Aubuku v The State [1987] PGLawRp 522; [1987] PNGLR 267 (29 July 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 267 - John Aubuku v The State 

[1987] PNGLR 267

SC341

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN AUBUKU

V

THE STATE

Waigani

Bredmeyer Los Hinchliffe JJ

28-29 July 1987

CRIMINAL LAW - Sentence - Rape - Guidelines - Different kinds of rape - Aggravating circumstances - Mitigating factors.

CRIMINAL LAW - Sentence - Rape - Police officer raping woman held in custody - Threat of bush knife used - Sentence of 10 years affirmed.

The following guidelines are to be taken as appropriate to sentencing for rape:

N1>(1)      the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances;

N1>(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;

N1>(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;

N1>(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;

N1>(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 innappropriate;

N1>(6)      where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point;

N2>(a)      violence over and above the force necessary to commit rape;

N2>(b)      use of a weapon to frighten or wound the victim;

N2>(c)      the rape is repeated;

N2>(d)      the rape has been carefully planned;

N2>(e)      the accused has previous convictions for rape or other serious offences of a sexual or violent kind;

N2>(f)      the victim is subjected to further sexual indignities or perversions;

N2>(g)      the victim is either very old or very young;

N2>(h)      the effect upon the victim, whether physical or mental.

N1>(7)      matters which may be relevant to mitigation include:

N2>(a)      a plea of guilty;

N2>(b)      the age of the defendant; and

N2>(c)      the degree of involvement of the defendant in the planning and carrying into effect of the crime;

but do not include:

N2>(d)      the fact that the victim may be considered to have exposed herself to danger by acting imprudently; and

N2>(e)      the previous sexual experience of the victim.

R v Billam [1986] 1 WLR 349, adopted and applied.

The State v Kaudik [1987] PNGLR 201, approved and followed.

Held

Accordingly, that a sentence of 10 years imposed on a police officer who raped a suspect in custody at the police station and threatened her with a knife was not excessive.

Cases Cited

R v Billam [1986] 1 WLR 349; 1 All ER 985.

State, The v Peter Kaudik [1987] PNGLR 201.

Note

See also The State v Koupa [1987] PNGLR 208.

Counsel

E Kariko, for the appellant.

V Noka, for the respondent.

Cur adv vult

29 July 1987

BREDMEYER LOS HINCHLIFFE JJ: This is an application seeking leave to appeal against a sentence of 10 years imprisonment imposed by Kapi Dep CJ for rape. The appeal against conviction has been abandoned. The appellant was a policeman based at Banz Police Station. The victim was a married woman taken into custody for stabbing another woman. The appellant took the woman out of the cells and into the office ostensibly for questioning and there raped her. He threatened her with a knife. The appellant denied the offence and was convicted after a trial.

We agree with Amet J in The State v Peter Kaudik [1987] PNGLR 201 where he set out the principles which should govern a sentence for rape. In that case he adopted and applied principles well expressed by the English Court of Appeal in R v Billam [1986] 1 WLR 349. We think that those principles are not only right and worthy to be followed but that the tariff of sentences expressed there for the different kinds of rape in England are the kinds of penalties needed in Papua New Guinea at this time. We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence. If we can paraphrase Billam (at 350), the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated violence or force. There is the emotional and psychological trauma. The woman feels violated and degraded. There are the continuing feelings of insecurity, the painful memories, and the fear of venereal disease or pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim. Furthermore rape involves the abuse of an act which, in its right context, is a beautiful expression of love.

Although the kinds of rape can vary considerably we believe it is possible to lay down some general guidelines as to the proper length of sentence. We quote now from Billam (at 351-352) with approval:

“For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man 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.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.

Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise be the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

The fact that the victim may be considered to have exposed herself to danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor; and the victim’s previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance.”

We apply these principles to the facts of this case. The case was a contested one; the appellant pleaded not guilty. The appellant was a policeman, the victim a suspect in his custody at the police station. He was thus in a position of responsibility and trust towards her like a doctor and patient, or a teacher and pupil. Then there is the aggravating factor that he used a knife to frighten her into submission. We assume that the appellant will be dismissed from the police force and that is a punishment — but it is one which does not weigh heavily in our view as he had been in the police force for four years only at the date of the offence.

We consider the sentence of 10 years correct; it was not manifestly excessive. We refuse leave to appeal against sentence and dismiss the appeal.

Appeal dismissed

Lawyer for the appellant: E Kariko, Public Solicitor.

Lawyer for the respondent: V Noka, Acting Public Prosecutor.