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State v Timothy [2023] PGNC 49; N10155 (21 February 2023)

N10155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 98 & 99 OF 2021

THE STATE

V

HEIZER TIMOTHY & PAUL KANAWI

Lorengau: Geita J
2023:20^th & 21^st February

CRIMINAL LAW – Trial concluded – Sentence - Sexual penetration of a child - Section 229A (1) and (2) of the Criminal Code Act - Prisoners escaped from lawful custody, awaiting sentence.

CRIMINAL LAW – Sentence - Prisoners sentenced in absentia – s.571 Criminal Code invoked- Prisoners conduct of escaping prior to sentence tantamount to waiver of their Constitutional rights: s.37 (5).

CRIMINAL LAW – Sentence – Allocutus not administered – by escaping from custody the prisoners have given up their constitutional rights to be heard s.37 (5).

Cases Cited:

Goli Golu v. The State [1979] PNGLR 653
James Yali v. The State [2006] N2989
John Konobo v. The State [2004] N2500
Lawrence Simbe v The State [1994] PNGLR 38
State v Felix Ndrowoh CR 751, 752 &753 [2016] N6374
State v James Tugumar [2013] PGNC 217; N5377
State v. Nick Teptep [2004] PGNC 148; N2612
The State v Saleu Mark Paul CR 1074 [2018]
The State v. Frank Johnston (No 2) [2004] N2586
The State v. James Yali [2006] N2989
The State v. Justin Komboli [2005] N2891
The State v. Kenneth Penias [1994] PNGLR 48
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Counsel:

Mr. Francis Popeu, for the State
Mr. Kusunan Pokiton, for the Prisoner

DECISION ON SENTENCE

21^st February 2023

1. GEITA J: INTRODUCTION: The prisoners, who happen to be first cousins were found guilty to a charge of engaging in acts of sexual penetration of a juvenile victim (LB) on 17 August 2019. The offence comes under section 229A (1) and (2) of the Criminal Code Act and attracts a penalty, subject to s.19, to imprisonment for life.
   

2. On the 8 February 2023 they were found guilty of sexual penetration after trial, and they escaped from the premises of Lorengau National Court whilst waiting to be transported back to CS compound in Lorengau. Their parents were present in Court during trial and were told by the Public Prosecutor to return their sons to Court to be sentenced. At the time of receiving submissions for sentence, they were still at large. Counsel of the prisoners and the Public Prosecutor were heard on submission on sentence in absentia, hence this sentence.

3. The facts as found by the Court on their convictions following trial are these: On 17 August 2019 at Koroji village in Manus Province, around 8 am and 9 am in the morning as the juvenile victim (LK), then 11 years old was returning from her grandmother’s house after collecting her church dress, she was stopped and carried into the bush, blindfolded and raped by the prisoners in turn. She was threatened with a bush knife not to tell anyone about the ordeal or be harmed.

Antecedents

4. The state presented brief antecedent report on the prisoners with no prior convictions recorded against them. As for prisoner Heizor, he is aged 22 years and lives with his parents at Koroji Village in Pobuma LLG area in Manus. He was a student at Koroji Primary School. He is single. As for prisoner Paul Kanawi, he is aged 21 years and was a student at Koroji Primary School. He is single and lives with his grandmother and Lyn Tulukaren at Koroji village.

Allocutus

5. For obvious reasons, the allocutus was not administered, a requirement under section 593 of the Criminal Code as the prisoners voluntarily absented themselves and escaped from lawful custody prior to their sentence.

Mitigation

6. The circumstances of mitigation submitted by their Lawyer in relation to this offence are as follows:

1. Knife not used to harm the victim.
2. First time offenders.
   

Aggravating factors

7. Victim forced to come to court and give testimony and relive the trauma.

1. Age disparity of 7 and 8 years, respectively.
2. Shaming and stigma caused to the victim.
3. Prevalence of such offence in the Province
4. Knife used to threaten the victim to submit to sexual assault.
   

Submissions for Prisoners

8. Mr. Pokiton, Counsel for the prisoners referred me to the case of The State v Saleu Mark Paul CR 1074 of 2018. Lorengau. The accused in that case was sentenced to serve 6 years for sexual penetration of a child under 16 years. As regards the possibility of resolving this matter though Manus kastom, no further details were forthcoming because the prisoners’ parents have not come forward to assist the Public Solicitor. In the absence of clear instructions from the prisoners Mr Pokiton submitted for a head sentence of 15 years with partial suspension in the event that some compensation was forthcoming from the prisoners.

Submissions for the State

9. To his credit Mr. Popeu for the State submitted that the court take note of sentencing principle as regards the use of maximum penalty in the case of Goli Golu [1979] PGSC9 PNGLR 653 and the principle in the case of Lawrence Simbe v The State [1994] PNGLR 38. He submitted that besides the old case of State v James Yali N2989 when the prisoner was sent to 12 years for sexually penetrating a child under 16 years, Courts exercise of discretion as regards what should the appropriate penalty be in Section 229A cases have been guided by the peculiar circumstances and facts in each case.

10. Mr. Popeu referred the Court to two cases I dealt with in 2013 and 2016: State v James Tugumar [2013] PGNC 217 N5377 and State v Felix Ndrowoh CR 751, 752 and 753 of 2016 [2016] N6374. In those two cases I expressed concern at the time that there was an upsurge in sexual offences against children and its prevalence. Fast forward to 10 years the Court are still struggling to contain this evil amongst the society. Prisoner Felex Ndrowoh was sentenced to 19 years in prison.

11. He submitted that the prisoners’ actions of escaping from lawful custody immediately after trial and found guilty amounts to contempt of court and disrespectful to the Courts. Due to the nature and circumstance under which the crime was committed on a 11 year old child State called for a sentence in the range of those imposed in Penial Moke (supra) and Felix Ndrowoh (supra): sentence between 15 years to a high 19 years as the victim was subjected to trauma and relive the horrors of the crime committed on her. Only to find at the end of the day having been found guilty the prisoners escaped from the court premises.

12. As to whether it is within my powers to continue on with this trial and sentence the two prisoners, this is what is stated in the Criminal Code Act:

“Section 571. PRESENCE OF ACCUSED.

(1) Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court–

(a) may order him to be removed; and

(b) may direct the trial to proceed in his absence.

(Emphasis mine)
13. Having satisfied myself that there were ample precedents abound by use of s.571 of the Criminal Code I proceeded to receive submissions and sentence this prisoner in absentia. I view their conduct of escaping before receiving sentence as having waived their constitutional rights accorded to them under s.37 (5) of the Constitution: Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; The State v. Frank Johnston (No 2) [2004] N2586; John Konobo v. The State [2004] N2500; The State v. Justin Komboli [2005] N2891.

14. In 2006 Cannings J in the case of The State v. James Yali [2006] N2989 suggested ten years as the starting point after surveying a number of judgments delivered between 2003 and 2005 involving the offences of rape and sexual penetration of a child.

15. I take judicial notice that although the cases of The State v. Kenneth Penias and State v. Nick Teptep arose out of rape cases they still fall in the same category of sexual offences against women and girls. The sentiments expressed by Judges in those cases, in my view equally apply to sexual penetration cases and applicable in this day and age. Both the National and Supreme Courts have come out publicly in their judgments condemning the crime of rape and described this evil in society in many ways. Some of those cases have been noted in this decision. However in this instant case I feel obliged to adopt the sentiments expressed by Injia, AJ (as he then was) in The State v. Kenneth Penias [1994] PNGLR 48 as it encapsulates societal need to punish rapists harshly. His Honour stated at p.51, and I quote:

“Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them...Unfortunately, rape has become a prevalent offence in this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence.”(Emphasis mine)

16. Similar sentiments were expressed by Sevua J as he was than in the case of The State v. Nick Teptep [2004] PGNC 148; N2612. His Honour stated:

“Rape has become a very prevalent violent crime... The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.”(Emphasis mine)

Remarks
17. Notwithstanding the fact that the two prisoners are first time offenders and have not been heard on allocutus I consider that what they have done to a 11 year old child, going about her way to Sabbath and worship her God was pack-raped by the both of you. It follows that a longer deterrence and punitive sentence is the order of the day. You both will be sentenced on the same basis. Similarly, I see no justification in considering suspending any or part of your sentence, save for your pretrial custody periods available to you each and severally. Although I take judicial notice of the case referred to me, I do not consider sentencing the two prisoners within that range befitting of the crime committed. The aggravating factors including absenting themselves from this trial does not favour them. Your bail monies will be forfeited to the State forthwith on account of you each and severally absconding your bail conditions by escaping from lawful custody.

Sentence
18. The sentence I therefore impose upon you in this Indictment is as follows:

Heizor Timoth: Sentenced to 20 years imprisonment in hard labour.

Paul Kanawi: Sentenced to 20 years imprisonment in hard labour.

Sentences accordingly.

Addendum: State application for bench warrant considered and granted.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoners