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State v Tumai [2012] PGNC 320; N5166 (26 November 2012)

N5166

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 392 OF 2006

THE STATE

V

KARO TUMAI

Popondetta: Toliken, AJ
2012: 9th August, 26th November

CRIMINAL LAW – Sentence – Rape – Plea - Mitigating factors considered – Aggravating factors considered – Need for personal and general punitive and deterrent sentence – Head sentence of 9 years less period in pre-trial custody –Plea – first offence – Youthful offender – Aggravating factors – Criminal Code Act Ch. 2626 (as amended)s 347; Criminal Justice (Sentences)Act 1986 s 3.

Cases Cited

The State v Goli Golu [1979] PNGLR 653
John Aubuku v The State [1987] PNGLR 267
The State v Kaudik (1987) PNGLR 201
The State v Kenneth Penias [1994] PNGLR 48
The State v Martin Mausen CR 596 of 2004 (Unnumbered, unreported)
The State v Henry Nandiro (No. 2) (2004) N2668
The State v Ilam Peter (2006) N3090
The State v James Yali (2006) N2989
The State v Joe Moore (2010) N3980
The State v Jerry Kui (2011) N4367

Counsel

M. Ruarri, for the State
H. Wohuinangu, for the Prisoner

SENTENCE
26th November, 2012

1. TOLIKEN, AJ: Karo Tumai, on 9th August 2012, you pleaded guilty before me on the charge that on 14th day of December 2005 at Kokoda, Oro Province, you sexually penetrated one Liley Thomas without her consent, an offence under Section 349 of the Criminal Code Ch. 262. This is the offence commonly known as rape.
   
2. I was satisfied after reading the committal depositions that the evidence supported your plea, confirmed your plea and convicted you. I wasn't able to pass sentence then so I do so now.
   
3. The brief facts against you are as follows. Between the hours of 9.00 – 10.00 a.m. on the 14th of December 2005, you were at Kokoda, Oro Province. At that time, you were seen following the victim and three other women to their gardens. The three women went on to their garden while the victim took a short rest on the side of the track. You came up from the back and attacked the victim. She got up and ran but couldn't run fast enough as she was wearing a long skirt. You pulled her by her shoulder and she fell to the ground. While she was on the ground, you forcefully removed her skirt and pants. You then removed your trousers and with your fully erected penis, you sexually penetrated her without her consent. You were later apprehended by the police and charged for this offence.
   

ANTECEDENTS

4. At the time you committed the offence, you were 18 years old. Your parents are originally from Sopu Village, Tapini in the Central Province but you were born at Goi Camp in Kokoda where you have lived all your life. You are married with one (1) child. You are a first time offender.
   

ALLOCUTUS

5. When you addressed the Court, you apologized to the victim and her family. You also apologized to your family for bringing shame to the family name.
   

SUBMISSIONS ON SENTENCE

Defense Counsel

6. Mrs. Wohuinangu submitted on your behalf that this is not the worst type of rape. She said that your offence is mitigated by the following factors – you pleaded guilty to the charge, are a first time offender, you showed genuine remorse to the victim and her family, you acted alone and this was a one-off incident. Furthermore, you saved the victim emotional stress by your plea in that she was not required to testify on trial and that you did not pass a sexually transmitted infection or impregnate her. Finally, there was no permanent injury to the victim. Your lawyer, however, conceded that this was not a consensual act of intercourse - you were armed with an axe and though you didn't use it, nonetheless, you used force. There was also no compensation to the victim.
   
7. Your lawyer referred me to a couple of cases. Firstly, the case of The State v Martin Mausen CR 596 of 2004 (Unnumbered, unreported). The prisoner there was sentenced by His Honour Cannings J. to 10 years imprisonment after a trial. The prisoner, a young man had demanded to have sex with the victim – an adult who was alone in her garden. She refused and the prisoner threatened her, forced her to the ground and had sex with her without her consent.
   
8. In The State v Henry Nandiro (No. 2) (2004) N2668, the prisoner, an adult was convicted for the armed gang-rape of a 14 year old girl whom he and his friends had abducted earlier on. He and another member of the group forcefully raped the victim, handling her roughly resulting in the victim bleeding continuously for more than a day after the incident. His Honour Kandakasi J. sentenced the prisoner to 20 years imprisonment.
   
9. Your lawyer said that when compared with these two cases, your offence should not attract the maximum penalty of 15 years. She said that an appropriate sentence for you should be 10 years, less 5 months and 2 weeks, the period you have been in custody awaiting trial.
   

The State

10. Mr Ruarri for the State on the other hand submitted that the maximum penalty for this offence is 15 years. He reminded the Court though that the maximum penalty is reserved for the worst of offence. Counsel suggested that the sentencing guidelines in John Aubuku v The State [1987] PNGLR 267 are out-dated but said nothing further on the point. He then referred the Court to The State v James Yali (2006) N2989 where the prisoner was found guilty after trial for raping his sister-in-law. His Honour Cannings J. viewed that the prisoner's aggravating factors out-weighed his mitigating factors and sentenced him to 12 years imprisonment.
    
11. Finally, Counsel referred me to The State v Ilam Peter (2006) N3090. There the prisoner after initially denying the charges of sexual touching (S.349(1)(a) CCA) and aggravated rape (S.347(1)(2) (CC) changed his plea to guilty after the victim (his daughter) had given evidence. He was sentenced to 14 years in hard labour.
    
12. Counsel also submitted that the offence of rape is prevalent and in this particular case, violence was used hence an appropriate sentence should be imposed.
    

THE LAW

13. Section 347 of the Criminal Code Act (as amended to date), provides for the offence of rape on the following terms:-
    

"347. Definition of Rape

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

Penalty: Subject to Sub-section (2), imprisonment for 15 years.

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

14. Rape is a serious violation of a person's privacy and dignity. Survivors of rape are often scarred physically and/or psychologically for life, more so when this uninvited intrusion is committed under circumstances of aggravation. The gravity of this degrading act and the abhorrence with which society views it is reflected by the penalties S.347 provides.
    
15. Rape was, prior to amendments to the Code, an offence against women only. This is no longer the case. The offence is now gender-neutral, the law recognizing that men can also be sexually penetrated against their will. Regardless of that, what Amet J. (as he then was) said in The State v Kaudik (1987) PNGLR 201 at 205 still reins with a lot of truth, (perhaps more so now then ever before), regardless of the victim's gender. His Honour said:
    

"Rape is generally regarded as the most grave of sexual offences. In a paper ..... by the Policy Advising Committee on Sexual Offences, the reasons for this are set out as follows:-

"Rape involves a severe degree of emotional and psychological trauma, it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the [Survivor] continuing insecurity, the fear of venereal decease or pregnancy."

16. On rape penetrated against women, Injia, J (as he then was), said in The State v Kenneth Penias [1994] PNGLR 48 at 51.
    

"Rape constitutes an invasion of privacy of a women's body. Women become subjects of sex, and sex alone to men..., who prey upon them and rape them. But women are ...human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated...At times, because of their gender, with which comes insecurity, they need the protection of men... Our women in the small communities, in the villages and in small towns and centers, who once enjoyed freedom and tranquility, are living under fear and feel restricted..."

17. The above are but a couple of lines from what the National Court and the Supreme Court had said on numerous occasions about the effect of rape on our women and girls.
    
18. The Supreme Court back in 1987 recognized the need to protect our women folk – the weaker gender – from this form of degradation and invasion to their privacy and dignity as human beings. In the much celebrated case of John Aubuku v The State (supra), the Court said that severe punitive sentences should be visited upon persons who commit rape. The Court laid down sentencing guidelines, which, unfortunately a decade later were seen as no longer appropriate given the fact that despite the strong sentences that were advocated by the Court in that case, the offence had anything but continued unabated and in fact with increasing and alarming prevalence.
    
19. The Supreme Court in Aubuku v The State (supra) had this to say about the effects of rape on women:
    

"We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence...the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated violence or force. There is the physical and psychological trauma. The woman feels violated and degraded. There are continuing feelings of insecurity, painful memories, and the fear of venereal disease and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim. Furthermore, rape involves the abuse of an act which, in its right context, is a beautiful expression of love."

20. And to this must be added the distress that the rape survivor must go through when recalling the violation and indignity she was subjected to if the matter goes to trial.
    
21. The Court then set sentencing guidelines for rape cases. Viewing that rape is a serious matter that must attract immediate incarceration the Court laid down four broad categories of circumstances or features and the relevant starting points. These are:
    

29. Where there exists one or more aggravating factor which include among others, undue violence, use of weapons, pre-planning, repeated rape prior grave sexual offence convictions etc. then a substantially higher sentence ought to be imposed.
    
30. Mitigating factors to be taken into account include guilty plea, age of accused and degree of involvement where rape was planned.
    
31. The fact that the survivor may have exposed herself or acted imprudently or her previous sexual experiences are irrelevant factors.
    

SENTENCING TREND

32. Let me review some of the sentences that this court had imposed on those cases that were cited to me by Counsel and a couple of others.
    

YOUR OFFENCE

33. In considering what an appropriate sentence for you will be, I take into account the following. First, the factors in your favour.
    
    • You were a youth when you committed the offence – 18 years old only at that time.
    • You pleaded guilty to the charge thus saving time and money for the State and you saved the victim from having to re-live her trauma by not giving evidence on trial.
      
    • You are a first time offender.
    • You didn't infect the victim/survivor with a sexually transmitted Infection (STI) or Aids.
    • You didn't use undue force than was necessary to subdue your victim.
    • You didn't inflict or cause physical injury to the victim.
    • You were alone and this was a one-off incident.
      
34. But then there are the factors that aggravated your offence. These are:-
    
    • You were armed with an axe and even though you didn't use it, it would have caused fear on the victim for her safety.
    • The offence of rape is prevalent.
    • You have not made amends with the victim by way of compensation.
      

So what should be an appropriate sentence for you?

APPROPRIATE SENTENCE

35. The maximum sentence for simple rape or as my brother Sawong J. puts it "rape simpliciter" (The State –v- John Moore (supra)) is 15 years imprisonment. Of course, the maximum is always reserved for the worst offences (The State –v- Goli Golu [1979] PNGLR 653).
    
36. Now looking at the peculiar circumstances of your case it is clear that your mitigating factor seems to out-weigh your aggravating factors. Be that as it may, what needs to be emphasized here is that whatever the reason, rape can never and should never be excused nor should those of us who sit in judgment ever try to rationalize this hideous crime against our women and girls. Despite the increasing sentences by this Court, the incidence of rape has not decreased. If anything it continues to rise. And it is not only adults who commit this crime. In fact, there is a good number of juveniles and youthful offenders like you who indulge in the crime.
    
37. Our women and girls need to be protected. They need and in fact have the right to move around freely in our towns, cities and villages. Your victim had the right to move around, to go to her garden without fear of being attacked let alone raped by anyone including you.
    
38. I take into account your mitigating factors – that you are a first time offender and you pleaded guilty to the charge. I take particular consideration of the fact that you were at the time of the offence a youthful offender and that you may have acted impulsively and without good judgment.
    
39. I must, however, weigh this against the need, if not, the necessity to impose a sufficiently deterrent sentence against you personally and to deter other persons who maybe similarly inclined to commit rape. This is so that our women and girls can feel safe so that they can go around with security in their daily chores.
    
40. Hence, in the circumstances, I feel that a starting point of 10 years will not be too excessive or conversely indulgently too lenient. Taking into account your mitigating factors, I shall impose a head sentence of 9 years. From this, I shall within my powers under Section 3 (2) of the Criminal Justice (Sentencing) Act 1986 deduct 6 years, 10 months and 9 days for the period you were in pre-trial custody. You will thereafter serve a period of 2 years, 1 month and 21 days at Biru Corrective Institution. None of this will be suspended.
    

Orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused