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State v Dioro [2003] PGNC 74; N2431 (25 July 2003)

N2431

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 478 OF 2003

THE STATE

V

ALPHONSE APOU DIORO
(‘Prisoner’)

Waigani: Davani .J
2003: 16, 24, 25 July

Practice and Procedure – Criminal Law – Sentences – Rape – Gang/Pack rape – Plea – Aggravating factors – mitigating factors – planned pack rape of 15 year old girl over several hours using bush knives, guns and assorted weapons – sentence of 16 years.

Cases cited:
State v Anis Noki [1983] PNGLR 426;
State v Peter Kaudik [1987] PNGLR 201.

Counsel:
L. Tabie for the State
J. Mesa for the Prisoner

25 July 2003

DECISION
(on sentence)

DAVANI .J: On 25.7.03, I handed down a verbal decision and informed counsel that I would later present a detailed written judgment. This I do now.

The Prisoner pleaded guilty to one count of Rape that he on 20th August 2001 at Laloki, raped a female aged 15. In the Record of Interview with the Police, the Prisoner said he did not know his age. His lawyer submitted he could have been 14 at the date of the offence which makes him 16 or 17 at the date of trial. On my observations, he has the physical characteristics of a young man. I find he may be between 18 and 21 years.

The evidence is that about 3 am in the morning of 20.8.01, about 9 to 10 men broke into the victim’s home. They were armed with axes and bush knives. They physically assaulted her father using a bush knife and other weapons, rendering him unconscious. They then tried to drag away his 2 daughters resident in that flat but only managed to drag away the oldest one. They dragged the victim away, then assaulted her with a piece of wood after which they pointed a bush knife at her stomach and dragged her away. They threatened to kill her with an axe and a bush knife if she screamed for help. The evidence shows they were armed with bush knives, axes and home made guns. They subjected her to continuous rape and other vulgar acts throughout the night after which they released her in the early hours of the morning. She said there were many men who took turns raping her. The evidence shows that the victim felt a lot of pain in her genital area whenever the acts of sexual intercourse occurred. She said she recognized the prisoner because he was a regular visitor to the compound her family and her were resident in. The evidence shows that after the prisoner and his accomplices left the victim, it was about 6am. She was left on a stretch of a road some kilometres away from her home. She walked home from there.

The evidence shows that the victim was subjected to horrific gang rape by several men. She endured a lot of physical pain. In fact, the medical report conducted on the victim showed there to be tears of various lengths in the genital and vaginal area.

The evidence also shows that the rape was planned because the Prisoner knew the victim and her family and where they lived. The evidence is that he guided his accomplices to the victim’s home that fateful night.

I have heard this is the Prisoner’s first offence and his plea of guilty saved the court time. He also said he is sorry for what he has done. However, the aggravating factors outweigh the mitigating factors in this case. It is a known fact that I take judicial notice of, that gang rapes are now a common occurrence in Papua New Guinea.

Sentencing must reflect the nature of this crime, and any crime for that matter. In the case of the State v Peter Kaudik [1987] PNGLR 201, judgment delivered on 8 June 1987, by Amet .J as he then was, the court discussed various factors to be relied on when sentencing. These were:

1. Violence is used over and above the force necessary to commit the rape;
2. A weapon is used to frighten or wound the victim;
3. The rape is repeated;
4. The rape has been carefully planned;
5. The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;
6. The victim is subjected to further sexual indignities or perversions;
7. The victim is either very old or very young;
8. The physical or mental effect upon the victim.
   

His Honour in that case held that where any one or more of these aggravating features are present, that the sentence should be substantially higher than the figure suggested as the starting point.

For this case, I find, with the exception of the previous conviction, that all the above factors are present. The court in Peter Kaudik (supra) sentenced him to 12 years in hard labour for the rape count.

In another case of State v Anis Noki [1983] PNGLR 426, a judgment delivered by Woods .J on 12 August 1993, the accused, a member of a gang, raided a settlement and broke into the house whilst the victims were asleep with their families. They abducted a woman and young girl and raped them. The court found after a trial, that because he was a member of the gang, that he was equally responsible for the abductions and the rapes. The court found the accused guilty of 2 counts of abduction and 2 counts of rape. In that case, the learned judge said;

"If you want to live and behave like this, society has no alternative than to remove you from the society so that everyone else can be safe. This was not an accidental attack or something you did not mean. This was a deliberate attack on innocent people. Such a vicious attack demands the heaviest of penalties." (my stress).

The court sentenced the prisoner to 6 years on each count of abduction and 15 years on each count of rape to be served concurrently at 15 years.

I too share the same sentiments expressed by Woods .J, that I refer to above. Sentences must reflect the seriousness of the offences and in this case, gang rape.

This rape is horrific and for the victim and family, a trauma they will live with for the rest of their lives. Sentences have ranged between 14 to 18 years or even more. The maximum sentence for rape is life imprisonment subject to the court’s sentencing discretion under s. 19.

In this case, because it is a plea, and relying on the above cases, the court considers a sentence of 16 years to be appropriate.

The Prisoner was arrested on 14 May 2002. He has been on remand since. The period of 16 years will be reduced by the time spent in custody of 1 year, 2 months and 11 days. He shall serve the reduced term of 14 years, 9 months, 2 weeks and 6 days in hard labour.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor