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State v Peter (No 2) [2001] PGNC 8; N2297 (12 October 2001)

N2297

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1446 of 1998

THE STATE

-V-

EDDIE PETER (No. 2)

ALOTAU: KANDAKASI, J.
2001: 9th, 10th and 12th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Past sentences not deterring sexual offences – Sexual offences on the increase – Need for stiffer penalties – Sentencing discretion under s. 19 of the Criminal Code – No expressed statutory prohibition against "quantum leaps" or "disparity of sentences between co-accused – Calls for review of sentences repeatedly made with a view to increasing sentence but no substantial increase made – A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case even if it is a quantum leap – Criminal Code s. 19

CRIMINAL LAW – Sentence – Rape on one on one with threat and use of force – Victim young primary school girl on way to school – Offender married to victim’s aunt – Victim regards offender as a uncle – Relationship closure than a de facto one – 17 years sentence imposed Criminal Code s. 347

Cases cited:

James Mora Meaoa v. The State [1996] PNGLR 280.

John Aubuku v. The State [1987] PNGLR 267.
Thomas Waim v. The State (unreported Supreme Court Judgement 02/05/97) SC519.

Lawrence Hindemba v. The State (unreported judgement 27/10/98) SC593.

Counsel:

K. Popeu for the State
D. Kari for the Accused

12th October 2001.

DECISION ON SENTENCE

KANDAKASI, J: On Wednesday I found you guilty on one count of rape contrary to section 347 of Criminal Code after a trial. The Court then heard you and your lawyer as well as the lawyer for the State on the kind of sentence the Court should give you. In your own words, in your allocutus you asked for "power of mercy." But you did not express any regret or sympathy to the victim and show a preparedness to change and become a better law abiding citizen.

You told the Court and I note you have two children both under the age of six. You are a first time offender and have no prior conviction. At the time of the offence, you were about 34 years old and married with two children. Both your parents have long deceased and you have been living with your adopted parents at Naura not far from here and where the offence was committed. You have up to grade 6 six formal education and have managed to find employment as a carpenter first and later as a harvester with Milne Bay Estates. Following your arrest, you have been in custody for 3 years one month and 15 days to today.

At the same time I note that, the victim of your crime was only a primary or community school child at the time of the offence. She was on her way to her school on that fateful morning when you raped her. No doubt she missed school that day. She suffered injuries to both of her knees in the process of unsuccessfully trying to run away from you. You used a grass knife to threaten her and force her to fall prey to your evil sexual desires. After raping her, you denied committing the offence despite the evidence against you as confirmed by your own blue jeans taken off from you by police on the same day of the offence and found to have sperm and blood stains on them consist with the victim’s and prosecution evidence. Your denial meant that the victim had to come to court and re-live the bad memories of the rape on her when you had nothing substantial in reply.

You are a married man. If you really had a sexual drive that day, you should have asked your wife for it and if she was willing, you could have satisfied yourself. You have not given any explanation to this Court as to why you could not do that. Instead of making use of that avenue, you picked on an innocent school child who was on her way to school. You had sometime earlier tried to force her to have sexual intercourse with you without success. You are an uncle to her by virtue of your marriage to her aunt, your wife. She therefore had no expectation whatsoever that you could do such a thing to her but you did. You betrayed the trust she had in you as an uncle or someone she knows and calls an uncle. You invaded her person and privacy. You left her with scares she will never easily overcome as she lives on. It is not clear whether she will be able to have a boy friend, get married and have a normal live.

What you did to the victim is an offence not only against her, her family and relatives but also against all young girls, women, and the community in the Milne Bay Province and the whole country of Papua New Guinea. There is already danger out there in the streets and highways of our beautiful country because of people like you. When all else is not safe any more, there is at least one place, the unit formed by family, relatives and friends because of the relationships that exists there. However, when such bad conduct creeps into these places which are sacred and dear to a person when all around is unsafe, it is a very serious thing that must be visited with stiffer penalties to deter other like mind persons of your type. Indeed, the Supreme Court acknowledge that position and confirmed a sentence of 14 years in James Mora Meaoa v. The State [1996] PNGLR 280. The Court there held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. In your case, your relationship with the victim was close. She was a part of your family as much as you were. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal satisfaction that could last only a few minutes and in the process you destroyed an innocent schoolgirl’s whole future to live freely as a human being.

Parliament on behalf of the people prohibited such conduct by enacting s. 347 of the Criminal Code and prescribed a maximum penalty of life imprisonment. A number of Supreme Court decisions have elaborated on the relevant sentencing guidelines in this kind of cases. The much-celebrated case of John Aubuku v. The State [1987] PNGLR 267 is an example. These cases make it clear that the offence of rape is a serious crime and it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. Sentences range from 5 years for rape by an adult without any aggravating or mitigating features to life imprisonment where there are aggravating features, such as perverseness, mental disorders or other serious aggravating factors.

These principles have been consistently applied in many subsequent cases with variations especially on the suggest sentences. In Thomas Waim v. The State (unreported Supreme Court Judgement 02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing the Supreme Court said:

"This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed."

More recently, the Supreme Court in Lawrence Hindemba v. The State (unreported judgement 27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. In so doing, it surveyed some of the cases decided up to the date of the judgement and said these:

"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 prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (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."
(Emphasis added)

The Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim a young schoolgirl from school. The rape was committed in the presence of the victim’s schoolmates who ran away.

In your case, you pleaded not guilty. As already noted, that forced the victim to come to Court and go through the agony of re-living the memories of the rape on her. This also means, the penalty in your case has to be well above the sentences in guilty plea cases, some of which have been mentioned above. The other factors against you as already noted are that, you did use force and or threat to commit the rape on the victim after an earlier failed attempted. You are not a stranger to her but an uncle to her because of your marriage to the victim’s aunt. By committing the crime against her, you betrayed the trust she placed in you. She was a young schoolgirl who was on her way to school when you grabbed her and raped her. Given your earlier failed attempt at having sexual intercourse with her and your relationship to her together with living next door to her, you appear to have planned the rape and executed it. This is evidenced by the fact that you were masked and were waiting for her to turn up. These factors places your case just above James Mora Meaoa v. The State (supra) but little lower than Thomas Waim v. The State (supra), in terms of the features.

Given the particular circumstances of your case including the adverse consequences of the offence on the victim and the society’s abhorrence of the offence, I consider a sentence of 17 years appropriate. In arriving at this sentence I note that the sentences of the past decided cases are only guides. An appropriate sentence for each subsequent case is usually based on their particular circumstances. In the exercise of the discretion vested in him or her, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.

I note that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. In my view, the increase in such offences is in part, a reflection of the sentences imposed to date not serving their intended purpose of deterring other would be offenders. This therefore calls for a serious re-examination of the kind of sentences that have been imposed to date. The Supreme Court in Lawrence Hindemba v. The State (supra) did echo that need as noted in the above quotation. In my view however, the kind of sentences that have been imposed since even Lawrence Hindemba have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

Of the numbers of matters on this circuit list, sexual offence cases feature quite prominently, with a total of 21. This is reflective of the fact that although the Courts have indicated in the recent past that they were reviewing the sentences that have been imposed before them, there has been no meaningful sentencing reflective of that. My brother Justice Sevua did try to meaningfully review and impose a sentence much higher than those imposed before his judgement in Thomas Waim v. The State (supra) by imposing a sentence in total of 25 years. Unfortunately the Supreme Court struck it down to 18 years on the basis that the sentence imposed by the National Court was a "quantum leap."

There is no expressed legislative prohibition against "quantum leaps." Parliament after having considered all things prescribed a maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter a range. It is the judges that have considered it appropriate to start as low as 5 years (see John Aubuku (supra)) and are yet to impose the maximum prescribed penalty. In the meantime this serious evil against society is on the increase. I consider it inappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society.

Bearing these in mind, I have decided to impose the term of 17 years as an appropriate pronouncement against the offence in this case. I have also decided to impose that term to meet the society’s call for tougher penalties to deter would be offenders and consequently restore the safety of our girls and women, both on and off the streets and in all manner of relationships.

From the 17 years, I deduct the 3 years and one month 15 days you have already spent in custody. That will leave you with 13 years 10 months and 15 days to serve from today. I order that you be imprisoned and serve that term in hard labour at Giligili CIS.
________________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor