as to time and circumstance to rape, the sentence for abduction to run concurrently with the sentence for rape.
   

Papua New Guinea cases cited

James Meaoa v The State [1996] PNGLR 280.
John Aubuku v The State [1987] PNGLR 267.
Lawrence Hindemba v The State (1998) unreported SC593.
The State v Kaudik [1987] PNGLR 201.
The State v Penias [1994] PNGLR 48.
The State v Waim [1995] PNGLR 187.

Counsels

C Sambua with M Zurenuoc, for the State.
R Tupundu, for the prisoner.

18 August, 2000

JALINA J. This prisoner was convicted of abduction and rape following a trial for same. The victim’s evidence at trial shows that between 5.45am and 6.00am on 18 May 1998 the victim woke up at her residence at June Valley where she had been living with her husband since 1995 to go to work. She woke up her husband to take her to the main road to be picked up by the bus provided by her employer but he did not wake up so she went out of the house. She heard a married couple talking and upon recognising them she went back inside, got the key to the gate and went out again. She then saw Peter Kenny, Maria’s husband, in the vicinity of her area. Peter lived further down towards the main road. She then asked him where he was going and he told her that he was going to his house so she followed him to the road.

As they walked past the school they met three (3) youths walking up. They were greeted by Peter. One of the youths had his face covered while the other two (2) did not. She found out from Peter that the youth who had his face covered was Anton.

When they turned the corner they were surprised to see the same three (3) youths standing behind the flower garden. One of the 3 youths was the accused Kevin whom she had recognised the time Peter and her met them earlier on. She recognised the other youth who did not cover his face but did not know his name. She knew Kevin the accused who was from Goilala because he lived in the same street as her and her husband and sometimes he came to her house and drank cold water, chewed betel nuts and smoked with her husband.

Then the youth who did not cover his face and whose name she did not know pointed a pistol to the side of her head and then spoke in Motu to Peter and Peter left her and went away. She did not understand what was said in Motu. Anton then pulled her away from the road and she shouted once whereupon Kevin pulled a knife out upon instructions from Anton and swung at her telling her not to shout otherwise she would be killed. When Kevin the accused swung the knife at her she ducked and he cut her bag. They then pulled her along the little track up the mountain.

As they were going up she told Kevin and Anton that she knew them and asked what they were trying to do to her but they told her to just walk.

When they reached a place where there were some bushes up the mountain, the person she did not know tried her over and told her to remove her pants. Because she saw the gun in his hands she became scared so she removed her pants. He then unzied his trousers and told her to put her legs on his shoulder and he took out his penis and penetrated her vagina. Kevin was keeping watch while he was having sex with her. Anton sat on her head and told her to suck his penis. She refused but Anton hit her and pushed his penis into her mouth and she sucked it. After this other person finished having sex with her then Kevin the accused had sex with her. Then Anton forced her to sleep face down in spite of her refusal and he had sex with her from her rear. While Anton was having sex with her she heard two (2) other boys going up to where they were. One of the two youths who had just arrived then had sex with her. While this fourth person was having sex with her she heard people calling. The voice of people calling got louder as they got closer and the youths left her and ran away. She looked and saw that a youth named Billy and others were looking for her so she went up with him and then saw her husband. She was scared and crying so Billy took her to his sister’s house. His sister gave her a laplap to wear. She then went to her own house and saw a police car already there. She was taken to the police station and later to the hospital for medical examination. She said that the incident lasted for about 30 minutes.

The maximum penalty for rape is life imprisonment under s 347 of the Criminal Code Act Ch. 262 while the maximum penalty for abduction is seven (7) years imprisonment under s 350(1)(a) of the same Act.

On allocutus the prisoner decided not to say anything. His lawyer, Mr. Tupundu, apart from confirming the particulars of the prisoner’s antecedent report and referring me to the sentencing guidelines in John Aubuku v The State [1987] PNGLR 267, made no submissions at all in mitigation of sentence. Nothing that might influence me to be lenient on the prisoner was put to me. He simply left it to me to decide the aropriate sentence.

Ms. Zurenuoc for the State pointed out that the prisoner’s co-accused Andrew Marau was sentenced to 13 years imprisonment for rape by Salika, J. in 1999 and she tendered a warrant of commitment dated 10 May 1999 in suort. When I requested her to produce the judgment on sentence to ascertain whether Andrew Marau was in fact this prisoner’s co-accused she informed me that the learned trial judge did not publish any judgment.

As the victim gave evidence during trial about Anton being in prison and said nothing about Andrew Marau being involved with this accused and others in abducting and raping her, I asked Mr. Tupundu if he conceded that Andrew Marau was a co-accused to this prisoner but Mr. Tupundu was not prepared to concede. So the prisoner in the case before me must be taken as the only person who has been arehended in relation to the offence against the victim. Consequently, I have a free hand in deciding the aropriate sentence I should impose on this prisoner. I am not bound by the principle of parity of sentence. In other words I do not have to take into account the sentence imposed by Salika, J. upon Andrew Marau.

Sentencing guidelines for rape were set by the Supreme Court in Aubuku’s case (supra). In setting the guidelines the Supreme Court said that the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances. For rape committed by an adult without any aggravating or mitigating features, the Supreme Court said that a figure of five (5) years should be taken as the starting point. For rape committed by two or more persons acting together, or by a person who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years. Where one or more aggravating factors such as use of violence over and above that which was necessary to commit rape or a weapon is used to frighten or wound the victim, or the rape is repeated or the rape is carefully planned or the victim is subjected to further sexual indignities or perversions etc., the sentence should be higher than the suggested starting point.

In The State v Kaudik [1987] PNGLR 201 Amet, J. (as he then was) expressed in the following way at p 205 about the seriousness and effect of rape on the victim which I, with respect, adopt:

"Rape is generally regarded as the most grave of all sexual offences. In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences, the reasons for this are set out as follows:-

‘Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy.’"

In The State v Penias [1994] PNGLR 48, Injia, J. with whom I respectfully agree said at p 51 –

"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. Women in towns and 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 tranquillity, 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."

The National and Supreme Courts in recent cases have been calling for stiffer penalties in rape cases. For instance in The State v Waim [1995] PNGLR 187, Sevua J. has suggested that the guidelines in Aubuku (supra) should be reviewed. Referring to the decisions in Aubuku (supra) and another rape case of The State v Kaudik [1987] PNGLR 201 Sevua J. said, which I respectfully endorse:

"That was seven years ago. Rape is still a very prevalent crime in Papua New Guinea. Both prior and subsequent to these two cases Courts have warned over and over that sentences would increase."

I would add on my part that Aubuku was decided 13 years ago and needs to be reviewed and sentencing tariffs be increased to around 20 years on conviction following a trial for rape where aggravating factors as outlined in that case are present.

In James Meaoa v The State [1996] PNGLR 280, the Supreme Court in endorsing the opinion of Injia, J. in Penias’ case regarding male persons taking advantage of a situation a female person may be placed in, said at p 284:

"We also agree that the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they on a public road, in the gardens or as here on the coast. We agree that the right of all persons, female as well as male, not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless of age or background."

The warning by Sevua J. in Waim’s case (supra) in 1995 that sentences for rape would increase, was put into effect three (3) years later in Lawrence Hindemba v The State (1998) unreported SC593 where the Supreme Court in increasing the appellant’s sentence from 10 years to 15 years said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalent of the offence and the society’s demand for tougher sentences: see James Meaoa v The State (1996) unreported SC504, Thomas Waim v The State (1997) unreported SC519, and Sinclair Matagal v The State Unnumbered and Unreported judgment in SCRA No. 95 of 1996 dated 4 June 1998. These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

In deciding the sentence I should impose I note that he has no prior convictions which is the only aspect that is in his favour. Apart from that I note and take into account that he has expressed no remorse at all for what he has done. I also take into account the various aggravating factors such as the victim being abducted at gun point and then threatened into submission by use of weapons namely a knife and a gun and then repeatedly raped by the prisoner and three others. The victim was also subjected to indignities she did not deserve namely being forced to suck Anton’s penis.

I have no doubt in my mind that from the ordeal the victim was forced to go through from her abduction to the time she was repeatedly raped and subject to the indignities, that she would not be free from emotional stress from fear from being raped again in the future.

Taking into account all factors and circumstances surrounding the commission of this crime upon the victim, and bearing in mind the call by both the National and Supreme Court for the need to impose stiff sentences as one of the means of reducing if not stamping out the prevalent, violent, disrespectful and undignified manner of treatment by men of the female members of our population I consider a sentence of 20 years imprisonment to be appropriate which I so impose upon this prisoner for rape. From that sentence I deduct the one year and nine months he has spent in custody, which leaves 18 years and 3 months, which he has to serve in hard labour.

With regard to the abduction I consider with a view to deterring men from abducting female members of our population for sexual gratification that a sentence of 5 years imprisonment in hard labour to be appropriate which I so impose.

As the abduction was committed in close proximity as to time and circumstance to rape I order that the sentence for abduction be served concurrently with the sentence for rape.

Lawyer for the State: Public Prosecutor.
Lawyer for the prisoner: Public Solicitor.