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State v Mathew [2019] PGNC 418; N8100 (14 October 2019)

N8100

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1092 OF 2019

THE STATE

-v-

BENNY MATHEW

Kiunga: Koeget, J
2019: 11^th, 14^th October

CRIMINAL LAW- Indictable offence – rape pursuant to section 347 (1)(2) of the Criminal Code Act – convicted on guilty plea – Exercise of Court’s discretionary powers under section 19 of the Code.

FACT

On 18^th December 2018, between 9 o’clock and 10 o’clock at night it rained heavily and the accused and others drank alcohol at his family residence. The victim, a close neighbour was present where accused and others drank alcohol.

A person named Starlon Soka chased the victim out of the accused’s family house on to the road and as she ran out, she was closely followed by the accused. Both chased the victim along the road and Starlon Soka desist and returned to the house but the accused continued to chase her towards the dark patch of the road where lots of shrubs grow along the side of the road. The accused caught up with the victim and pulled her down to the ground and removed her shorts and pants. So she was naked waist down but she still had a green round neck “T” shirt covering the body from waist up to the shoulders.
The accused forced the victim to lay on her back, face up and he laid on top of her. He inserted his penis into her vagina and had sex with the victim when her older sister arrived at the scene and caught him in the act of lying on top of the victim.

It is alleged that the victim did not consent to the act of sexual intercourse with the accused that night. The State alleged that the victim was virgin as she was twelve (12) years, eleven (11) months, 2 weeks and four (4) days old.

Cases Cited:

The State –v- Baila James (2019) N7898
The State –v- Peter Marase (2017) N7201
The State –v- Hurai Sefere (2016) N6489
The State –v- Martin Evere & 3 Ors (2016) N6720
The State –v- Moksy Mora Meahu (2016) N6407

Counsel:

D. Mark, for the State
J. Kolowe, for the Accused

14^th October, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Rape pursuant to section 347(1)(2) of the Criminal Code Act chapter 262 (as amended).

ISSUE

2. The accused pleaded guilty to the charge and was convicted accordingly. The issue is what is the appropriate sentence the court should impose upon the prisoner.

LAW

“Section 347 – Definition of Rape.

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

is guilty of a crime of rape.

(2) Where an offence under subsection (f) is committed in circumstances of aggravation, the accused is liable, subject to section 19, to imprisonment for life.”

PERSONAL PARTICULARS

3. The prisoner is 18 years old and is a bachelor. He is a first time youth offender and attends Kiunga Primary school and was in grade 8 in 2018. He resides at Sare Corner, a settlement on the outskirts of Kiunga town.

AGGRAVATING FACTORS

4. This is an alcohol related offence. The prisoner was drunk when he committed the offence. Such offence is prevalent in the country and the victim, a virgin was aged under thirteen (13) years.

5. The victim a next door neighbour was chased out of the prisoner’s house on to the dark part of the road and he took advantage of the circumstances and committed the offence upon her.

MITIGATING FACTORS

6. The prisoner pleaded guilty to the charge and saved valuable time of court. He is a first time youthful offender. He has been in custody awaiting disposal of the case for 9 months and 2 weeks. His family paid compensation of K3,000.00 to the victim and relatives and cash was accepted by the victim and the family.

SENTENCE

7. The victim was a virgin as she was just over the age of twelve years and attends primary school in Kiunga. Her family home is next to the prisoner’s family house so on the night of the incident she went to the prisoner’s family house knowing that she will be safe even though the prisoner and others were drinking alcohol that night.

8. The prisoner did not protect the victim but instead preyed on her in the circumstances. There was a betrayal of trust by the prisoner and so the good family relationship is tarnished and shattered.

9. The victim pleaded with the prisoner not to harm her but, such plea fell on deaf ears. So a custodial sentence ought to be imposed upon the prisoner for the offence he committed upon the victim, who was known to him as a neighbour.

10. The prisoner is therefore sentenced to be imprisoned for five years in hard labour. The pre-trial custodial period is deducted and the balance of four years, two months and two weeks are to be served at Ningrum Corrective Institution Services.

Accordingly Ordered.
____________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused