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State v Camilus [2009] PGNC 144; N3760 (24 September 2009)

N3760

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.183 OF 2008

THE STATE

V

LUDWIG CAMILUS

Kokopo: Lenalia, J.
2009: 17th, 22nd, & 24th September

CRIMINAL LAW – Charge of rape – Plea of guilty – Criminal Code s.347.

CRIMINAL LAW – Plea of guilty to a charge of rape – Matters for – consideration – Breach of trust – No weapons used – Prevalence of offence – Sentence of 15 years imposed

Cases cited

John Aubuku v The State [1982] PNGLR 267
Lawrence Hindemba v State (1998) SC593
State v Dii Gideon (2002) N2335
The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Isaac Sip (No 2) (2004) N2543
The State v Ilam Peter (2006) N3090
The State v Ludwick Jokar (N0.2) (24.4.08) N3362
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989)

Counsel:

D. Kuvi, for the State
G. Kerker, for the Accused.

24th September, 2009

1. LENALIA, J: The accused pleaded guilty to one count of aggravated rape with breach of trust contrary to s.347 (1) (2) of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. Section 347 (1) and (2) state:

"347. Definition of rape

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

3. Aggravating circumstance associated with the charge is pleaded on the body of the indictment. It pleads that the prisoner committed this offence by abusing his position of trust, authority and dependency. Circumstances of aggravation include factors stated in s.349A of the Act That proviso states:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant’ or

(g) the complainant has a serious physical or mental disability; or

(h) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

4. Further s.6A of the Act sets out the groups or classes of persons who are covered by the definition of a relationship of trust, authority or dependency. In the present case, there is one aggravating factor present. That factor relates to the relationship of the victim and the prisoner. The brief facts presented to the court for purposes of arraignment states that the victim is the daughter of the prisoner’s wife sister.

5. As alluded to the above section states:

"6A. Relationship of trust, authority or dependency.

(1) When the term relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

Brief Facts

6. The facts of this case are really brief. The victim in this case, Rosalia Pereitak had been living with the prisoner and his wife for sometime at their block at Namutka between Warongoi and Pomio Districts. The victim is the daughter of the prisoner’s wife’s sister. The facts do not show if the victim’s mother is the elder or younger sister of the prisoner’s wife.

7. Be that as it may, the agreed facts show that on 14th July 2007, about 11 am, the victim fell hungry and went to the kitchen to cook some food to eat. While she was inside the kitchen, the prisoner came in and pushed her further into the inner part of the kitchen and asked her to undress. She asked him why he told her to undress.

8. The prisoner replied by saying he wanted to sexually penetrate her. He undressed her and started to fondle her breasts and vagina. He then undressed himself, he lifted the victim onto the bed and sexually penetrated her. The victim says, the act of sexual intercourse was done against her will.

Addresses by accused & Counsels

9. On the part of the prisoner, when allocutus was administered to him, he said he is sorry for committing this offence against his niece and her parents. He said sorry to the Heavenly Father, to the Court and his community. He said, this is his first appearance in court and the court should be lenient with him on sentence.

10. Mr. Kerker of counsel for the prisoner reaffirmed what his client said in allocutus and submitted the court should consider the following mitigations –

- his guilty plea to this serious charge,

- his previous good character,

- he co-operated with police during the record of interview,

- he had shown remorse, and

- the relationship of the victim to the prisoner.

11. Counsel addressed the court on the application of law by citing cases saying this case is not the worst type case. He said no violence was used against the victim and the offence was not repeated and it was not planned.

12. For the State, Mr. Kuvi submitted in answer that, the prisoner committed a very serious crime of raping his niece. He asked the court to consider the prevalence of this crime not only in this Province but in other Provinces of this country. Counsel submitted that this case was one of those very serious cases because it involved breach of trust, authority and dependency as it is a serious aggravation under s.349 (e) and if the court can add to that subsection (f) as well.

Sentencing trend

13. The offence of rape is a very serious offence indeed. An ordinary case of rape carries with it the maximum penalty of 15 years while in a case committed with aggravation such as the instant one, the prisoner could be sentence to life imprisonment. The rationale behind the legislature fixing life imprisonment for Subsections (2) is that a person who comes under definition of s.6A and s.349 (e) of the Act is supposed to be a close relative of an accused.

14. Secondly, where a person commits an offence of either sexual penetration or sexual abuse of a child with whom there is an existing relationship of trust, dependency or authority, it is the abuse and breach of trust that children have on their immediate family members such as fathers, mothers, brothers, sisters and all those characters defined in s.6A (1) & (2) of the Act.

15. Both the National Court and Supreme Court have often called for strong and punitive sentences as a means to deter the crime of rape: John Aubuku v The State [1982] PNGLR 267. The Supreme Court said in the above case that an offender who commits an offence of rape without any aggravations, sentences should range from 5 years and upwards. But the decision in that case was made some twenty seven years ago and the suggested tariff may not be suitable now but the principles stated there is good law.

16. The Supreme Court has on numerous occasions expressed the view that, rape is a violation of the women’s right of privacy. Where sex is had without consent, it is an act of selfishness and there is no love in it. Expressing this concern, the Supreme Court in Lawrence Hindemba v State (1998) SC593 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 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."

17. The sentencing trend in more recent rape cases has seen an increase because of factors such as offenders using force, or where victims are of young ages, or where there has been threatened force on victims and injuries caused to the prosecutrix, or where there has been abduction. Such cases should attract sentences between 15 to 20 years.

18. I acknowledge the force of the argument for higher penalties in cases of aggravated rape. To achieve the intention of the Parliament, the Courts need to follow what the Supreme Court said in the above case with some adjustment according to the circumstances of each case and extending the range upward where there are multiple factors of aggravations. This is the trend that has been followed so far in many cases.

19. An example of such appropriate approach can be seen in cases such as in State v Dii Gideon (2002) N2335 Injia J (as he then was) where a sentence of 25 years was imposed for a pack rape by 3 men of a 3 months pregnant overseas visitor with threats of use of weapons and after a home invasion and robbery.

20. In The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Isaac Sip (No 2) (2004) N2543 Kandakasi J, imposed sentences of 18, 20, 22 & 25 years for a gang rape by 10 men after a planned abduction in broad daylight with threats to third parties with bush knives after entering a private home in which the victim was taking refuge.

21. In The State v Ludwick Jokar (N0.2) (24.4.08) N3362 a case by Davani, J: in Wewak where the accused was charged with two counts of aggravated rape, he was found guilty and imprisoned to 12 years cumulative sentences. Year before last year in The State v Ilam Peter (2006) N3090, Lay, J: sentenced the prisoner for 14 years for a charge of rape.

22. It is worth mentioning the above cases to demonstrate to the public that the offence of rape is very serious so that all communities and the silent victims out there must know that their rights are protected by law and to see how serious the charge of rape is.

23. Of particular concern is the fact that, the victim in the instant case was a niece to the prisoner. In many Papua New Guinea societies, she would call the prisoner’s wife either auntie or ‘mother’ and call the accused ‘father’ in Pidgin ‘mama’ or ‘papa’.

24. In the present case, the circumstances of aggravations were pleaded on the indictment as compared to the case of The State v Dibol Petrus Kopal (2004) N2778. In that case no circumstances of aggravations were charged in connection with the charge of rape. Lay J (as he then was) found during the trial that circumstance of aggravations were present and he went on to say that such factors could be taken into account on sentence. (See also The State v James Yali (2006) N2989).

25. On sentence, I consider the prisoner’s guilty plea to this serious charge. Other mitigating factors have also been considered. But against the accused is the fact that, he took advantage of the victim being very closely related to him and his wife.

26. I differentiate all the above cases from the instant one. That is because the present case involved the victim who is the niece of the prisoner. She is the daughter of the prisoner’s wife’s sister. The Courts must safeguard the interests of each community and the family ties that have existed from time immemorial.

27. This case involved a one off incident as well as the instant case involves breach of trust pursuant to s.347 (2) of the Act.

28. I have considered the prisoner’s guilty plea to the charge, his statement on allocutus in which he expressed remorse. I have also considered the fact that there were no force or injuries sustained by the victim. According to the medical report compiled after examination of the victim shows that the victim had a torn hymen with the possibility of past sexual intercourse experience or experiences.

29. I have also considered the comments made by the biological mother of the complainant. In all the circumstances of the case, I consider that the prisoner be sentenced to a term of 15 years imprisonment. The time spent in custody shall be deducted and he will serve the balance.

_____________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused