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State v Gura (No.2) [2016] PGNC 16; N6193 (15 February 2016)

N6193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 499 OF 2014

THE STATE

-V-

LUI GURA
(N0.2)

Kokopo: Lenalia, J
2015: 9th & 11th, 22nd & 23rd December
2016: 12th & 15th February

CRIMINAL LAW – Rape – Sentence after a guilty finding – Rape aggravated by restrain and threatened use of force against the victim – Criminal Code (Sexual Offences and Crimes Against Children) Act s.347 (2) Ch. No. 262.

CRIMINAL LAW – Rape – Sentencing principles and guidelines – Aggravated rape – Use of offensive weapon namely bush-knife to threaten the victim before raping her – Victim at age 13 years old – Big age deference.

CRIMINAL LAW – Crime of rape has always been serious – Immediate punitive custodial penalty applicable.

Cases cited

The State v Dii Gideon (2002) N2335
The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi & Isaac Sip (No 2) (2004) N2543,
The State v Flotime Sina (No.2) (2004) N2541
John Aubuku-v-The State [1987] PNGLR 267
The State v Junior Apen Sibu (No.2) (2004) N2567
Lawrence Indemba v The State (1998) SC 593
The State v Ludwig Jokar (No.2) (24.4.2008) N3362
Maima-v-Sma [1972] PNGLR 49
The State v Pais Steven Sau (2004) N2588
The State v Peter Ilam (2006) N3090

Counsel

Mr. L. Rangan, for State
Mr. P. Laluwin, for Accused

15th February, 2016

1. LENALIA, J: On 23rd December last year, the prisoner was found guilty and convicted on a charge of aggravated rape contrary to s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Circumstances of aggravations are pleaded in the indictment pursuant to s.538 of the Criminal Code.

2. The brief evidence on which the accused was found guilty is that, on 26th March 2013 at Nonga Ward Balanataman LLG, Rabaul District, the accused raped the victim Iriese Matalau without her consent at her father's kitchen. The victim's mother and grandmother came and forcefully pushed the accused away from the door of the house where he raped the victim and when they entered into the kitchen, they found the victim and took her away to the police station where they reported the matter and the accused was arrested.

3. Rape is defined by s.347 (1) (2) in the following terms:

"(1) A person who sexually penetrates a person without his consent is Guity of a crime on 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."

4. When the prisoner was asked to say his final say in allocutus, the prisoner said, he had been found guilty of an offence that he did not commit. There was no expression of remorse by the prisoner.

5. Mr. Kaluwin asked the court to consider the fact that the prisoner is a young man, he has no prior convictions, that his client was found guilty and that the court should consider a lenient sentence as the case was not a worse type case. Counsel submitted there may have been elements of consensual sex.

6. Mr. Rangan made submission on the charge of rape where it is aggravated by circumstances of aggravations such as the age difference is quite big. He asked the Court to consider the aggravating circumstances such as the prisoner was found guilty of the crime where he contained the victim in his house and raped her. Counsel asked the court to consider the fact that the victim and her mother do not want to be paid any compensation as they want the law to take its cause.

Pre-Sentence &Means Assessment Reports

7. The court has read the pre-sentence and means assessment reports. I take note of comments by the elder sister of the prisoner's wife and that of the offender's wife. Both raised concern that after the incident, due to their concern, they have tried to organize reconciliation but the relatives and parents of the victim did not agree and because those of the victim wanted to come to settle in court so they left it there. In case of the elder sister Martina Gura, blamed the wife of the offender because she had stayed away from the prisoner for some time and as the result the prisoner could have been tempted to do what he is alleged to have done to the victim. She offered K1, 000.00 cash and 20 fathom Tolai shell money for compensation. The prisoner himself offered K3, 000.00 and 200 fathom Tolai shell money.

8. The offender's wife was also contacted. She expressed to the author that she was shocked to hear the news of the prisoner committing the offence. She expressed sadness because her husband will leave her and their young child while in custody. She accepted responsibility because; she had been away from the matrimonial home for some time.

Application of Law

9. The offence of rape carries the maximum penalty of rape in 15 years. Where the offence is committed with circumstances of aggravations like force, threats or application of offensive weapons pursuant to Sub-Section (2), the maximum penalty is life imprisonment.

10. The offence of rape and other sexual crimes are so common. Although the Courts have been imposing sentences reflecting the seriousness of the crime of rape whether simplicitor and those with aggravations, this has not had any effect on the desired purpose of deterring offenders. The Courts continue to hear these cases, nationwide.

11. This means that the women and young girls and even children of this country, are so vulnerable and are at the mercy of those who call themselves their protectors. So the Courts must continue to impose sentences that will justify the pain, suffering and psychological damage the infant child or teenager suffered, is suffering and will continue to suffer.

12. It is so obvious, with this type of offences, whatever term of years are imposed by the Courts upon any offenders cannot be measured against the pain, suffering and trauma, both psychological and physical, that as was on the instant case, the victim of this case has suffered and will continue to suffer and endure until she is old. Sexual abuse whether by rape or other sexual offences under the Amended Criminal Code is so prevalent indeed.

13. The Supreme Court said in the cases of John Aubuku-v-The State [1987] PNGLR 267 and Lawrence Hindemba-v-The State (1998) SC 593 that, the crime of rape involves violent and so is so prevalent that, immediate punitive sentences must be considered.
14. To illustrate the sentencing trends for rape cases in the National Court, in The State v Ludwick Jokar (N0.2) (24.4.08) N3362 a case in Wewak where the accused was charged with two counts of aggravated rape. The cases went through a trial and he was found guilty. He was imprisoned to 12 years cumulative sentences. In The State v Ilam Peter (2006) N3090, the prisoner was sentenced to 14 years for a charge of rape and other sexual crimes.

15. In The State v Pais Steven Sau (2004) N2588, a case of rape, on a plea of guilty, the prisoner was sentenced to 15 years. In The State v Flotime Sina (No.2) (2004) N2541, the prisoner was sentenced to the maximum of 15 years. In the case of The State v Junior Apen Sibu (No.2) (2004) N2567 Kandakasi J, imposed sentence of 13 years imprisonment on a 16 year old man who raped a 10 year old victim relative. The aggravating factors in that case were the age factor and the fact that the victim was a relative of the prisoner.

16. In cases of aggravations like that of The State v Dii Gideon (2002) N2335, Justice Injia (as he then was) imposed a sentence of 25 years for a pack rape by three (3) men on a three months pregnant overseas visitor with threats of violence and use of weapons after a home invasion and robbery.

17. In another aggravated rape case of The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi & Isaac Sip (No 2) (2004) N2543, the court imposed sentences of 18, 20, 22 & 25 years were imposed for a gang rape by 10 men. They were sentenced according to the degree of violence and participation of the crime they committed. They were armed and the victim was forcibly abducted. There were several acts of rape.

18. The victim of the instant case was at the age of 13years. Rights of young women cannot be continually abused because men like the prisoner cannot respect them. They are entitled to the fundamental rights guaranteed by PNG Constitution such as the right to freedom, right to life, freedom from inhuman treatment and to the right of protection of the law and liberty of all persons. (See sections 32, 35, 36 and 37 & 42 of the Constitution).

19. In your case the Court considers the principles in cases such as Maima-v-Sma [1972] PNGLR 49 and others stand for the principle that the maximum penalty ought to be reserve for the worse case of a particular crime.

20. On the instant case, I am of the view that, the Court should not impose the maximum penalty of life imprisonment but instead, it should impose a term of years. May the sentence of this Court sound a clear warning to similar offenders who harass their women folks and children of tender age and consider them or treat them as sexual slaves or objects.

21. To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and then next the court should consider the circumstances of the particular case in line with the current sentencing trends by other Judges of this Court for similar type offences.

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. I have considered the prisoner's statement on allocutus in which he still did the second denial that he did not commit the offence. I have also considered the fact that there was force applied to threaten the victim with a bush knife if she called out or shouted before the crime was committed. I consider all addresses by counsels on mitigations and aggravations.

24. I have also considered the comments in the pre-sentence report by the victim and her mother. In all the circumstances of the case because the crime was committed with violence and threats to do harm to her if she called out.

25. I consider that the case was not the worst type case and I am of the view that, prisoner be sentenced to a term of years that will show the society's revulsion and concern against this type of violation of the females right to the protection of law. Women and girls are entitled to the same Constitutional rights as guaranteed by the law of this nation.

26. After having considered all the mitigations submitted in favour of the prisoner and the aggravations as put by the prosecuting counsel, I consider that the sentence imposed should serve as a warning to other people who would be likely offender. You said nothing in allocutus instead you said, you were found guilty of the offence you did not commit. You did not explain why the victim and her mother could have accused you for nothing.

27. The court sentences you to a term of 15 years imprisonment. The court suspends 3 years from the head sentence on condition that after you have served 12 years, you shall keep the peace for 2 years. The pre-trial custody period shall be deducted and he shall serve the remaining balance.

28. Let the court mention something here. The fact that no compensation has been ordered by the Court does not mean that the persons affected by this offence cannot pay anything. It is up to those persons affected by this crime to decide on the issue of compensation. There are appropriate cases where compensation may be ordered. On the instant case, the court considers that, because the victim's house is next door to that of the prisoner's parents let them settle by considering an appropriate compensation.
______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused