State v Poni [2004] PGLawRp 17; [2004] PNGLR 367 (22 September 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

DONALD PONI

LORENGAU: KANDAKASI J

08, 14 and 22 September 2004

CRIMINAL LAW –Verdict – Gang abduction and rape – Issue for trial - Identification – Witness identifying known offender by sight and voice recognition in the night – Accused raising belated alibi and attempting to prevent victim from pressing charge - State witness having no reason to testify falsely against accused – Identification evidence good and credible - Guilty verdict returned – Section 347 of Criminal Code.

CRIMINAL LAW – Sentence – Gang abduction and repeated rape – Use of a weapon – Offence committed in the middle of the night – Conviction after trial – No genuine remorse expressed – Prevalence of offence and need to deter - Sufficient warnings of increase in sentences already given – 19 years sentence imposed – Section 19 and 347 Criminal Code.

Facts

The accused was charged with one count of rape of the victim, contrary to s.347 of the Criminal Code Act. The accused was in a group of men who abuducted and gang raped her.

The victim was able to identify the accused as he was known to her.

Held

1. The prosecutix's evidence in identifying the accused is credible and has established the accused as one of the men who raped the victim.

2. The accused has failed to comply with the requirement to give notice of his defence of alibi. The defence must therefore fail.

3. The circumstances surrounding the commission of the crime are aggravating so as to justify imposition of a term of 19 years imprisonment with hard labour.

Papua New Guinea cases cited

Allan Peter Utieng v The State (unnumbered Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.
Application of John Mua Nilkare (15/04/97) SC536.
Avia Aihi v The State [1981] PNGLR 81.
Jimmy Ono v The State (04/10/02) SC698.
John Aubuku v The State [1987] PNGLR 267.
John Jaminan v The State (N0.2), [1983] PNGLR 318.
Lawrence Hindemba v The State (27/10/98) SC593.
Mary Bomai Michael v The State (01/04/04) SC737.
Public Prosecutor v Don Hale, (1998) SC564.
Re Application by Anderson Agiru (08/10/01) SC671.
The State v Donald Angavia & Ors (29/04/04) N2590.
The State v Eddie Peter (No 2) (12/10/01) N2297.
The State v Eki Kondi & Ors (No 1) (24/03/04) N2542.
The State v Eki Kondi & 4 Ors (No.2) (25/03/04) N2543.
The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.
The State v Fredinand Naka Penge (24/05/02) N2244.
The State v Garry Sasaropa & Ors (No 1) (27/04/04) N2565.
The State v Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569.
The State v Ian Napoleon Setep (18/05/01) SC666.
The State v Irox Winston, (13/03/03) N2347.
The State v Junior Apen Sibu (N0. 2) (25/03/04) N2567.
The State v Kevin Anis and Martin Ningigan (07/04/03) N2360.
The State v Kunija Osake (22/05/03) N2380.
The State v Lucas Yovura (29/04/03) N2366.
The State v Luke Sitban (No 1) (07/06/04) N2572.
The State v Luke Sitban (No 2) (2004) N2566.
The State v Marety Ame Gaidi (01/08/02) N2256.
The State v Okata Talangahin (No 1) (11/06/04) N2581.
The State v Pais Steven Sow (25/03/04) N2588.
The State v Peter Malihombu (29/04/03) N2365.
Thomas Waim v The State, (02/05/97) SC519.

Counsel

A. Kupmain, the State.
A. Raymond, for the prisoner.

14 September 2004

Kandakasi j. You stand charged with one charge of rape against the victim (named) on 24 July 1999 after abducting her from her house in the night here in Lorengau. You denied the charge saying, you were elsewhere and did not commit the offence. The issue for trial was therefore one of identification.

In view of your defence, your counsel correctly conceded that you were in no position to dispute evidence on the commission of the offence as described by the State's witnesses. The only contest you could legitimately raise was in relation to the allegation that you were the person who committed the offence. Accordingly, I note that the evidence clearly demonstrates that the victim was asleep in her parents' house at Ward 1 here in Lorengau around 3:00am in the morning of 24 July 1999. Around that time, the victim was 17 years old.

The incident started with a group of men numbering around five fronted up at the victim's parents' house on the date and time in question. This group of men called out for a girl by the name of Diana. The victim said she recognized the voice as that of yours. She said and you confirmed in your own evidence that, she knows you because you attended the same SDA church here in Lorengau. She identified you as a person of mix Sepik and Malapang, Manus Proivince, which you do not dispute.

On hearing the voices, the victim's father, opened the door of his house, came out and met the group of men in the front of his house. There, the father testified that he spoke to a Ralph Poksen. In that conversation, the group of men kept on asking for Diana even though the victim's father told them that the girl they were calling out for was not in the house. Soon thereafter, the victim's father testified that, from the corner of his eye he could see in the light of an hurricane lamp that hung from the veranda of his house you, Donald Poni get around his back and knocked him down. On seeing what the group of men was doing to the victim's father, the mother called out to the victim to get out of the house for her own safety. Accordingly, the victim tried to get out of the house and reach for the steps. As she stepped out, she fell into the hands of one of the members of the gang, namely Ralph Poksen.

The gang pushed her into the bushes near Ward 2. Once in the bushes, the rest of the boys left her in the hands of Ralph Poksen who took her toward Ward 3 and pulled her into a flower garden. There, he pushed her onto the ground, forcefully removed her clothes as well as his, opened her legs put his penis into her vagina and proceeded to have sexual intercourse with the victim without her consent. As soon as he finished, two of the other men approached. One of them she recognized as you, Donald Poni and the other a dark skin person who she was not able to identify. You, Donald Poni then proceeded to have forceful sexual intercourse with the victim and the other men followed you in taking their turn in raping the victim after taking her closer to a river. Two other men who included a Glen Kerry also took turns in raping the victim. From there, you Donald Poni took the victim to your houseboy, designed Sepik style at Ward 3. Because the gang threatened her with a knife, she did not call out for help in fear of her life.

After this ordeal, you and your gang left save for Ralph Poksen who asked the victim what have the gang done to her. She did not answer that question and told him, she wanted to go to her house. However, he took her to the Hospital at Lorengau East. She tried to stand out so the members of the public or a passing police vehicle can notice her but that did not happen. Eventually however, her father came in a police vehicle and stopped in front of her. She got on the police vehicle where she saw her mother. From there, the police took her to the police station where she reported what happened to her.
The victim, also testified and you do not dispute that, on the eve of the trial on 07 September 2004, you went in a vehicle to her house and asked her to abandon the case against you.

The State's case is consistent throughout. The only inconsistencies that appear in the evidence of the father and the victim is in respect of the height of the flowers and plants around or near the victim's residence. The victim said they were short and gave an estimate of about half a meter. Her father said they were tall and gave an estimate of about 3 meters. However, the line of cross-examination was not specific as to the time references, in terms of whether the estimates were as at the time of the incident or at the time of giving evidence. So this is of no consequence.

The second area of inconsistency is in the area where the victim says, she was met by her father and mother in a police vehicle. This contradicts the father saying the victim came to the house. Your counsel, in my view, correctly conceded to suggestions by the Court that this was not a serious inconsistency and in any case given the time that has passed since the commission of the offence, this kind of inconsistency was inevitable. Your counsel also conceded correctly, in my view, that this inconsistency is a minor one, as it does not go into the issue for trial.

Against these is your testimony that during the night of the offence you were at Duncan Darius' house at Ward 3 watching video from about 8:00 to 9:00pm until around 3:00am, the next day. You said you were there until the victim's father came with police and asked for you. Two weeks later the police took you to the police station and had you charged on allegations of raping the victim. That surprised you as you said, you did not know anything about the allegations except for learning that the incident happened with other boys involved and not you. You also said the victim knew that you were befriending the girl called Diana and you thought that caused the victim to call your name. Later under cross-examination, you changed this to say the victim identified you as one of her rapists because she thought you hit her father.

Under further cross-examination, you gave an interesting pattern of answering questions put to you in terms of the entirety of the prosecution's case. You answered some questions with not knowing anything and answered other questions in the negative. An example of this is in the following questions and answers:

"Q. When Ralph Poksen asked for Diana you hit Zackias Epeli on his head?

Ans. No.

Q. After Zackias Epeli became unconscious, Ralph Poksen grabbed hold of the victim, what do you say?

Ans. I do not know because I did not know of the trouble.

Q. You took the victim along a bush track to Ward 2, what do you say?

Ans. No.

Q. From there Ralph Poksen had sexual intercourse with the victim after you left them?

Ans. No.

Q. Ralph brought the victim down to your houseboy?

Ans. I do not know because I did not see them."

If indeed you were not one of those men who raped the victim, your answer could have been a consistent, "I do not know anything about that, as I was not involved" or words to that effect. However, the questions, which you answered in the negative, suggest having knowledge of the facts suggested in the questions.

Further, you did not give any details as to the kind and number of video's you were watching very late into the night and into the early hours of the next day. Coincidently, your video show ends at 3:00am. Thereafter, you do not say what you did, whether you slept or went somewhere.

Logic and commonsense as well as the demeanor of the witnesses and consistencies in their evidence do play a major part in the acceptance or rejection of a witness and his or her evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. I therefore, carefully observed the demeanor of each of the witnesses called.

I found nothing in the demeanor of the victim and her evidence as well as that of her witness' testimony that is suggestive of giving a false testimony. Indeed, as noted, you provided no good reason for the victim and her witness coming into Court and giving a false testimony against a person of the same church and congregation. There are only two areas of inconsistencies in their testimony but these inconsistencies as already noted, are not serious and do not go into the issue for trial. Besides, there is a good explanation for these inconsistencies.

On the other hand, your evidence lacks detail as noted above. That is demonstrative of evasion. In addition, your testimony contains evidence suggesting an alibi. You did not give notice of that to the State as is required by the criminal practice rules. The law in relation to that is very clear. The Supreme Court in John Jaminan v. The State (N0.2), [1983] PNGLR 318 at pp. 332 -333 per Bredmeyer J., stated the relevant principles in these terms:

"...[T]he alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge's decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused."

I applied these principles in a number of cases. One of the latest is The State v. Luke Sitban (07/06/04) N2572. Applying these principles to your case, I note that you did not raise the fact of you watching video in Duncan Darius' house from about 8:00 pm to 9:00 pm until 3:00am the next day in your record of interview. There is no evidence of you disclosing that to the Court or the State during the committal process. Then finally, you did not give notice of this alibi in accordance with the requirements of the practice rules, which require a minimum of 7 days notice to the State. The purpose of giving early notice of an alibi is as I said in The State v. Okata Talangahin (No 1) (11/06/04) N2581:

"... [T]he purpose of this rule is to enable the State sufficient time and opportunity to check out your claims of being elsewhere. Then based on its inquires, the State could make a decision whether to purse a charge against you or abandon the proposed charge. Our system of justice allows for fair play by rules such as this and not trials by ambush. Coming into Court and claiming an alibi as you did in this case, amounts to a recent invention. Therefore, the law is that little or no weight should be placed on such evidence. Accordingly, I place little or no weight on your evidence."

The effect of all these is that, this Court cannot place any weight on your belated claim of being at Duncan Darius's house watching video on the day of the offence until 3:00am. What this means in the consequence is that, it affects the entirety of your response to the evidence against you since your belated claim of alibi constitutes the bulk of your response to the evidence against you.

In the final analysis, I accept the prosecutions witnesses and their evidence as credible. However, this does not automatically mean that, I should find you guilty on the charge presented against you. Instead, I am duty bound to warn myself of the risk of mistaken identity given the issue for trial being one of identification of you as the offender.

With the endorsement of the Supreme Court in Jimmy Ono v. The State (04/10/02) SC698, I summarized the relevant principles governing the treatment of identification evidence in The State v. Marety Ame Gaidi (01/08/02) N2256, in this way:

"1. It has been long recognized that there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;

6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

8. There should be an acquittal if the quality of the evidence is bad."

In line with these principles I warn myself that there is always the risk in every case that even a credible witness might make mistakes in identifying even a known person, and your case is no exception. It is, therefore, necessary to closely examine the circumstances in which the witnesses identified you and determine whether they identified you correctly or properly.

The relevant circumstances in which the victim and her father identified you are firstly that both witnesses knew you well before the commission of the offence as a member of the same church or congregation. Secondly, the victim recognized you by both sight and voice. Although the witnesses identified you in the night, there was a hurricane lamp that provided light sufficient for the witnesses to identify you. Thirdly, the victim had more than one opportunity to recognize you both by voice as well as by sight. The first of the vocal recognition was at her house, the next opportunity was when Ralph Poksen left her in your hands and you took her closer to a river and raped her. She had a further opportunity to recognize you, when you took her to your houseboy designed Sepik style at Ward 3. The final opportunity was when you and the others raped her in your houseboy. As I found in the cases of The State v Okata Talangahin (No 1) (11/06/04) N2581; The State v Luke Sitban (No 1) (07/06/04) N2572; The State v Garry Sasaropa & Ors (No 1) (27/04/04) N2565 and The State v Eki Kondi & Ors (No 1) (24/03/04) N2542, this was a close physical encounter. Neither the victim nor you or any of your gang members had facial masks or anything like that to make identification of you difficult. Given these factors, I have no difficulty in finding that the victim and her father were not mistaken in their identification of you as one of those that turned up at their house, hit the father, abducted the victim and raped her repeatedly at different locations. I am satisfied beyond any reasonable doubt that you committed the offence of rape on the victim as the State alleges.

Based on the foregoing, I return a verdict of guilty on the one count of rape against the victim. Further, I order that your bail be revoked and your cash bail be refunded on the provision of the relevant receipt. Furthermore, I order that you be remanded in custody until your sentence.

Decision on sentence

22 September 2004

On the 14 of this instant, the Court found you guilty on a charge of gang rape. The relevant facts appear in the foregoing judgment on verdict. I need not repeat them here. Nevertheless, in order to decide on a sentence that fits the circumstances in which you committed the offence, it is necessary to re-state in summary form the relevant facts. In this regard the following facts are relevant:

you were a part of a gang of 5 men that raped the victim;
the victim was abducted from her residence in the early hours around 3:00am on the day of the offence;
you and your gang repeatedly raped the victim;
a bush knife was used to secured the repeated acts of rape upon the victim;
you and the victim attended the same church and so therefore she knew you and you knew her, though not intimately; and
you were found guilty after a trial.

The Offence and Sentencing Tariff

Section 347 of the Criminal Code creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. It is therefore, a very serious offence against the victim, her family and relatives, all young girls, women, and the community in this province and the whole country as well. It is an offence of most serious violation of a female's person, her liberty and right to existence as a human being.

Hence, Parliament decided to prohibit it. It did so by enacting s. 347 of the Code and prescribed the maximum penalty of life imprisonment. A number of Supreme Court decisions like that of John Aubuku v The State [1987] PNGLR 267, have set and elaborated on the relevant sentencing guidelines in this kind of cases. These cases make it clear that the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape (in less serious cases of rape) to life imprisonment for worse cases of rape. In the lower end are cases with no aggravating factors while those on the higher end, have factors in aggravation such as perverseness, mental disorders or other serious aggravating factors.

Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v The State, (02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court was of the view that the sentence by the National Court was a "quantum leap" instead of a progressive increase.

Almost a year after the decision in the above case, the Supreme Court in Lawrence Hindemba v The State (27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea by a first time offender acting alone. The Court in that case, surveyed some of the cases decided up to the date of the judgment and said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society's demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

In arriving at its decision, the Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. The rape was committed in the presence of the victim's schoolmates who ran away.

As I have noted elsewhere in various other judgments, this sentence was in 1998 and the offence of rape has not decreased since then. Instead, it has been on the increase and the society has been calling for increases in the kind of penalties imposed. I responded to this calls by imposing a sentence of 17 years, for a rape of a young pupil in breach of a de factor trust with some violence and threat after a trial. That was in The State v Eddie Peter (No 2) (12/10/01) N2297, in a case of one on one rape. In arriving at that sentence, I noted that, the sentences in the past-decided cases are only guides. This is so because usually the question of what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case. Hence, in the exercise of the discretion vested in him or her under s.19 of the Code, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.

Further, I have noted that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. I attributed this increase in part to the kind of the sentences imposed up to then, and opined that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. This therefore calls for a serious re-examination of the kind of sentences imposed to date. In that regard, I noted that the Supreme Court in Lawrence Hindemba v The State (supra) did echo that need. I then observed that the kind of sentences that have been imposed since even Lawrence Hindemba's case, have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

Since my judgment in The State v Eddie Peter (No.2) (supra), a number of judgments have increased sentences in rape cases. My brother Jalina J., in The State v Kunija Osake (22/05/03) N2380, for example, imposed a sentence of 18 years in hard labour on a guilty plea. That was for the rape of an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

Prior to that, my brother Salika J., imposed the maximum of life imprisonment in a serious case of rape. That decision went on appeal to Supreme Court. The judgment of the Supreme Court is in circulation as, The State v Ian Napoleon Setep (18/05/01) SC666.

That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant's wife.

The Supreme Court, of which I was a part, on appeal had the sentence reduced to 25 years following the no "quantum leap" principle in Thomas Waim v The State (supra). At the same time, the Court accepted that sentences in rape cases require progressive increases rather than jumping from a term of years to life imprisonment.

In a number of my own judgments, I question the no "quantum leap" principle. The persuasion for that is the fact that the offence of rape and other sexual offences have taken quantum leaps. Given that, the sentences should also take a quantum leap to correspond with the quantum leap in the offence itself: see The State v Eddie Peter (No 2) (supra) for example. Recently, the Supreme Court in Mary Bomai Michael v The State (01/04/04) SC 737 endorsed the views I have expressed regarding that concept.

Regardless of whatever position one takes on the principle of no "quantum leap", there is general agreement that the offence of rape has seen a huge increase both in the number of cases and gravity with which some of them have been committed. As a natural reaction to that, the society is calling for stiffer penalties. Parliament has responded to that by amending s.347 in terms of prescribing a sentence of up to 15 years for simple acts of rape and sentences beyond that to life imprisonment in cases where aggravating factors exist: The State v Luke Sitban (No 2) [2004] N2566 and The State v Donald Angavia & Ors (29/04/04) N2590.

The sentencing power the sentencing judges exercise is a power that belongs to the community. As such, they should 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 the 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.

In this regard, I note what the Supreme Court in Public Prosecutor v Don Hale, (1998) SC564 said is relevant. There, the Supreme Court said:

"The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered."

These principles, in my view, in a more practical way acknowledge and allow for an exercise at least in that limited way, by the people themselves their judicial power. The Constitution does acknowledge and affirm in s.158(1) and elsewhere that the judicial power that the Courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v The State [1981] PNGLR 81.

In subsequent judgments of the Supreme Court, as in Tau Jim Anis & Ors. v The State, (supra), these principles have been cited with approval. Many other judgments of both the Supreme and the National Courts have adopted and applied these principles. Some of these are my own judgments as in The State v Irox Winston, (13/03/03) N2347, where I said:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation to the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people's wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

Bearing this in mind, I imposed a sentence of 15 years on a guilty plea by an adult male offender acting alone in aggravating circumstances. That was in the cases of The State v Pais Steven Sow (25/03/04) N2588. In that case, the offender a mature single man related to the victim abducted and raped a married woman in the presence of two of the victim's small children. The offence was committed in a breach of a trust position.

On the same day, I imposed a sentence of 13 years after a short trial against a young first time offender also acting alone who raped his niece. Apart from the breach of trust as a close relative, there were no other aggravating factors. That was in The State v Junior Apen Sibu (No. 2) (25/03/04) N2567.

Again, on the same day, in The State v Eki Kondi & 4 Ors (No.2) (25/03/04) N2543, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively to a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences where given in view of the different roles each of the offenders played and their ages.

I imposed similar sentences in The State v Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569. There, a gang took turns in raping the victim, a young girl at various locations in their village. The victim and the offenders were blood relatives for two of the offenders and related through marriage for the other. There was therefore a breach of a trust relationship as well.

Your Sentence

In your address before sentence, you said sorry for having committed the offence and asked for the Court's mercy. In so doing, you pleaded in effect your personal and family background and needs. You informed the Court that you are married with 4 children, two of which are at school. Whilst you are unemployed, your wife is. Your father is deceased but your mother is alive. She is however very sick and depends on you for her daily survival needs.

Starting with a consideration of your plea for mercy, I note as I did in The State v Donald Angavia & Ors (supra) and other cases that, mercy works two ways, just as respect is. One has to first show mercy before seeking mercy for him or herself. There is no evidence of you showing any mercy toward the victim both at the time of the repeated rape on her or after the rape on her. If you were indeed merciful toward your victim, you could have long said sorry and paid her compensation or should have done something like that to show your mercy but you have not. When that is the case, I find your plea for mercy is a selfish plea, which I should be slow to grant.

A related aspect is you saying sorry to the Court and others, including, the victim and her relatives. However, there is no evidence that you paid compensation or offered anything tangible to the victim to show your remorse. There is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (24/05/02) N2244; Allan Peter Utieng v The State (Unnumbered Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v Kevin Anis and Martin Ningigan (07/04/03) N2360. On the strength of these authorities, I find that you merely saying sorry means nothing. Accordingly, it is not a factor in your favour.

Turning now to your personal background and needs as well as that of your family, if need be, I note that the law is also clear. I restated that in The State v Lucas Yovura (29/04/03) N2366 in these terms:

"Indeed I note what the Supreme Court in Allan Peter Utieng v The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to your family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

There is no argument against an application of these principles to your case. Hence, whilst I note your personal background and needs, they cannot be factors in your mitigation, because they are the very consequences of your own action. You should have considered them before committing the offence. If it is true that you are married, you could have turned to your wife for your sexual needs. Instead, you turned against a young girl in the middle of the night acting in association with others.

There are only two factors in your favour. Firstly, this is your first ever offence. That means you have not been in trouble with the law until this trouble. The other is the fact that, the victim did not sustain any physical injuries apart from you and your gang's sexual intrusion and handling her roughly, as you have in the process of committing the offence. This does not however mean that you left her with no injury at all. Instead, as most rape cases disclose, victims of such offences have long-term ongoing psychological pain and trauma. This is a real problem in our country, because unlike places like Australia, there are no readily available and appropriate medical and psychological services to assist such victims to recover from the terrible ordeals they go under.

With this in mind, I turn to noting the factors in aggravation against you. Firstly, I note again that the offence of rape is on the increase, and that it is a very prevalent offence and in most cases, committed by people of your age and others within the age group 15 years to 25 years. This is despite the increase in the kind of sentences imposed to date. I note there is rightly no dispute by you through counsel that, this is the case. This therefore means that a sentence higher than the ones imposed up to the time of committing the offence in 1999 would be appropriate. The Lawrence Hindimba judgment would be a very useful guide in that regard.

The second factor to note against you is the fact that this was a case of repeated gang rape. I contrast that with a one on one rape and only one act of rape. Incidents of gang rape are on the increase to levels and modes unheard of before. The victim of such an act is forced to have an ongoing nightmare as noted above.

Thirdly, you acted in a breach of an element of trust the victim placed in you as a person of the same church congregation. People who attend the same church regard themselves as brothers and sisters. This follows the Christian Churches teaching that all human beings under Jesus Christ are one and hence the reference or label brothers and sisters. There is never an expectation that a member of one's congregation will rise up and violently attack the other. You acted contrary to that expectation and the teachings of your Church, the Seventh-Day Adventist Church.

Fourthly, you committed the offence in the night. You woke up an innocent sleeping family in the early morning hours of the day of the offence. At this time, sleep is usually at its peak and sweetest. You cared less about that. Further, at about this time, all thinking and law-abiding people remain asleep, except for those people whose duty demands them to be at work and offenders like you. Unless, trouble is expected for whatever reason, most people go off to sleep without staying on guard believing to wake up with everything, their lives and properties in tact. An attack at such times is hence very serious and the offenders deserved to be dealt with severely with a view to deterring you personally and generally other like-minded persons.

Fifthly, you and your gang abducted the victim from her house. As I observed in a number of other cases before and recently during this circuit to Manus, a man's house, irrespective of what type or material it is built of, is his castle. The observations I have made in the forgoing equally apply because a person usually enjoys his sleep in his or her house. A perpetration of an offence at a house is a serious crime and that ought to be also dealt with sternly.

Finally, you denied the charge and that required a trial. That forced the victim to come into Court and face once again her violator. She was in that way forced to tell the Court about your sexual attack of her before total strangers in the Courtroom. Within the PNG culture, it is extremely difficult for a men or a women or a girl or a boy to openly talk about sexual acts in front of total strangers and even relatives of the opposite sex. By your denial, you forced the victim to come into Court and do just that. Fortunately, she was able to testify against you confidently resulting in your conviction.

By your very conduct, you cared less about the fact that the victim is now married and has a family. Forcing her to come to Court and testify against you in relation to your forceful sexual violation of her has the potential unearthing of a very bad memory that might be on its way to some form of burial. This could adversely affect her marriage unless her husband knew of the incident and made a deliberate choice to marry and help her to overcome. Even then, retelling in Court what you and your gang did to her could be of no help.

Your denial of the charge and thereby forcing the victim to come and testify against you is consistent with your failure to find ways and means of showing mercy and express your remorse. Yet, as I noted, you care much about your own position and little or no regard whatsoever for the pain and trouble you brought upon the victim.

A careful examination and weighing of the factors for and against you clearly discloses a case of the factors in aggravation outweighing those in your mitigation. Noting that I have just imposed a sentence of 15 years after a trial in a case of one on one rape in the case of The State v Joe Hangat (oral judgment delivered last week), I consider a sentence between that and 25 years appropriate. Then noting that you committed this offence in 1999, the case that could be of direct guidance to this Court is the Supreme Court judgment in the Lawrence Hindimba case. There the sentence by the Supreme Court was 15 years in a case of one on one rape. Bearing that and all the foregoing in mind, I consider a sentence of 19 years appropriate. Accordingly, I impose a sentence of 19 years against you to be served in hard labour at the Lorengau Correction Service, less the time you have already spent in custody awaiting your trial and decision on sentence.

Lawyers for the State: Public Prosecutor.
Lawyers for the Prisoner: Public Solicitor.