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State v Gesa [2001] PGNC 68; N2137 (25 September 2001)

N2137
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1055 OF 2001

THE STATE

-V-

JOHN ALFRED GESA

MADANG : SAWONG J

2001 13TH & 25TH SEPTEMBER.

Counsel:
M. RUARRI, for the State

G. KOREI, for the Accused

25th September, 2001

DECISION

SAWONG J: The accused pleaded guilty to one count of rape an offence contrary to s. 347 of the Criminal Code Act.

On the afternoon of the 16th April, 2001 the prosecutrix was walking towards the Bilasigo Market. Upon arriving at the Badimon Cres in Newtown she met a man who told her that there was a short cut to the said market and he said that he would lead her around the shortcut to the market. He thus led her and they walked along Badimon Cres. But he then took her into the nearby bushes and had sexual intercourse with her without her consent. After he finished with her he left her and went away. She was still lying on the ground when the accused arrived at the scene and he too commenced to have intercourse with her without her consent. In his case he had intercourse with her two times that afternoon without her consent. After he finished and left another man came along and also had intercourse with the prosecutrix without her consent that afternoon. This was a gang rape.

The prisoner, is an 18 year old single man. He was educated up to grade 8 at the Yomba top up school and since he left school he has never been employed and had been living with his parents at Tarangau Street at Newtown, Madang town up till the time of the commission of the offence.

On his allocutus he told the court that he was a first offender. He also admitted that he raped the prosecutrix and that he had been influenced by his other friends. He asked the court for leniency and asked that the court place him on Probation.

The crime attracts a possible maximum sentence of life imprisonment subject only to s. 19 of the Code which gives the court some discretion to impose some other sentence. The proper approach to adopt in considering the appropriate sentence in rape cases are set out by the Supreme Court in John Aubuku v The State [1987] PNGLR. There the court held that where two or more people are involved in raping the prosecutrix the starting point will be 8 years imprisonment.

Subsequently, in Thomas Waim v The State [1997] SC519 the Supreme Court said:

"Those cases were decided ten years ago, and there has been an escalation in the prevalence and seriousness of the commission of rapes and multiple gang rapes over the period .. thus, twelve years for gang rape is now, in our respectful opinion, inadequate and inappropriate. Some recent decisions of the National Court have properly reflected the community’s concerns and imposed sentences of 14, 15 and 16 years."

In this case three men took turns in raping the prosecutrix. The accused raped the prosecutrix two times that afternoon. Thus the act was repeated. The offence is a serious and a prevalent one. It is a crime of violence. Many, many women folk in our society are now walking around in great fear, fear of being attacked, fear of being sexually molested and fear of being raped by men. There is absolutely no need for them to walk around in fear.

The judges of both the National and Supreme Court have been issuing warnings for many years. They have said consistently that anyone who commits crimes of violence such as rape, armed robbery and so forth will be sentenced to heavier sentences. Despite those many warnings, serious crimes of violence and prevalence have not abated, rather they have increased. There is therefore a need to send out a strong deterrent and punitive warning to the accused as an individual and also to other like-minded persons that those who commit serious, prevalent and violent crimes will be punished sternly by the courts. The sentence that I am about to impose will reflect that concern.

I accept in your favour that you are young first offender. The courts have always recognised that youth has always been a most effective mitigating factor. However, where serious and prevalent crimes such as rape, armed robbery are committed by young first offenders like you then they may not receive any special treatment unless there are exceptional circumstances which call for leniency. See Paulus Mandatititip v The State [1978] PNGLR 128. See also Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258. There are no exceptional circumstances shown in your case.
You have pleaded guilty and that has saved the girl from coming to court and giving evidence.

In the circumstances of your case I had seriously considered imposing a sentence of between 12 to 16 years imprisonment in hard labour. But I am minded by your youthfulness and that such a sentence would be a crushing one upon you.

In the circumstances I consider a sentence of 10 years imprisonment would be quite appropriate for your criminal conduct.

Accordingly you are convicted and sentenced to 10 years imprisonment in hard labour. From that I deduct the pre trial period of 5 months and 10 days leaving a balance of 9 years, 6 months and 20 days to serve in hard labour.
_____________________________________________________________________
LAWYER FOR THE STATE : PUBLIC PROSECUTOR

LAWYER FOR THE ACCUSED : PUBLIC SOLICITOR