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State v Andolu (No. 3) [2013] PGNC 355; N5129 (21 March 2013)

N5129

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1007 OF 2010

THE STATE

V

ROBIN ANDOLU

Wewak: Kirriwom, J
2012: 22 & 23 November,
10 December
2013: 20 & 21 March

(No. 3)

CRIMINAL LAW – Sentence – Rape – Pack rape – Excessive violence – Use of weapons to gain entry into residence – Perverted sexual acts – Penile penetration of vagina and anus – Insertion of fingers inside vagina – No remorse – Sixteen years imprisonment.

Cases cited:

The State v Peter Kaudik [1987] PNGLR 20
The State v Michael Amuna Koupa [1987] PNGLR 208
The State v John Aubuku [1987] Unnumbered and unreported
The State v Thomas Waim [1995] PNGLR 185
The State v Kevin Mariano [2000] PNGLR 240
The State v Alphonse Apou Diono [2003] N2431
The State v William Kapris Nauna [1997] N1659
The State v Ndrakum Pu-Uh [2005] N2949
The State v Lawrie Patrick and 3 Ors [1995] PNGLR 195
The State v James Yali [2005] N2988
The State v Apolo Kesu [2006] Cr. 685 of 2004 (June 2006)
The State v Francis Kavun and Robin Andolu [2013] Cr.1041 & 1007 of 2010
John Aubuku v The State [1987] PNGLR 267

Counsel:

C. Sambua, for the State
J. Malambaul, for the Accused

REASONS FOR SENTENCE

21st March, 2013

1. KIRRIWOM, J.: Robin Andolu of Kandinge village of Wosera-Gawi LLG was found guilty of rape after a trial and convicted. He raised a defence of alibi and said that at the material time of the offence which was between 5 and 6 o'clock in the morning of 23 June 2010, he was not in Makun Settlement where this incident occurred, he was sound asleep at Boram Bridge Settlement, having gone there previous evening to play cards at Boram beach in the company of Wesley Kakandi. The court found on the overwhelming evidence of the victim, Susan Misha, that Robin Andolu was an active perpetrator in this gang-rape upon her and it was not possible that he could have been in two places at the same time and being two different persons, one sleeping at Boram Bridge Settlement and the other actively and physically involved in sexually molesting the victim in her own house at Makun Settlement. The alibi story was found to be quite weak and had too many holes in it.
   
2. According to the story, the principal player/instigator in this rape was Francis Kavun who pleaded guilty some months ago and was sentenced to 10 years by His Honour Geita, AJ on 15 March, 2013. A week or so preceding this rape, a relative of the victim was accused or alleged to have committed adultery with Francis Kavun's wife. The incident was not reported to the police but compensation demand was made of the man and given time within which to meet that demand. Time given was running out and no sign of such reconciliatory move was forthcoming so the prisoner, led by Francis Kavun and other close family members decided to even the score by taking the law into their own hands.
   
3. In the early hours of the morning of 23rd June, 2010, between 5am and 6am went to the victim's house forcefully gained entry into the house while armed with one meter long bush knife and a home-made shot-gun after threatening and demanding her to open the door. An in-law who stayed with her, in fear of being harmed opened the door and the prisoner and others namely Francis Kavun, Justin Kavun, Pitts Mali and Alison Mali rushed inside the house and converged upon the victim, violently and physically manhandling her as they removed her shorts down and Justin Kavun was the first to sexually penetrate the victim's anus from behind with his penis. She was then forced onto the floor and held down when Francis Kavun sat on her chest and wanted to insert his penis into her mouth which she resisted and he blocked and squeezed her nose to suffocate her from breathing. Meanwhile, the prisoner Robin Andolu and Alesan Mali penetrated her vagina with their fingers.
   
4. She was then thrown down to the ground from the house where Francis Kavun dragged her into the bushes near the house. Pitts Mali cut her ear with a knife as she was being dragged. In the bushes Francis Kavun sexually penetrated her by which time she had been weakened by the amount of physical trauma exerted upon her by the men inside the house and being thrown to the ground. She could no longer put up anymore resistance as Francis Kavun avenged his wife's adultery with the victim's young brother and reminding her of why he was doing this to her. By the time Francis Kavun was finished with her she was physically traumatised and done, naked as her shorts had been removed and it was already daylight and she had nothing on her. Francis Kavun had some decency enough to lend her his shorts to wear and he helped her by physically supporting her to walk to an aunt's place some distance away, where he left her on the lawn and decamped. There she was found by the aunt's child who alerted her mother and they sought medical attention that morning.
   
5. Medical Report compiled by Dr G Naboam SMO (O & G) of Boram Hospital where the victim was examined confirmed that she was presented with distressed condition, blood stained t-shirt on left shoulder where her left ear cartilage was cut out which was treated at the A&E. The vulva had some grass on the left labia minor and the perineum was moist. Vaginal vault contained whitish, viscous fluid in the posterior fornix although no lacerations or tears found in the vulva. The doctor's conclusion was that she was sexually attacked.
   
6. Under the amended Criminal Code, penalty for rape under section 347 has two types. For what is sometimes referred to as rape simpliciter, a maximum term of imprisonment is 12 years, whereas a more serious case of rape with attendant aggravating features carries a maximum term of life imprisonment. This particular rape was committed with circumstances of aggravation so the maximum penalty is life imprisonment. But whether the prisoner gets the maximum sentence depends on the seriousness of this case. Is this a worst case of rape? The law is quite clear. The maximum punishment must be reserved for the worst case. Is this a worst case of rape or pack-rape?
   
7. In my view, there have been worst cases of pack-rape than this, cases like The State v Peter Kaudik [1987] PNGLR 201, The State v Michael Amuna Koupa [1987] PNGLR 208. The State v John Aubuku [1987] Unnumbered and unreported, The State v Thomas Waim [1995] PNGLR 185 and the list goes on. If similar cases as these were committed these days, they would be looking at nothing less than 25 years imprisonment.
   
8. Sentences for pack-rapes or gang-rapes range from 14 years to 25 years irrespective of what the plea is. In the case of The State v Kevin Mariano [2000] PNGLR 240 the prisoner who was a member of a group of persons who raped the victim, a married woman who was grabbed outside her gate as she left for work early in the morning and pack-raped was sentenced to 20 years for rape and 5 years for abduction. Both sentences ordered to be served concurrently. And in The State v Alphonse Apou Diono [2003] N2431 where 10 men broke into the victim's parents house and after assaulting and threatening her father with bush knives and guns, abducted the victim to a secluded place where they took turns raping the victim, a 15 year old girl. She suffered severe genital and bodily injuries. He was sentenced to sixteen years with hard labour. In the case of The State v William Kapris Nauna [1997] N1659 the prisoner and several other men armed with guns and bush knieves abducted the victim and took her to various locations around Kimbe where each took turns in raping her vaginally and anally as well as performed perversive sexual acts and indignities on her throughout the night before releasing her. She was three months pregnant. He was sentenced to 14 and 15 years concurrent sentences on two counts of rape. The only pack-rape case that attracted sentence below this range was The State v Lawrie Patrick and 3 Ors [1995] PNGLR 195 where Sevua J imposed 12 years on the prisoners who were serving members of the Defence Force Lombrum Naval Base as they only assisted the principal in the commission of rape upon the victim in the confines of the Naval Base by holding her down while their comrade raped her. There were no physical injuries other than forced invasion of her sexually. They were found guilty as aiders and abettors under section 7 of the Code. The Court sentenced them to 12 years imprisonment.
   
9. In trying to reflect this serious view of the crime of rape with aggravating circumstances not only involving more than one offenders/attackers against the victim, but also other factors like the use of dangerous weapons to induce submission and degree of relationship between the victim and the offender, Cannings, J imposed 12 years, near maximum sentence of the prisoner James Yali, then the serving Governor of Madang Province who forcefully had sex with his de facto's little sister in his office while holding an important national office and desecrating the office of the Governor of Madang, see The State v James Yali [2005] N2988. This was a non-violent but forceful sexual penetration that the prisoner was able to achieve without use of extreme violence, or dangerous weapons and he was acting alone. There was use of finger as well as penile penetration. It needed no more force or violence than his brute masculine strength to over-power the weak and defenceless victim for the prisoner to have his way with her. To show the community's revulsion and repulsion of such behaviour by men over the weaker sex, he was given 12 years.
   
10. This case is far more grave and serious than James Yali with all the hallmarks of aggravated gang-rape involving extreme violence, injury inflicted, repeated bizarre and perverted sexual acts committed upon the victim by five men within a short span of time.
    
11. In The State v Apolo Kesu [2006] Cr. 685 of 2004 (June 2006) the prisoner was sentenced to a total of 24 years in prison on four counts of rape simpliciter of his step-daughter in their family home. The victim was only 10 years old when the prisoner started his tirade of sexual assaults on the victim after she returned home from school and while the mother was at work. She was threatened not to tell her mother or he would kill both her and her mother and dump their bodies in the sugar cane field and no one would discover them. This went on for several months almost a year until the victim's break came when she went with her mother to the mother's village for holiday that she confided to her maternal aunt and revealed all the horrible and terrible things happening to her in their family home in Ramu. Medical examination revealed that the victim had been sexually violated over a period of time.
    
12. Again this is a case of non-violent but forced submission of child by a parent who ultimately was sentenced to a long term of imprisonment as it was a case of serious breach of trust.
    
13. In this case the victim suffered indignities performed on her as she was physically manhandled inside her house and her trousers forced off her and one of them was already inserting his penis into her anus. She is forced onto the floor and Francis Kavun sits on her chest and forces her to suck his penis while the prisoner and one other are inserting their fingers into her vagina. Then she is thrown down to the ground where despite being seriously hurt, she is dragged like a wounded animal into the bushes nearby while one of them sliced her left earlobe off with a knife. Inside the bushes she is raped again by Francis Kavun who gives her his short for her to cover herself before she was helped to a place of safety.
    
14. Fortunately for the victim this was just a one-off incident and did not last long, maybe saved by the fast-approaching dawn-break. It could have been worst for her if it was in the middle of the night.
    
15. Pack-rapes are not acts of decent men but those of sick animals and depraved and mentally disturbed persons who cannot reason right from wrong. They are becoming far too prevalent in our cities, towns and villages and no one is safe. Women and girls live in fear all the time and as if they are in captivity, they find refuge and protection behind heavy fences and walls. They can no longer roam freely to the next street or to the nearby market because at every corner of the city town or village, there is always danger lurking waiting for opportunity to pounce on them.
    
16. This woman was innocent; she caused no harm to these men, let alone Francis Kavun. She did not deserve to be assaulted, tortured, traumatised and sexually molested in this way just because a relative of hers committed adultery with their wife, in-law or sister. That affair may have been consensual between two consenting adults which did not call for any criminal attack on anyone to satisfy the husband's hurt ego and feelings. That matter should have been referred to the police and let them deal with it.
    
17. The prisoner is a mature man in his thirties, married with one child. Both his parents are alive in the village at Kandinge. Prior to this offence he lived at Makun Settlement, Wewak. He has never been in trouble before and is a first offender.
    
18. He gave no statement when allocatus was administered on him; he preferred his lawyer to speak on his behalf. There was no expression of remorse but his lawyer submitted that some compensation in cash amount of K3000 was paid to the victim.
    
19. The aggravating factors are use of dangerous weapons a bush knife and a home-made shot-gun, she was physically assaulted and left earlobe cut and bled from that cut, pack-raped through her anus, mouth and vagina with penis and fingers. She was totally demoralised and treated less than a human being with the way they physically manhandled and traumatised her both inside and outside the house. She endured pain and humiliation in the hands of these perverts. She is going to live with this psychological damage for the rest of her life while the prisoner goes to jail, comes out and enjoy life once more.
    
20. I have considered whether it would be appropriate to seek guidance to sentencing in this case with cases where rape was committed with use of fingers to penetrate the victim's vagina as opposed to penile penetration. Counsel cited several cases including The State v Francis Kavun and Robin Andolu [2013] Cr.1041 & 1007 of 2010 unnumbered and unreported judgment delivered 14th March, 2013 but I do not find much help from them as far as sentencing in pack-rapes are concerned. In my view, nothing can be more degrading, painful and hurtful than inserting objects other than penis into a woman's vagina or a person's anus because far more damage or injuries can be inflicted internally by use of objects like fingers, even foreign objects such as sticks, bottles, pebbles, etc if such were inserted in a woman's vagina or a person's anus. In my view therefore, an effective deterrence against this type of behaviour can only be punished by a strong punitive custodial sentence much higher than rape committed by penile penetration. A finger or fingers used in anger or inserted forcefully and angrily into a woman's vagina can cause permanent damage to the uterus depending on the violence and force applied.
    
21. Therefore it would be a misconception for one to argue that as this rape was only insertion of finger and therefore technically, not a rape case that deserved to be severely punished. I take exception to this view whilst noting the comments made by Lay, J in The State v Ndrakum Pu-Uh [2005] N2949 (24/11/05) which would not, with respect, truly reflect, the minds and views of the Legislature when this amendment was introduced and passed. Those who amended the law to extend the definition of sexual penetration to include insertion of finger or other objects or implements other than penis were guided by increasing incidences of such violence and abhorrent behaviour by men upon women and girls. So this act of rape was purposely introduced with reason and cannot be down-played for purposes of sentencing.
    
22. I was advised that the co-offender Francis Kavun was sentenced to 10 years by Geita, AJ. And in the light of those cases he cited to me, Mr Malambaul submits that I impose a sentence within the range of 5 to 8 years. To accede to that submission, it is to me an open invitation or licence to men with similar inclination who can go on gang-raping women using extreme violence and brute force, engage in perverted sexual acts and indignities on their victims and they can walk away with very light sentences of 5 or 8 years. It makes a mockery of the sentencing objectives in particular that of deterrence, both general and personal and retribution to show the society's revulsion and abhorrence of such animalistic behaviour. It disregards the sentencing guidelines set out in John Aubuku v The State [1987] PNGLR 267 which reflects the society's feelings of utter disgust and contempt on this type of crime of violence. And it fails to grasp the message under-pinning the 2002 amendments to the criminal law which created different penalty regimes for different categories of sexual offences against women and children. Certainly the amendments provided no reprieve for violent sex crimes involving gang-rapes of innocent women going about their own business.
    
23. This case is by no means an ordinary run on the mill type of rape or pack-rape with no violence such as in The State v Patrick Lawrie & 3 ors (supra). It is revolting and repulsive to people of common decency to see some members of their own race behaving in such manner against the weaker sex of the same race. It is repugnant to humanity and must be condemned at the highest level never to be tolerated in any decent society where peace-loving people live.
    
24. All these factors far outweigh any factor there may be in mitigation. I place no weight on the compensation of K3000 if it did not come from the prisoner as his share of seeking redemption from the victim. There were five of them, and it could have been paid for all of them which is no solace for the suffering that the victim went through. There was no remorse expressed so this compensation makes no significant impact on their wrong doing as it is not done with sincerity. And this is again reflected in the prisoner's plea of not guilty which forced the victim to come to court and re-live the dreadful and painful experience of that early morning terror she was subjected to by the prisoner and his cohorts. His prior good record again fades into insignificance in such a dreadful case like this.
    
25. On the facts of this case, I find no comfort in parting company with the disparity rule in the sentence imposed on the co-offender as in the ordinary circumstances in a gang-rape case like this; I would impose 20 years or thereabouts. But in attempting to maintain some parity between the co-offender's sentence and that of the prisoner and at the same time conforming to the general sentencing pattern or trend of gradual increase in sentencing of violent crimes and offenders, I sentence the prisoner to 16 years imprisonment. I deduct pre-trial custody period of seven months, which now leaves him with 15 years and 5 months.
    

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence