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State v Garasai [2010] PGNC 173; N4155 (12 November 2010)

N4155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1022 OF 2006

THE STATE

V

STEVEN TARI NANGIMON GARASAI

Madang: Cannings J
2010: 30 September, 6 October, 2, 12 November

SENTENCE

CRIMINAL LAW – sentencing – rape – sentence after trial – four counts – circumstances of aggravation on each count – abuse of position of trust, authority or dependency – whether sentences should be served concurrently or cumulatively – totality principle.

A man was convicted after a trial of four out of six counts of rape. He was a preacher at the time, about 30 years of age, and the four victims were flower girls in his ministry, aged 15 to 17 years. In each case the offender induced the victim to have sex with him by abusing his position of trust, authority or power – by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2) The following notional sentences were imposed (the offender having been found not guilty of counts 1 and 2): count 3: 12 years; count 4: 12 years; count 5: 14 years; count 6: 14 years. The total potential sentence is thus 12 + 12 + 14 + 14 years = 52 years imprisonment.

(3) The sentences should be served cumulatively as there were four different victims and four separate incidents.

(4) However, under the totality principle, the court should avoid imposing a crushing sentence, thus the total sentence was reduced to 20 years imprisonment, apportioned as follows: counts 3 and 4, 4.5 years each and counts 5 and 6, 5.5 years each.

(5) The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the victims or forgiveness or other resolution of the problems created by the offender.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Douglas Jogioba (2007) N4085
The State v George Tomeme CR No 920/2002, 24.08.07
The State v James Urig CR No 375/2009, 24.05.10
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Joe Sime CR No 1078/2004, 25.08.06
The State v Philip Kila CR No 722/2006, 15.07.09
The State v Philip Nangoe CR No 392/2006, 24.10.07
The State v Robert Yochie (2010) N4113
The State v Steven Tari Nangimon Garasai (2010) N4137

SENTENCE

This was a judgment on sentence for an offender who had been convicted of four counts of aggravated rape.

Counsel

N Goodenough, for the State
A Raymond, for the offender

12 November, 2010

1. CANNINGS J: The offender, Steven Tari Nangimon Garasai, commonly known as Steven Tari, is before the court to be sentenced after being convicted, after trial, of four counts of rape in circumstances of aggravation. The offences were committed over a three-month period, from March to June 2006, at Gal village, Madang Province. There are four victims, girls aged 15 to 17 years. Their names are "R", "F", "S" and "B".

2. An indictment containing six charges was presented against him. He was found not guilty of counts 1 and 2 and guilty of counts 3, 4, 5 and 6:

• count 3: rape of "R", aged 17, on 16 March;
• count 4: rape of "F", aged about 16, on 31 March;
• count 5: rape of "S", aged 15, on 27 April; and
• count 6: rape of "B", aged 15, on 30 May.
  

3. The accused was aged in his early 30s at the time. He started 'the Culture Ministry' in 2005. He preached to the local people and held himself out to be King Yali, a reincarnation of God Yali, the deceased leader of the Yali Movement. The accused's Ministry was popular and he preached to large gatherings on Sundays. He appointed flower girls to assist in the work of the Ministry and four of them are the victims in this case.

4. In each instance the offender induced the victim to have sex with him by abusing his position of trust, authority or power – by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. In each instance the circumstance of aggravation was that he abused a position of trust, authority or dependency, in that he was a religious instructor to the victim. Further details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Steven Tari Nangimon Garasai (2010) N4137).

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I want to thank the Court for giving me the last chance to have something to say. Though the Court has found that I have done wrong, the last thing I want to say is that, according to my ministry – I am the leader of the Culture Ministry – our country, Papua New Guinea, has deteriorated. My freedom and the freedom of the Culture Ministry have been spoiled. The worshipping within my Ministry has been spoiled. I am just following the doctrine of my ministry, my church, and following the stories of our great grandfathers, so my last words are these: this is going to be World War III.

PRE-SENTENCE REPORT

7. Steven Tari is 35 years old. His biological father is from Ufaf village in the Markham area of Morobe Province and his biological mother is from Siassi Island, Morobe Province. He was their only child but they divorced when he was young and he was raised in Manus Province by his mother and her new husband. However, it was an unstable upbringing. He describes his childhood as being that of a "street wanderer" without proper parental guidance. He is unmarried and has no children. His educational background is unclear. The pre-sentence report states that he only has a grade 5 education but at the trial he gave evidence that he had done some training, but not graduated, as a Lutheran pastor at Amron Bible College, Madang Province. He has never been formally employed. He relied on offerings from the Culture Ministry for sustenance. His physical health is sound.

8. As to his mental health, he says that it has suffered because of physical assaults at the hands of the police committed against him at the time of his arrest. Prior to the trial the court conducted an inquiry under Section 569 (want of understanding of accused person) of the Criminal Code into the matter of whether the accused was capable of understanding the proceedings. He was subject to psychiatric assessment and the Court concluded under Section 569(2) that he was capable of understanding the proceedings.

9. The pre-sentence report was silent on the question of the effect of the crimes on the victims. None was interviewed, nor were any of their relatives. As to how the offender was regarded in the community at the time, and how he is regarded now, there is little for the court to go on. Only one person has made a statement, a woman described as a 'strong and faithful servant' of the Culture Ministry, who was once a leader of the flower girls. The statement appears contradictory. On the one hand, it is said that it was commonly accepted that he was a good man, sent by God to help his followers go to Heaven. On the other hand, it is reported that the offender instructed his followers not to say anything to anybody about him or his Ministry or they will receive God's curse and not enter Heaven.

The report contains no recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mrs Raymond urged the court to take into account that the offender has no prior convictions and that each offence was committed without any accompanying physical violence. The offender did not believe that he was doing anything wrong. A belief system was in place and he acted at all times in accordance with it; as did the victims. He did not introduce it. All of these are significant mitigating aspects of the case. Although the sentences for each count should be served cumulatively, the court must avoid a total sentence that would be out of proportion to the nature and extent of the criminal conduct that has been proven. A total sentence of no more than 15 to 20 years should be imposed, Mrs Raymond submitted.

SUBMISSIONS BY THE STATE

11. Mr Goodenough highlighted the abuse of trust and authority of which the offender was guilty. He may not have introduced the belief system that enabled him to commit the crimes, but he took advantage of it, and he was able to do so and established his ministry in a remote part of the province where he was able to operate on his own rules away from public scrutiny. The sentences should be served cumulatively. A total sentence of 20 to 25 years imprisonment is warranted, Mr Goodenough submitted.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is the starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

13. Section 347 (rape) of the Criminal Code states:

(1) A person who sexually penetrates a person without [her or] 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.

14. Circumstances of aggravation were charged and proven in relation to each count. Therefore the maximum penalty for each offence is life imprisonment. The court has a considerable discretion whether to impose the maximum by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

15. I have expressed the view in a number of cases (eg The State v Philip Kila CR No 722 of 2006, 15.07.09) that the starting points when sentencing for rape should be:

• if circumstances of aggravation are not charged and proven (Section 347(1)): 10 years; and
• if circumstances of aggravation are charged and proven (Section 347(2)): 15 years.
  

16. I follow that approach in this case and use 15 years imprisonment as a starting point for each offence.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence I will consider other sentences I have imposed for rape in cases that in various respects have similarities with the present case.

TABLE 1: OTHER RAPE SENTENCES, 2006-2010

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

18. The offender is being sentenced for four offences. The court must fix a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

19. I will begin by examining count 3 in detail and fix a sentence for it, and then consider each of the other counts, comparing each to count 3 and fixing a sentence for each.

Count 3: rape of "R", aged 17, on 16 March

20. Aggravating factors are:

• large age gap (13 years) between the offender and the victim;
• the victim was an unsophisticated child;
• very severe breach of trust and serious abuse of the position of religious instructor.
  

21. Mitigating factors are:

• no weapon or aggravated violence was used against the victim;
• no physical injury was done to the victim;
• he was acting in accordance with the belief system of the Culture Ministry, adapted from the Yali Movement;
• he genuinely believed that he was doing nothing wrong;
• he is a first-time offender.
  

22. Taking all those factors into account and comparing this case with the precedents outlined earlier, I impose a sentence of 12 years imprisonment.

Count 4: rape of "F", aged about 16, on 31 March

23. This offence is very similar to count 1. I impose the same sentence: 12 years imprisonment.

Count 5: rape of "S", aged 15, on 27 April

24. This is a more serious offence than count 3, in view of the age of the victim (the victim was below the age of consent). The appropriate sentence is 14 years imprisonment.

Count 6: rape of "B", aged 15, on 30 May

25. The victim was the same age as the victim in count 5, so the sentence will be the same: 14 years imprisonment.

Total potential sentence

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

26. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there were four different incidents and four different victims. It follows that the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

27. I now look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive.

28. Sentencing a middle-aged man to a 52-year sentence would be tantamount to imposing a life sentence and I do not think that this case warrants that. The State has asked for a total sentence of 20 to 25 years imprisonment and I agree that that would more accurately reflect the degree of criminality involved. The defence counsel has conceded the cumulative effect of the four sentences warrants a total sentence of 15 to 20 years imprisonment. I consider that the meeting point between these submissions presents itself as a fair and just sentence.

29. I will therefore fix the total sentence at 20 years imprisonment, apportioned as follows: counts 3 and 4, 4.5 years each and counts 5 and 6, 5.5 years each.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

30. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 4 years, 6 months, 2 week.

STEP 8: SHOULD THE SENTENCE BE SUSPENDED?

31. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the victims or forgiveness or other resolution of the problems created by the offender. I have already taken into account the offender's belief in the doctrines of the Culture Ministry and the Yali Movement and his belief that he was doing nothing wrong. I decline to suspend any part of the sentence.

SENTENCE

32. Steven Tari Nangimon Garasai, having been convicted of four counts of rape contrary to Section 347(1) of the Criminal Code in circumstances of aggravation under Section 347(2) of the Criminal Code on each count, is subject to the following total sentence:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender