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State v Bellamy [2021] PGNC 73; N8821 (17 May 2021)

N8821

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 487 & 489 OF 2012

THE STATE

V

LOLO BELLAMY & HOBAI HARO
(No. 2)

Waigani: Berrigan, J
2021: 7^th April & 17^th May

CRIMINAL LAW – SENTENCE - Sections 347(1) and (2) of the Criminal Code – Rape in company – “Gang” or “pack” rape – Starting point of 15 years – Conviction following trial - Serious and multiple aggravating factors – Few mitigating factors – Effective sentence of 26 years imposed.

Between 10 and 11 pm on the night of 20 January 2012 a 25 year old woman left her house in Erima, Port Moresby to go and find her brother, when she was struck on the head with a bottle by a man who had earlier been involved in an altercation with her brother. It caused a deep laceration. She walked away. As she came towards Lolo Bellamy’s house, he came out from the gate. He lured her into the yard to attend to her head. Once she was inside the yard he left her briefly before returning with Hobai Haro and Douba Kapina. They dragged her away to a banana garden where they tore off her clothes and held her down. Lolo vaginally raped her with his penis. Hobai Haro raped her vaginally with his fist, and then with his penis. Douba Kapina also raped her vaginally with his penis before she crawled away and alerted a neighbour. The violent nature of the crimes was reflected in the injuries suffered by the victim, including the lacerations to her body generally and deep injuries to her reproductive organs. The offenders were well known to the victim. She had grown up with all of them in Erima. Lolo Bellamy’s relationship was close. He called her “big sister”. There are no great differences between the offender’s personal circumstances.

The offenders were initially convicted following trial with Douba Kapina. Each was sentenced to an effective sentence of 26 years of imprisonment.

The offenders appealed against their convictions, which appeals were upheld, and the matter remitted for retrial by the Supreme Court.

The offenders were each found guilty of four counts of rape following retrial, being the rapes they physically perpetrated themselves, as well as the rapes they aided. Lolo Bellamy was also found guilty of procuring the rapes of Hobai Haro and Douba Kapina.

Held

(1) Rape is the degrading violation of an individual’s liberty, bodily integrity, security, privacy and dignity. Rape is prevalent and the fear it engenders pervasive. It interferes with the rights of all women to equal participation under the Constitution. Rape in the company of others, “gang” or “pack” rape, only exacerbates that fear and further diminishes the fundamental rights and freedoms enjoyed by women.

(2) The starting point for aggravated rape, contrary to s 347(1) and (2) of the Criminal Code, at the time of the offence was 15 years of imprisonment: The State v Yali (2005) N2989 per Cannings J; The State v Tomitom (2008) N3301 per Kandakasi J; and The State v Mongi (2011) N 4364 per Kariko J.

(3) In aggravation, the offences took place in the company of two others, the offenders took advantage of a vulnerable person who was under the influence of alcohol and suffering a visible head injury, excessive force was used to physically restrain the victim, drag her away and tear off her clothes, in the middle of the night, and detain her for some considerable time. The victim was well known to both of the offenders, having grown up with them in the same community. The rapes were violent, causing lacerations to her body generally and long term injuries to her reproductive organs, resulting in, at least, chronic and sometimes acute pain, which restricts her ability to work. It appears she is no longer able to have children. The victim suffers long term emotional and psychological trauma. Stigmatization has caused her to relocate away from her community and family. The offence of rape in company is prevalent and calls for strong personal and general deterrence.

(4) In particular aggravation by Lolo Bellamy: he breached the trust of the victim by using his close relationship with her to lure her into his yard; he procured the others to assist him rape her; and then encouraged them to rape her in turn. He was equally liable for the offences committed by the others.

(5) In particular aggravation by Hobai Haro: the first rape physically perpetrated by him was a particularly vicious rape intended to grossly humiliate the victim and inflict great pain; the second rape physically perpetrated by him was further callous and demeaning.

(6) There are no extenuating circumstances.

(7) The fact that an offensive weapon was not used in this case is not a mitigating factor. Nor is the fact that no grievous bodily harm was inflicted externally. Those matters are relevant considerations in general terms when comparing sentences in other cases which might be more serious for those reasons, but they do not have the effect of reducing the punishment in this case, they are simply not matters in aggravation. Or in other words, it is not a matter in favour of the offenders that should have the effect of reducing their punishment that they did not do worse than they actually did. Furthermore, some permanent physical harm has been established.

(8) In mitigation this is Lolo Bellamy’s first offence. His youth at the time of the offence is of limited weight given the seriousness of the offence, and the need for deterrence, noting that such offences are often committed by young men.

(9) In mitigation this is Hobai Haro’s first offence. His previous good standing in the community is of limited weight given the seriousness of the offence.

(10) Lolo Bellamy is sentenced to 26 years on each count of the indictment. The sentences shall be served concurrently. Time spent in custody is deducted.

(11) Hobai Haro is sentenced to 25 years on Counts 1 and 4, and 26 years on Counts 2 and 3. The sentences shall be served concurrently. Time spent in custody is deducted.

Obiter

Probation Services should refrain from asking victims of crime, in particular crimes of a sexual nature, to recount the circumstances of the crime for the purposes of sentencing. The facts establishing the offence have been established by the Court at trial or on guilty plea. A victim should be asked by prosecuting counsel if he or she wishes to provide a victim impact statement, and if they do, be assisted by officers from the Office of the Public Prosecutor or the RPNGC who have experience in the area and with whom they feel comfortable.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Aubuku v The State [1987] PNGLR 267
Wain v The State (1997) SC519
The State v Yali (2005) N6799
Gimble v The State [1988-1989] PNGLR 271
The State v Damusuk and Others (2016) N6799
The State v Frank (No 2) (2012) N4700
State v Nick Teptep (2004) N2612
State v Eki Kondi & 4 Ors (No.2) N2543 (2004)
State v Donald Angavia & 2 Ors (No.2) (2004) N2590
State v Garry Sasoropa & 2 Ors (No.2) (2004) N2569
State v Flotyme Sina (No.2) (2004) N2541
State v Donald Poni (2004) N2663
State v Baimon Johnny (2008) N3861
State v Baimon Johnny (2008) N3861
State v James Urig CR. No. 375 of 2009 (2010)
State v Soii Mesak & 2 Ors (2009) N3907
State v Robin Andolu (2010) N5129
State v Ekalia (2011) N4603
The State v Kapil Omba (2011) N4250
The State v Piamia (2014) N5755
State v Kuman (2017) N6925

State v Koi (No 2) (2018) N7176

The State v Yali (2005) N2989
The State v Tomitom (2008) N3301
The State v Mongi (2011) N 4364
Steven Loke Ume & Ors v The State (2006) SC836
John Elipa Kalabus v The State [1988-89] PNGLR 19
Sanawi v The State (2010) SC1076
David Kaya and Philip Kuman v The State (2020) SC2026
The State v Joseph Wai (2020) N8452
Mase v The State [1991] PNGLR 88 at 92
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85
Hindemba v The State [1998] PGSC 48; SC593

References Cited

Sections 19, 347, of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms E. Kave, for the State
Mr B. Popeu, for both Offenders

DECISION ON SENTENCE

17^th May, 2021

1. BERRIGAN J: Lolo Bellamy and Hobai Haro you have been found guilty following trial of four counts of the rape of a young woman who will for the purposes of this decision be referred to as “Mary”, on or about 20 January 2012, whilst in the company of others, contrary to s. 347(1) and (2) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. Mary was 25 years old at the time and lived in Erima in Port Moresby. Earlier in the evening on Friday, 20 January 2012 she had been with her friends, and her younger brother. Like many young people on a Friday night she had consumed alcohol. The group went to a party at Sports Inn but it was cancelled due to the weather. The group returned to Erima, by which time it was about 9 pm, and went to a container store where the boys bought some bottles of beer. Whilst there a man from South Erave, called Peter, wanted to fight with her brother. The boys told Mary and her female friend to go back to the house, which they did. At the house Mary realised that her brother had not returned. She was worried and went down to the container store looking for him. There she ran into Peter who smashed a bottle over her head, causing a deep laceration. She kept walking.
   
3. That is when you, Lolo Bellamy, saw her, bleeding and vulnerable. You called her into the yard, saying: “Big Sister your head is bleeding so you come inside and use the water to wash it off”. You told her to wash her face and left her sitting at the side of the house before you returned just a short time later with you, Hobai Haro, and another person, Douba Kapina. Before she knew what was happening the three of you grabbed her hands, legs and waist. She screamed but you told her to shut her mouth. Together you took her to the back of Lolo’s house, through the iron fence and into the banana garden, where you tore off her clothes. Douba held her down by the neck whilst you Hobai held her hands. She told you to stop but you refused. You Lolo were the first to rape her, penetrating her vagina with your penis (Count 1). Once you were finished, Lolo you remained, keeping watch. Douba continued to hold her by the neck and her hands because she was struggling. You, Hobai Haro then raped her by penetrating her vagina very deeply with your fist (Count 2). She stopped struggling. She was in great pain. She told you to stop but you taunted her, telling her to call her brothers to come and save her. Then you raped her again by penetrating her vagina with your penis (Count 3). Lolo Bellamy, you continued to stand and keep watch. After Hobai finished, Douba came for her. She begged him to leave her because she knew him but he just laughed. Then he vaginally raped her with his penis whilst both of you stood and watched (Count 4). She pushed Douba away and crawled towards the neighbour’s house. He followed her but the neighbour heard her banging on the gate and came out before helping her into his house. Mary had grown up knowing each of you in Erima. Lolo called her his “big sister”.
   
4. Each of you were found guilty of Counts 1 to 4 on the indictment, namely the rapes you physically perpetrated yourselves, as well as the rapes you aided. Lolo, you were also found guilty of procuring the rapes of Hobai Haro and Douba Kapina.
   

Allocutus

5. On allocutus both of you maintained your innocence, relying on written statements outlining a number of errors you contend I made, and which I suggested you take up on appeal, as you are entitled to do. I gave you both a further opportunity to address me on sentence, which you declined. Putting aside the legal arguments, you both maintain that the victim was drunk and falsely accused you.
   

Sentencing Principles

6. The offence of aggravated rape contrary to s 347C of the Criminal Code was not in force at the time of the offences in 2012. It was inserted into the Code in 2013. Accordingly, the maximum penalty for the offences under s347(1) and (2) of the Criminal Code is life imprisonment.
   
7. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.
   
8. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the following guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
   

Submissions and Comparative Cases

9. Defence counsel conceded that you acted in concert to overpower your victim, and that at the time she was in a vulnerable position having been injured and intoxicated. He submitted in mitigation that you have no prior conviction, that there was no weapon used, no external grievous bodily harm or injuries inflicted and that there was no pre-planning involved. It was a spontaneous event, which is now dated.
   
10. He informed me that you were tried in the first instance with Douba Kapina and that each of you were sentenced to 26 years of imprisonment. Douba Kapina did not appeal against his conviction and his sentence of 26 years stands. Counsel submits that as there were no written reasons given for the sentence decision it is not possible to ascertain the basis of the sentence and as such the principle of parity does not apply in this case.
    
11. Counsel relies on Aubuku v The State [1987] PNGLR 267 in which the Supreme Court suggested that where two or more persons act together the starting points is 8 years, and submitted that there have been gradual increases in sentence since then. He submitted that a sentence in the range of 8 to 18 years, is appropriate, on each count, to be served concurrently under the one transaction rule. He asked the court to deduct time spent in custody: 6 years, 2 months and 4 days in the case of Lolo Bellamy, and 6 years, 7 months and 24 days in the case of Hobai Haro.
    
12. Counsel also referred to Wain v The State (1997) SC519 in which the appellant pleaded guilty to four counts of rape. He was sentenced to 8, 15, 25 and 8 years imprisonment respectively, to be served concurrently, less time spent in custody, at first instance, with a recommendation that he not be released on parole. Seven men took turns raping the victim at four different locations over a period of time, some indulging in forced anal and oral sex as well as vaginal sex, and subjected her to other indignities. The appellant was the initiator and leader in all of the incidents. Whilst acknowledging that it was a particularly serious case of rape the Supreme Court expressed the view that the sentence of 25 years was a “quantum leap” from then more recent cases of 14, 15 and 16 years. They also noted that the appellant pleaded guilty and reduced the sentence to 18 years, and quashed the non-parole order as there was no provision for it under the law.
    
13. The State agreed that in mitigation you have no prior convictions and that no weapon was used. It says in aggravation that: there was a degree of planning involved; you took advantage of a vulnerable person with a head injury; the offence was committed in company pursuant to s 349A(a); it involved a breach of trust on the part of Lolo Bellamy; extreme force was used; there were multiple acts of penetration; it occurred in the night; the victim was restrained; the victim suffered serious medical and psychological harm; the offence is prevalent; no remorse has been shown; and the victim has been required to relive the ordeal.
    
14. The State submitted that the starting point for aggravated rape should be 15 years: The State v Yali (2005) N6799. It referred to the principles outlined in Gimble v The State [1988-1989] PNGLR 271 but submitted that the Court should take into account the degree of participation in the offences by each of the offenders. Having regard to the fact that your co-accused had been sentenced to 26 years, and the aggravating factors in this case, it submitted that a sentence of 26 years on each count was appropriate in the case of each of you, and that having regard to the principles of totality the offences should be served concurrently.
    
15. The State referred to the following cases:
    
    1. The State v Damusuk and Others (2016) N6799, Cannings J: Six offenders were convicted after trial of one count of rape, one count of unlawful deprivation of liberty and three counts of armed robbery. They held up and robbed three scientists, a woman and two men, who were conducting research in a bush location in a remote area in which the offenders lived. In the course of the incident the six offenders each committed the crime of unlawful deprivation of liberty and rape against the female victim. Each offender was adjudged to have had an equal degree of involvement in the crimes. The offenders’ ages, background and personal circumstances were generally similar. Each of the offenders were sentenced to a notional term of 20 years’ imprisonment for the rape count before adjustment for other offences and totality;
       
    2. The State v Frank (No 2) (2012) N4700, Ipang AJ: the complainant was in company of others who went to the dance place at Komiufa Village. A fight broke out so the dance was stopped and the prisoner, her brother in law, offered to walk the victim home with the others. After a short time the offender grabbed the victim and dragged her down through the bush to a kaukau garden with three other men where she was anally and vaginally raped. A sharp object was inserted into the victim's anus, her intestines were pulled out when it was removed and it caused permanent disability, including the need for a colostomy bag. He was sentenced to 27 years, less time spent in custody.
       
16. I have also had regard to the following cases involving rape in company pursuant to s 347(1) and (2) of the Criminal Code. Where the higher maximum under s 347C was considered is noted.
    

Consideration

17. In my view whilst the offences in this case are very serious they cannot be classified as the worst type of rape contrary to s 347(1) and (2) of the Criminal Code.
    
18. I do not agree with the defence submission, however, that the starting point in this case should be 8 years according to Aubuku v The State [1987] PNGLR 267.
    
19. Quite apart from the fact that the Criminal Code has been extensively amended since 1987 to more adequately reflect the nature and type of sexual violence that might be perpetrated against men, women and children, and make specific provision to recognise matters of aggravation, the sentences imposed by the Courts have also increased in recognition of the abhorrent nature of such crimes and respond to their increasing prevalence. It is well established that the sentencing ranges suggested in Aubuku, from more than 30 years ago, are no longer commensurate with community expectations.
    
20. It also seems well established that the starting point for aggravated rape, even before the insertion of s 347C, was 15 years of imprisonment: The State v Yali (2005) N2989 per Cannings J; The State v Tomitom (2008) N3301 per Kandakasi J; and The State v Mongi (2011) N 4364 per Kariko J.
    
21. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.
    
22. The aggravating factors in this case are multiple and serious: the offences took place in the company of two others; you took advantage of a vulnerable person who was intoxicated and suffering a visible head injury; excessive force was used to physically restrain your victim and tear off her clothes; to drag her away, to a secluded place in the middle of the night; and detain her for some considerable time.
    
23. The victim was well known to both of you. You had grown up together in the same community. Lolo Bellamy, you abused your close relationship with the victim to lure her into your yard. It was you who procured Hobai Haro and Douba Kapina to commit the crimes. Hobai Haro required little encouragement. There was very little time between the time Lolo left and brought you back. Your first rape using your fist was extremely brutal.
    
24. The violent nature of the crimes was reflected in both the immediate and long term injuries suffered by the victim, including the lacerations to her body generally and the injuries to her reproductive organs.
    
25. A medical report showed that the following injuries were evident immediately following the offences. The uterus and cervix was very tender but intact. The vulva was bruised and swollen. There were two tears on the vagina wall extending up to the posterior fornix (a recess, behind the cervix and close to the recto-uterine pouch), from which she was actively bleeding and which required suturing. She was in great pain and shock. She had suffered lacerations generally to her body. The report also confirmed the deep laceration to the victim’s forehead she was suffering at the time of the attack.
    
26. The victim, or more appropriately, the survivor in this case has shown great courage since the offence took place more than nine years ago. The impact on her physical, emotional and psychological wellbeing, however, as outlined in her victim impact statement has been profound. The lapse of time since the offence as a result of the retrial lays bare some of the longer term effects of sexual violence not always available at the time of sentencing.
    
27. She remains very distressed by what happened. She is often afraid, especially when she is alone or sees a group of men. She feels constant pelvic pain, from which at times “she feels like she wants to die”. It prevents her from doing heavy lifting and as a result she has struggled to find employment. She does not know if the pain will ever go away. She has been stigmatised, especially by the offenders’ families. To escape it she moved away from her family and the community she grew up in. Most distressing to her though is the fact that she is now unable to have children which is, in her words, very hard to live with. She got married a year after the incident but the marriage did not last as her husband wanted children and she was unable to bear any. She has recently remarried and whilst she has been unable to have further children of her own, takes care of her son from her previous relationship, and her sister’s children.
    
28. Whilst there is no medical report which conclusively asserts that she is no longer able to have children as a result of the offences, the inference is overwhelming on the evidence, having regard to the nature of the rapes, the injuries sustained, the fact that she was able to have a child prior to the offences, and clearly desires to now but cannot. Even putting that issue aside, the long term physical effect of chronic and sometimes excruciating pain is clearly established on her statement, which I accept.
    
29. The offence is prevalent and calls for strong personal and general deterrence.
    
30. There are no extenuating circumstances in this case, that is no “particular circumstances in which the offence was committed that has the effect of reducing or diminishing the gravity of” it: Steven Loke Ume & Ors v The State (2006) SC836.
    
31. A mitigating factor is usually unrelated to the circumstances of the offence itself but still has the effect of reducing the punishment: Ume; John Elipa Kalabus v The State [1988-89] PNGLR 19.
    
32. There is only one factor of any weight in mitigation in each case, and that is that you are both first time offenders.
    
33. I have also taken into account your age and background. Like most rapists you come from very normal backgrounds, good families and reputable employment.
    
34. Lolo Bellamy, you are 30 years old. You are single and educated to Grade 6. You were previously employed by Airways Hotel at its gym. You lived with your parents at Erima. You were only young, about 21, at the time of the offence. I have taken your youth into account but it is of limited weight given the seriousness of the offence, your relationship with the victim, the critical role you played in luring her into your yard, and inciting the others to commit the offences with you, as well as the need for deterrence in general terms. Regrettably, it is well established that offences like these ones are often committed by young men like you.
    
35. No community leaders volunteered to attend Probation Services on your behalf. Your parents maintain your innocence and are deeply affected by your incarceration. I accept incarceration will have a significant impact on you and your family.
    
36. Hobai Haro, you are now 35 years old. You were about 26 years old at the time. Your father and elder sister are concerned for you, and maintain that you are innocent. You have a certificate in plumbing and were employed with Fletcher Morobe at the time of the offences. You have been treated for tuberculosis whilst in custody. The impact of the offences on you has been significant. You have a son and a daughter with your former wife, who remarried following the offence. She now has full custody of your children and lives in Western Province. I take this into account but it is of negligible weight in the circumstances of the case.
    
37. Helen Kaduelo, Women’s Leader, Erima says that in the eight years she knew you prior to the offence, you were a responsible, loyal and hardworking individual. She still has confidence that you possess the character to provide leadership to youths in the community. I accept her statement that you are previously of good standing in the community. I do not share her confidence that you currently remain a potential leader and mentor to youth. The prospect appals me. Your prior good character carries little weight given the nature of the offending.
    
38. However described, I do not agree that the fact that an offensive weapon was not used in this case is a mitigating factor. Nor is the fact that no grievous bodily harm was inflicted externally. Those matters are certainly relevant considerations in general terms when comparing sentences in other cases which might be more serious for those reasons, but they do not have the effect of reducing the punishment, they are just not matters in aggravation. Or in other words, it is hardly a matter in favour of the offenders that should have the effect of reducing their punishment that they did not also threaten the victim with an offensive weapon, or cause some permanent injury, during the commission of the offence. To suggest that they should be given some discount on sentence because they did not do worse than they actually did is perverse. As above, however, I am satisfied that some permanent physical harm has been done.
    
39. You have both shown a complete lack of remorse. Not only do you deny the offence, you continue to blame the victim for being drunk and maintain that she has falsely accused you, which I have rejected. The extent to which you took advantage of her intoxication only increases the seriousness of the offence by you against a vulnerable person.
    
40. I make it clear, however, that you are not to be punished for pleading not guilty, and insisting on a trial. That is your right. It means, however, that you are not entitled to any discount for pleading guilty. The fact that you maintain your innocence after trial is again your right but as a consequence there is no mitigation here for remorse.
    
41. I have also considered the question of delay raised by counsel. It is now 9 years since the offences were committed. That lapse of time is not exceptional, however, having regard to the appeal and retrial process. Nor does it detract from the seriousness of the offences. Furthermore, I intend to deduct the time spent in custody during that time from the period imposed on sentence.
    

Parity, Ceiling, and Cumulation

42. The principles governing parity discussed in Gimble were extensively considered and clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; affirmed recently in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis mine):

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

43. There are no great differences between your personal circumstances. As for the offences, Lolo Bellamy took a leading role and severely abused the trust of his victim, whilst Hobai Haro showed particular brutality. In all the circumstances there should be no marked disparity between the sentences imposed on each of you.
    
44. I have also taken account of the fact that this matter follows a retrial. As a general, but not absolute, rule, where an offender is convicted on a retrial, following a successful appeal, he or she should not receive a longer sentence than that imposed after the first trial, unless there is some significant circumstance to be taken into account. The rule recognises that the right to appeal is guaranteed under the Constitution: s. 37(16). Not only is the right to appeal important for ensuring the rights of a particular individual to a fair trial but also for the purpose of avoiding similar errors occurring in future criminal trials. Potential appellants should not be discouraged from exercising their Constitutional right for fear of receiving an increased sentence if convicted on a re-trial. Nor should the criminal justice system be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so: The State v Joseph Wai (2020) N8452 adopting and applying R v Gilmore (1979) A 1 Crim R 416 and R H McL v The Queen [2000] HCA 46; [2000] HCA 46; (2000) 203 CLR 452 adopted and applied. Factors such as a different finding on culpability, or the commission of additional offences in the meantime may justify an increased sentence. Having regard to the following, there is no reason to increase the sentences from those imposed following the first trial.
    
45. Defence counsel’s submissions on the issue of parity raise some interesting questions. I do not agree that because there is no written decision on sentence there is no decision on sentence. There is no need for a written decision in every case. The appeal against conviction was upheld not on the basis that there was no written decision but that the reasons given in the oral judgment were insufficient. It is often the case that sentences are delivered orally. It is also the case that judges are required to consider issues of parity without the benefit of written decisions in a co-offender’s case. Ultimately, however, the factors relied on by the judge at the time of the co-offender’s sentencing in this case are not available. In the circumstances whilst Douba Kapina’s sentence is a factor to take into consideration, it is my view that the proper approach is determine what the appropriate sentences are for these two offenders having regard to the facts established in this case, and then consider whether it is necessary to adjust them to avoid a marked disparity which would give rise to a justifiable sense of grievance, having regard to the respective culpability of all three offenders established on the trial before me.
    
46. I also remind myself of the approach to be taken when deciding whether sentences should be made concurrent or cumulative, and the principles of totality: Mase v The State [1991] PNGLR 88 at 92:

“It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.”

47. Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or concern different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.
    

Sentence

48. Rape is a very serious offence. The National and Supreme Courts have repeatedly denounced it and its prevalence: Hindemba v The State [1998] PGSC 48; SC593; Aubuku (supra).
    
49. The fundamental rights and freedoms of every person are enshrined in the Constitution. Women are entitled to the protection of those rights. They are entitled to go about their lives, to feel free, safe and equal in their homes, when walking around their village, town or settlement, at any time of the day or night, whether going to or from school, collecting water from the river, travelling on the highway, going to the market, to or from work, socialising at a party, or dancing at a nightclub. Rape is an assault on those rights. It is the assertion of power and control through the degrading violation of an individual’s liberty, bodily integrity, security, privacy and dignity.[1]
    
50. In the words of Kirriwom J, it is a “weapon of misery”: The State v Ekalia (2011) N4603.
    
51. The Criminal Code recognises that such crimes may be committed against men, women and children. Overwhelming, such crimes are committed against women and girls on the basis of their gender.
    
52. As explained by Ipang AJ in Frank (No 2):

“Being a female can now be seen as a risk factor as women and girls are often targeted for sexual abuse on the basis of their gender. The humiliation, pain and terror inflicted by rapist are meant to degrade not just the individual woman but strip the humanity from the larger group of which she is part of. The shame of rape humiliates the family and all those associated with the rape victim. In the aftermath of such abuse, the harm done to the individual woman is often obscured or even compounded by the perceived harm to the community.”

53. Only the victim knows the horror of the crime itself, and only she fully appreciates its’ terrible legacy.
    
54. But rape is prevalent and the fear it engenders pervasive. It interferes with the rights of all women to equal participation under the Constitution.
    
55. Rape in the company of others, or rape committed by a “gang” or “pack” of men, only exacerbates that fear and diminishes further the fundamental rights and freedoms enjoyed by women.
    
56. The offences in this case, committed against a young woman, whilst she was walking about in the very place in which she had grown up, by the very people she had grown up with, demonstrate the attitudes of some men. At the time of the offences the victim was taunted for being a woman alone without her male protectors. At trial she was blamed for the offence and accused of lying. It was the defence case that because the victim had been drinking, because she was walking around, at night, on her own, she was to blame for what happened, and that as such she should have and would have been so ashamed that she falsely accused the offenders.
    
57. The victim had nothing to be ashamed of, regardless of where she was, what time of night it was, or how much alcohol she had consumed.
    
58. The offences in this case were degrading, callous and cruel. Having regard to all of the above matters, including the aggravating and mitigating factors, the personal circumstances of the accused, and relevant case authorities, I sentence you Lolo Bellamy to 26 years of imprisonment on Counts 1 to 4 of the indictment. You physically perpetrated the first offence yourself, and it was you who lured the victim into your yard, you who breached her trust, procured the others to assist you rape her, and then encouraged them to rape her in turn, whilst you kept watch. You are equally liable for the offences committed by the others.
    
59. Hobai Haro, you are sentenced to 25 years of imprisonment on Counts 1 and 4, and 26 years of imprisonment on Counts 2 and 3. Count 2 was a particularly vicious rape intended to grossly humiliate the victim and inflict great pain. The rape in Count 3 was further cruel and demeaning.
    
60. The sentences were conducted at the same place and time, and against the same victim, and will be made concurrent.
    
61. Having regard to the respective roles of the three offenders, and the sentence imposed on Douba Kapina of 26 years, I see no reason to alter the notional sentences identified to avoid any justified sense of grievance due to a marked disparity.
    
62. I do not regard the sentences as a quantum leap from those imposed in the past having regard to the sentencing trend set out above. The sentences are comparative with the ones outlined above. The aggravating factors in this case are very serious. The offences remain prevalent. There are increasing calls by the Courts and the community for these offences to stop. These crimes cannot be tolerated and the Court has a duty to ensure that sentences imposed in such cases contain a strong element of both personal and general deterrence.
    
63. In the words of Kandakasi J (as he then was):
    

“The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases. This is necessary for a number of reasons. Firstly, the Courts have given sufficient warning of an increase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that, it is a serious violation of a woman or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence. Finally, the Courts exercise a power that belongs to the community, who expect the Courts to act as they themselves would, but within the constraints of the Constitution.”

64. In my view, the sentences imposed are the only ones that will ensure that the community is protected, the offenders are adequately punished, the Court appropriately denounces such offences, and that the offenders and others are deterred from committing similar offences in the future.
    
65. I exercise my discretion to deduct the time spent in custody to date.
    

Pre-sentence Reports and Victim Impact Statements

66. Before closing, I must raise the following matter. In doing so I make no criticism of the individual Probation Officers who prepared the pre-sentence reports in this case, to whom I am grateful for their careful and detailed work regarding the offenders’ circumstances.
    
67. It must be made clear, however, that it is neither necessary nor appropriate to ask either the offender, or more importantly, the victim of any crime to set out the circumstances of the offence for the purposes of the pre-sentence report. Whether on a guilty plea, or following trial, the facts establishing the offence have been determined by the Court.
    
68. An offender may wish to offer some explanation of the circumstances in which the offence took place, for instance, out of financial need in a dishonesty offence, but there is no need for Probation Services to obtain their version of the offending itself. If an offender wishes to maintain their innocence, that should of course be reported.
    
69. As for the victim, however, it is not only unnecessary and inappropriate but potentially very damaging to ask a victim to relive yet again the circumstances of the offence, particularly with a person they have never met before at Probation Services. The victim in this case has had to relive the trauma of that night numerous times with police, prosecutors, and at two separate trials, over the course of the last nine years, as part of the criminal process. There was no need for her to do so again for the purposes of sentencing. Nor was she required to confirm that she was sure of the offenders’ identity. That has been determined. It also appears that the two different officers who were assigned to prepare the reports for the respective offenders took separate reports from the victim. That is deeply regrettable.
    
70. The purpose of a victim impact statement is to give the victim an opportunity on sentence to express in their own words how they, their family or others close to them have been affected by the crime. The trial process is concerned with whether the offence occurred. Once established, a victim impact statement gives a victim an opportunity to tell the court and the offender, not what happened, but what the impact of that offence has been, and assist the court determine an appropriate sentence. It is hoped it may also return some power to the victim and bring some realisation to the offender.
    
71. In cases involving sexual violence, victim impact statements should be prepared in consultation with an officer from the Office of the Public Prosecutor, or the police, who is experienced in the area, and with whom the victim is comfortable, as was done in this case.
    

Orders

72. Lolo Bellamy is sentenced to:
    
    1. 26 years on Count 1 of the indictment;
    2. 26 years on Count 2 of the indictment;
    100. 26 years on Count 3 of the indictment;
    4. 26 years on Count 4 of the indictment;
    5. to be served concurrently;
    6. time spent in custody, 6 years, 9 months, 5 days is deducted;
    7. leaving a balance of 19 years, 2 months, 25 days of imprisonment in hard labour to serve.
       
73. Hobai Haro is sentenced to:
    
    1. 25 years on Count 1 of the indictment;
    2. 26 years on Count 2 of the indictment;
    100. 26 years on Count 3 of the indictment;
    4. 25 years on Count 4 of the indictment;
    5. to be served concurrently;
    6. time spent in custody, 6 years, 9 months, 5 days is deducted;
    7. leaving a balance of 19 years, 2 months, 25 days of imprisonment in hard labour to serve.
       

Sentences accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

[1] See S v Chapman [1997] ZASCA 45; [1997] 3 SA 341 at para 2-3.