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State v Tongit [2018] PGNC 365; N7476 (24 September 2018)

N7476

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 361 OF 2018

THE STATE

V

LUKE TONGIT

Kimbe: Miviri AJ
2018: 24 August, 24 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Rape s347 (1) (2) CCA– Plea – use of a knife – prosecutrix epileptic person – breach of trust neighbours – taken to secluded area – sexually penetrated – injuries to vagina – saving victim in court – first offender – prevalent offence – deterrent and punitive sentence.

Facts

Prisoner called the victim to him, threatened her with the knife, took her to secluded area where he inserted his penis into her vagina and had sexual intercourse with her. Then he ran away. She reported the matter.

Held

Plea
First time offender
Victim epileptic person
Protection of the law
Strong punitive sentence

Cases Cited:

The State v Alan Peter Utieng (2000) SCRA 15 of 2000
The State –v- Kaudik [1987]PNGLR 201
The State v Aubuku [1987] PGSC 3; [1987] PNGLR 267
The State v Roy Dujambi [2017] PGNC 233; N6895
The State v Meaoa [1996] PNGLR 280
The State v Hindemba [1998] PGSC 48; SC593
The State v Haite [2003] PGNC 108; N2383
The State v Osake [2003] PGNC 121; N2380

Counsel:

A Bray, for the State
E Yavisa, for the Defendant
SENTENCE
24^th September, 2018

1. MIVIRI AJ: This is the Sentence upon the prisoner who pleaded guilty that he on the 11^th December, 2017 at Kaipo Settlement, Kimbe, with a knife in his possession threatened the victim MN with it. Took her into a cocoa coconut block, striped her naked and inserted his penis into her vagina had sexual intercourse with her against her will. He ran away after. She reported thereafter.
   
2. MN is the initial of the victim to protect her identity because of her condition she is a disabled person.
   

Charge

3. The Charge was under Section 347 (1) and (2) of the Criminal Code reading:
   
   • (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.

4. Prisoner pleaded guilty to the charge reading of the court depositions confirmed the plea. Where there are circumstances of aggravation as here a weapon, a small knife is used to perpetrate the crime the maximum sentence is life imprisonment. Where it is a simple rape the maximum is 15 years imprisonment. The prisoner here is looking at a maximum of life imprisonment for the offence.
   

Allocutus

5. When given an opportunity to address the court this is what the prisoner stated: “I am a first time offender and I apologise for what I have done and also to the family of the victim and my own family. My father is deceased and my mother is a sick person. There are three of us in the family and I am also at school and also look after my mother and two small ones. I left my village here to school but got into this trouble. My life is not good since. I ask for mercy of the Court and to put me on probation”
   
6. The plea is genuine not recent because when he was taken into custody and interviewed, he made detailed admission to police which he has followed through here. His apology for the offence is also genuine. The concern for his parent who is sick cannot be basis to mitigate the sentence: Alan Peter Utieng v The State (2000) SCRA 15 of 2000 it should have been at his forefront at the time that he committed the offence. It will not be a mitigation factor. The claim that he is a student in school is not verified either from the school or otherwise. It will not be in his favour.
   
7. Defence Counsel applied for PSR and MAR to confirm the fact as to what the views of the victim and her family were. Matter was therefore adjourned to the 12^th September 2018 to allow for the presentation of both reports to court. Both reports were not ready and so the matter was further adjourned. Both reports are now before the court in the consideration of the sentence against the prisoner. I take due regard of all set out within in the determination of this sentence upon the prisoner.
   
8. What is explicit from these reports is there are no basis illuminated for a sentence other than imprisonment. The school that he is purportedly attending does not prove his attendance as a student there. There is no basis for suspension of sentence on this basis or reformation and rehabilitation which in my view will fold in with. The offence is serious and for a sentence other than imprisonment there ought to be proper material to impose upon not without as here.
   

Aggravation

9. It was a very serious offence he had used a knife to threaten and to take her to a secluded area where he raped her. She was an epileptic person and he took advantage of her condition to commit the offence upon her. They were neighbours living at the same settlement and adjacent to each other. He abused that trust to commit the offence upon her. It was an invasion of her privacy intimately and it was clear that it was her first time and she felt pain. It was also humiliating and clearly violated her.
   
10. The mother Elizabeth Namberi stated that the victim was born on the 12^th September 1992 so at the date of the offence she was 26 years old. She was born with two others and they were triplets. One died, one grew up healthy and victim grew up disabled so she was enrolled at Callan Service Wewak to train her to do exercises that helped her develop. And was placed in school but was slow in learning eventually in Gigo Primary School where she completed grade 8. She cried bitterly when told and wants the law to deal with him severely.
    
11. Medical report dated the 12^th December 2017 examination made same day 11^th December, 2017 when the offence was committed showed:
    

“obvious blood stains at vulva and vagina, a graze tear at fourchette and hymen perforation, some degree of vaginal laxity, fresh bleeding from tears (fourchette & perforated hymen), tender upon palpation, no lacerations at upper vaginal walls. Now according to the history and vaginal examination findings; she was a virgin and sustained forced penile sexual penetration which caused trauma to the fourchette and hymen. That is a prominent rape case.”

It is clear and consistent that this is a case of forced sexual penetration and the medical evidence which is independent confirms this fact. Coupled with the mother’s evidence this is rape of a disabled girl confirmed by the medical report. Viewed with the sketch plan she was taken 225 meters away from her house and taken across a creek into bushes where she was raped.

12. Disabled persons whether mentally, or physically, emotionally either by mobility or sight, hearing, intellect, are as much as an able person entitled to the protection of the law by the Constitution. In the case of a female person as here the law must protect from persons like the prisoner who take advantage to cause irreparable damage as experienced here. Fortunately there are no after effects such as pregnancy or the like. The emotional trauma of the victim and mother cannot be measured and is an unwarranted consequence derived from the actions of the prisoner. Given our level of medical treatment and the like it would not be properly accounted of her suffering. In The State –v- Kaudik [1987]PNGLR 201, Amet J (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences:
    

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact 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 woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value."

13. It is fortunate that the small knife was merely used to threaten and not to injure the victim or any others. The crime of Rape is a very serious invasion of privacy. It involves intimacy only right in consenting adults or persons such as in matrimony. To be committed as depicted here degrades a woman in this case the disabled girl victim to nothing less than an object for sexual gratification by the prisoner. She is vulnerable and her youthfulness and innocence has been exploited by the prisoner for his own sexual gratification.
    
14. In Aubuku v The State [1987] PGSC 3; [1987] PNGLR 267 (29 July 1987) the Supreme Court endeavoured to set out guidelines applicable to assist in the determination appropriation and proportioning of an appropriate sentence in given cases of rape. It is a 31 year old case but the guidelines it sets out are good and practicable and applicable here.
    

“(1) the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances;

(2) for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point;

(3) for rape committed by two or more persons acting together, or by a person who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years;

(4) for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger, a sentence of 15 years or more may be appropriate;

(5) for rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will not be inappropriate;

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point;

(a) violence over and above the force necessary to commit rape;

(b) use of a weapon to frighten or wound the victim;

(c) the rape is repeated;

(d) the rape has been carefully planned;

(e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind;

(f) the victim is subjected to further sexual indignities or perversions;

(g) the victim is either very old or very young;

(h) the effect upon the victim, whether physical or mental.

(7) matters which may be relevant to mitigation include:

(a) a plea of guilty;

(b) the age of the defendant; and

(c) the degree of involvement of the defendant in the planning and carrying into effect of the crime;

but do not include:

(d) the fact that the victim may be considered to have exposed herself to danger by acting imprudently;

and

(e) the previous sexual experience of the victim.”

15. In State v Roy Dujambi [2017] PGNC 233; N6895 (28 June 2017) a sentence of 12 years was imposed upon the Prisoner who committed rape upon the victim a disabled female who could not maintain intelligent conversation and had it not been for the eye witness the conviction would not have been made out. That was a trial here is a guilty plea. But a small knife was used to threaten the victim who was taken away to a secluded area. Victim here also suffered injuries to her vagina.
    
16. In Meaoa v The State [1996] PNGLR 280 (11 August 1995) Appellant swam with the victim after their boat had capsized onto the beach there he threatened to kill her and sexually penetrated her with his co offenders. She was 12 years old. He appealed against his sentence of 14 years which the Supreme Court confirmed dismissing his appeal. Here the victim is a disabled person vulnerable as was this small girl from the mountain region of Gulf Province.
    
17. In Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) Appellant appeal against the 10 years sentence imposed arguing that he had pleaded guilty and that the sentence was excessive. The Supreme Court dismissed his appeal, quashed the sentence and increased it to 15 years IHL. The court reasoned that appellant refused to listen to the sister of the victim who told him to desist. He threatened to rape her as well. He preyed upon her despite the fact that she was accompanied by other fellow students. Victim suffered extensive injuries to her vagina. And the offence was committed in broad day light. Supreme Court considered that the facts warranted increase in the sentence and that was done.
    
18. State v Haite [2003] PGNC 108; N2383 (22 May 2003) Prisoner was serving 2 separate sentences for rape and committed this one upon a 11 year old girl, the Court imposed 20 years IHL. Where the offender is a repeat offender the sentence will be high. Here the offender is a first offender but the offence is upon a disabled girl a neighbour so a serious breach of trust and aggravated by her condition she cannot be likened to an able person. In State v Osake [2003] PGNC 121; N2380 (22 May 2003) 18 years imprisonment was imposed for a rape of a 11 year old girl related to the wife of the prisoner and that they were accommodated in the same house and were in make shift house whilst their house was rebuilt. Prisoner came to where she was sleeping in the course of the night and penetrated her by inserting his penis into her vagina and had sexual intercourse with her. She awoke as a result and suffered serious injuries with bleeding to her vagina.
    
19. This is a similar situation here where she is a neighbour but a disabled person and the prisoner took advantage using a small knife taking her to secluded area where as a result of the act she has sustained injuries to her vagina with bleeding. I consider a strong and deterrent sentence is appropriate given the facts and circumstances.
    
20. I take due consideration with all set out above that the prisoner has pleaded guilty saving the girl from coming to court and testifying. The sentence will reflect that but will not be as high if it was a trial. In all the circumstances, the sentence is 10 years IHL for Rape pursuant to Section 347 of the Code upon the Prisoner. Time in custody is deducted forthwith. The balance will be served in jail.
    
21. Ten (10) years IHL time in custody deducted forthwith. Balance to serve in jail.
    

Orders Accordingly

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