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Poia and Ors, Regina v [1964] PGSC 26; [1964] PNGLR 187 (18 December 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 187 - Regina v Heroma Poia and Ors

[1964] PNGLR 187

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

HEROMA POIA & OTHERS

Port Moresby

Frost J

16 December 1964

18 December 1964

CRIMINAL LAW - Rape - Sentence - Consideration of similar offences - Allegations of further rapes by each of the accused subsequent to the charges which appeared in the indictments then before the Court - Whether these allegations may be considered on sentence in respect of the matters before the Court - Discussion of matters which may properly be taken into account in mitigation of sentence.

In sentencing a prisoner, a judge may take into consideration any charge of which the prisoner personally admits the truth provided he consents to the charge being so considered. This is a rule of procedure in respect of which the judge has a discretion. But where the other charge is similar to that on which the prisoner has been convicted by the Court, the judge is almost bound to take it into consideration.

Thus, where a prisoner is convicted of rape and his three co-prisoners convicted of aiding and abetting the commission of rape by the first prisoner, individual acts of rape committed on the same occasion upon the same prosecutrix by the other three may be taken into consideration by the Court in sentencing them on the for which they have been convicted by the Court, the aiding and abetting itself amounting to rape and each of the three prisoners personally admitting the truth of the additional charges and consenting to their being taken into consideration.

R. v. Emere Gabua[cxlix]¹, a decision of Mann, C.J. of this Court; R. v. Syres[cl]²; R. v. Samuel Foster[cli]³; R. v. Davis[clii]⁴; R. v. Marquis[cliii]⁵; and R. v. Smith[cliv]⁶�followed.

The depositions of the committal proceedings contained allegations that each of the four accused had intercourse a second time with the prosecutrix and, one of the four, a third time. None of the accused admitted the truth of these allegations.

Held:

These further allegations may not be made the subject of the present indictments and may not be considered by the Court when determining sentence on the charges on which the accused have been convicted at these proceedings. R. v. Potter and McKenzie[clv]⁷�followed.

Matters properly taken into account in mitigation of sentence discussed.

Counsel:

Bowen, for the Crown.

O�Regan, for the accused.

Trial:

Before the Supreme Court at Port Moresby. The facts, reasons for judgment and submissions of counsel for the defence appear sufficiently from His Honour�s judgment.

FROST J:� The accused Hareamu Didihu has pleaded guilty before me to a charge of rape. Each of the three other accused, Hoia Heroma, Heroma Poia, and Hareho Nakea have pleaded guilty to a charge of aiding and abetting Hareamu Didihu in the commission of that offence. Under the Criminal Code each of these three accused is deemed to have taken part in committing the principal offence, and to be guilty of the offence. Section 7.

Mr. O�Regan who appeared as counsel for each of the accused asked me, in sentencing the three accused other than Hareamu Didihu, to take into account that immediately after Hareamu Didihu had intercourse with the girl Agnes McKenna, the prosecutrix, without her consent, each of the other accused also had intercourse with her without her consent. The learned Prosecutor consented to this procedure.

The English practice, which has been followed in this Court, see Regina v. Emere Gabua[clvi]⁸, a decision of the Chief Justice, is that a judge may take into consideration, in sentencing the prisoner, other offences which the prisoner admits, without any further indictment being presented. See R. v. Syres[clvii]⁹. It is essential that the prisoner should admit the truth of the other charge and should expressly consent that it should be taken into consideration. R. v. Foster[clviii]¹⁰.

The English practice requires that the prisoner should personally make the necessary admission, and give his consent. R. v. Davis[clix]¹¹�and R. v. Marquis[clx]¹².

Although the judge has a discretion as to the use of this procedure, �if the other charges are similar to those on which the prisoner has just been convicted, it is practically the duty of the judge to take them into consideration.� R. v. Smith[clxi]¹³.

As the offence I am asked to take into consideration in the cases of each of the prisoners charged with aiding and abetting the commission of rape by Hareamu Didihu, is itself rape, I have decided that it would be proper to accede to Mr. O�Regan�s request. But in accordance with the English authorities, after informing counsel in my chambers of my intention, I caused each of the three accused, Heroma Poia, Hoia Heroma, and Hareho Nakea, to be asked whether he admits having had intercourse with Agnes McKenna without her consent, and desires me to deal with that offence also in these proceedings. When being so asked, each accused made the necessary admission and gave such consent.

When sentencing each of these accused, I shall thus take into consideration that each, subsequently to the accused Hereamu Didihu committing rape upon Agnes McKenna, himself committed rape upon her.

The facts of the case are that in the evening of 18th October, 1964, a young European patrol officer named David Keith Edwards drove a girl of mixed race aged 17, named Agnes McKenna, towards the drive-in theatre out from Port Moresby. He stopped the car off a side road, near Ward Strip, in a place which was apparently used for depositing rubbish.

By this time it was about 6.30, and not completely dark. The girl says they had intercourse. After about ten minutes when Edwards and the girl were unclothed, Edwards got out of the car and noticed a group of five men, including the four accused, standing behind the car. He told them to go away. Three men ran at him, the other two ran to the car and tried to drag the girl out of the car. Edwards fought off his attackers, got into the car and with the men hanging on to the car and trying to drag the pair of them out, Edwards managed to drive it off. As the car picked up speed the men were forced to let go. The car proceeded, with its doors open, for about 200 yards along a track, until it ran into a ditch. The girl by this time had managed to put on her dress. Edwards and the girl quickly jumped from the car, but the five men were waiting for them. One swung at Edwards with a piece of steel. Edwards was able to duck. He talked to them. He said all that they could get out of beating him up was trouble in the long run. At this stage he may have had underpants on; he had only a towel draped about his middle. The men gathered around them, each man holding something, a piece of wood, one man a piece of concrete, in his hand. The girl stood close to Edwards clinging to his arm. She was very frightened and crying.

At some stage one of the accused asked Edwards, �Who�s the girl?� Edwards said she was his girlfriend. He was asked was she Papuan or European. Edwards said she was Mixed Race. The men said she was Papuan. I am prepared to accept that one said that Edwards was doing wrong, he was making trouble. They told Edwards to leave the girl alone, they wanted to make love to her. Edwards said, �Don�t do anything to her�.

He offered them money. He asked them to help lift the car from the ditch and forget the whole thing. He talked to them for what seemed to him a long time, perhaps half an hour. The men agreed eventually to help him get the car out. They put down what they had in their hands and squatted down in front of him.

They spoke in Motu among themselves and to the girl. They spoke also in their own language which the girl did not understand. At some stage Edwards told them he was a patrol officer.

Suddenly the accused Hareamu Didihu picked up a piece of light iron and hit Edwards on the back of the head. He fell to the ground, unconscious. Hareamu struck him another blow about the face.

The fifth man whose name was Marhuhu Hilake then ran off.

The girl screamed and ran. She ran only about 20 yards before she fell into a ditch. She was picked up by the four accused. To stop her screaming Hareamu punched her in the stomach. The men pulled or carried her up the hill. One of the men put his arms around her mouth. She tried to cry out but she couldn�t. She was thrown to the ground. Two or three men held her down, a man holding each leg. Hareamu had intercourse with her. Each of the other accused had intercourse with her. The girl kept saying, �Help me, don�t kill me.�

After a time three of the accused ran off, leaving the girl with Hareamu. He walked her towards Hohola. Her ordeal did not end until day break, when they met a schoolboy. The girl told the boy she was in trouble. Hareamu then ran away.

There is evidence in the depositions which I have read, that each of the four accused had intercourse a second time with the girl, and Hareamu a third time. Such charges cannot be made the subject of the present indictments (Regina v. Potter and McKenzie[clxii]¹⁴). Further, none of the accused has admitted the truth of any such further allegations. Thus I expressly exclude such evidence from my mind in sentencing the accused upon the present charges. It is for the Crown to decide whether it will present further indictments for these offences.

Mr O�Regan, who made an able address on behalf of the accused, submitted that I should take into account various matters in mitigation of these offences. They were, that the accused men�s sexual desires were excited by seeing both the girl and Edwards undressed, in circumstances which suggested that intercourse had taken place; that they were justly incensed when they discovered that Edwards was a patrol officer, which is a position of trust and traditionally held in the greatest respect in the Territory. He further submitted that the men held the view, commonly and mistakenly held by Papuan people, that for Edwards to have with him a Papuan girl (as he submitted they thought she was) was contrary to the law. He submitted that the man Marhuha Hilake incited the four accused to do what they did, that the circumstances in which the girl was found, including the place, near a main road at dusk, contributed to the offence. He further submitted that the facts showed that the girl was free with her favours, and that there was no such ground of aggravation as is found in cases where the prosecutrix is of unimpeachable virtue.

It is unfortunate that the circumstances in which the European patrol officer and the girl allowed themselves to be found not only provided an opportunity for the crimes, but also set a bad moral example to the accused men.

Upon reflection I have decided that I should take into account that the accused were tempted when at first they saw undressed both the girl and Edwards, whom they learnt was a patrol officer. But this consideration is somewhat weakened by what followed. There was the frantic attempt of the couple to escape, the lapse of time as they were all talking, Edwards� plea, with the pathetic figure of the girl then dressed, crying and clinging to Edwards.

These crimes were carried out with great determination. They were committed after a sufficient lapse of time for the accused to be aware of the heinous conduct on which they were bent.

There is no law which forbids a European man to be in the company of a Papuan. Having seen the girl, I do not consider that the accused thought the girl to be Papuan. Even if they considered the girl to be partly Papuan, which I am prepared to accept, and had any such mistaken belief as to the law, they certainly knew that it was wrong and against the law to commit these serious offences upon the girl. I can attach very little weight to this consideration.

The girl may have been free with her favours; she was still entitled to the law�s protection. If Marhuha Hikale did incite the accused, which the Crown does not admit, they were ready enough to act.

On the whole I have decided to give some weight to Mr. O�Regan�s various submissions taken together.

Hareamu Didihu was the dominant one of the accused, as Mr. O�Regan submitted. It was he who struck Edwards down. This was enough to make Marhuha Hilake run off. The four accused men then fell as a pack upon the defenceless girl, after her vain attempt to flee. She had to be held down by two or three men. It was Hareamu apparently who first had intercourse with her as the others held her down. Each later used the girl in the same way, one after the other. It was a �multiple� rape, which requires that the sentences must be severe.

Because of his leading role, I have decided that the punishment of the accused, Hareamu for the principal offence, should be greater than that of the three others for aiding and abetting him, whilst taking into consideration the fact that each of the three other accused then had intercourse with the girl without her consent. But for the part that he played as ringleader Hareamu must not be punished twice. I consider that it was his assault upon Edwards which facilitated all the crimes, and for that he will be separately punished.

I shall take into account the youth of the accused. Hoia Heroma is 19 years, the others are 18 years of age. I shall take into account that three of the accused have previously been of good character. I shall not hold against Hoia Heroma the two minor offences of which he has previously been convicted. According to the antecedent reports, the accused are all of normal intelligence. Hoia Heroma and Heroma Poia are uneducated, the others received only a little education. Each has been working at Port Moresby for a year or two. In their own district these crimes are regarded seriously.

The terms of imprisonment I impose must express the abhorrence of the whole community, indigenous and non-indigenous, of these crimes. The sentences must be such as to be a deterrent to others. The criminal code adopted by the Legislature of the Territory, prescribes for rape a maximum sentence of imprisonment for life. I have decided that Hareamu should be sentenced to twelve years imprisonment with Hard Labour, and each of the other accused to eleven years imprisonment with Hard Labour.

I propose now to deal with the further charge to which Hareamu has pleaded guilty. It was a vicious assault. There was more than one blow. He received multiple lacerations to the scalp, face, both arms and the right shoulder. He sustained a fracture to the cheek bone on the left side, and the tissues about the fracture were severely bruised and swollen. He has a scar under the left eye which I have seen. It is clearly visible. The maximum sentence prescribed is three years. He will be sentenced on this charge to one-and-a-half years imprisonment with Hard Labour.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[cxlspan>(Unreported).

[cl]73 J.P. 13.

[cli]27 Cr App.R. 89.

[clii](1953) 1 K.B. 274.

[cliii]115 J.P. 329.

[cliv]85 J.P. 224.

[clv](1959) Qd. R. 378.

[clvi](Unreported).

[clvii]73 J.P. 13.

[clviii]27 Cr App. R. 89.

[clix](1943) 1 K.B. 274.

[clx]115 J.P. 329.

[clxi]85 J.P. 224.

[clxii] (1959) Qd. R. 378.