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State v Tunamai [2000] PGNC 33; N1988 (20 April 2000)

N1988
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1022 OF 1995

THE STATE

-V-

OJAWE TUNAMAI

MADANG : SAWONG
2000 : 15TH FEBRUARY, 20TH APRIL

Counsel:
MR. WALA, for the State
MR. MAWESI, for the Accused.

20th April, 2000

SENTENCE

SAWONG J. On 15 February 2000, you were convicted for the crime of rape, an offence contrary to S. 347 Code. After submissions on sentence, I adjourned sentencing you as I was informed that your two co-accused had pleaded guilty and had been sentenced but neither the prosecutor nor your counsel was able to tell me the length of this sentence. I therefore adjourn sentencing you till that information was provided to the Court.

I have now been informed by Mr Wala, Senior State Prosecutor, that your two co-accused Paul and Mali, pleaded guilty to the crime and were convicted and sentenced to 4 years IHL.

Much of the facts of your case are set out in my decision on the verdict. I therefore do not propose to set these out in detail. But for the purpose of sentencing you, the relevant facts are as follows.

You and your two accomplices accosted the girl in a banana garden as she was returning from the store. The three of you then assaulted her and had sexual intercourse with her by force and without her consent.

You are a 27 year old single man. You are second born in a family of 3 children. Both of your parents are alive. You were educated up to grade 6.

The crime of rape is serious, prevalent and violent crime. The penalty under S. 347 is life imprisonment, subject of course to S. 19 Code, where the Court in its discretion may impose some other form of sentence.

The proper approach to sentencing in a rape case is as set out in John Aubuku v The State. It is not necessary to state these here.

Since then both the National Court and Supreme Court have imposed and confirmed sentences higher than the ones suggested in Aubuku case, which was decided 10 years ago. But naturally each case will depend on its own facts and circumstances.

In your case the only factor in your favour is that you are a first offender. There are no other factors in your favour.

This was trial, and as a result, the victim had to come to Court and give evidence against you in front of complete strangers and having to be cross-examined. She had to retell in detail the trauma that she went through that day. This was also a gang rape, where three of you were involved.

If it were not for the principle of parity of sentence, I would have no hesitation in imposing a sentence of more than 10 years IHL.

In the circumstance you are convicted and sentenced to 6 years IHL. I deduct the period of approximately 2 years, being remand period and you will serve 4 years IHL.
_____________________________________________________________

LAWYER FOR THE STATE : PUBLIC PROSECUTOR
LAWYER FOR THE ACCUSED: PUBLIC SOLICITOR