State v Balai [1981] PGNC 54; N362(L) (11 December 1981)

N362(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MANGA BALAI & 2 OTHERS

Waigani: Kapi J
9-11 December 1981

KAPI, J: You have all pleaded guilty to a charge of raping a young nurse aged about 16.

This is one of the most serious offence. It carries a maximum penalty of life imprisonment.

I consider your case as serious because it is a pack rape.

It appears from evidence in the depositions that you asked the victim and two other girls to accompany you to a neighbouring village to attend a party. The girls willingly agreed to come with you. This was at night time. However, you had other ideas. On the way to the village you decided to play with the girls. This resulted in the other two girls successfully getting away and you trapped the victim. The victim was helpless. You then set out to have sexual intercourse against her will. She did not consent. She put up a fight. She was courageous. However, you overpowered her. It appears from her evidence that she struggled all the way with all of you.

She was seriously injured during the incident. The Medical report shows –

(a) Hymen torn through

(b) Including perineum tear 2 centimeters long

(c) Bleeding and sperm overflow

(d) Bruising of vagina

She was shocked and had pains all over her body. She had headache and bleeding from the nose.

I can gain some indication of the degree of violence and the pain suffered by the victim from all these injuries. In fact she had to take further medical treatment for several days after the rape.

Another consideration which leads me to view this case seriously is the fact that the victim is a young girl and in no way provoked you to commit this offence.

In your favour, I have taken into account that you have pleaded guilty. In a rape case such as yours, this has a particular significance in that it saves the victim from all the embarrassment and frustration of having to recount what must have been a very painful experience.

I have also distinguished your case from the types of pack-rape cases where the accused persons attacked an innocent victim who has no connection with them at all. In this case, even though you did not know these girls well, they were in your company. I must not over-emphasise this because on the other hand, girls must not be lured into situations where they can be raped. Girls must feel free to go out with boys without having to be raped.

All of you are young. It is difficult to establish your exact ages.

However, with the help of counsel, I have estimated that –

Manga Balai	-	aged 15
Honba Koga	-	aged 15
Koga Gabi	-	aged 17

Your age has been pleaded in mitigation.

In considering the alternatives open to me under s.19 of the Code there are two broad categories of sentence under which you can be dealt with. They are the custodial and the non-custodial measures. In considering this, the circumstances of this case call for a custodial sentence. The fact that you are young does not deter me from this.

In considering what you did, I do not consider that your actions are any less serious simply because you are young. It makes no difference that an adult commits the offence.

However, I do consider your ages important in considering the length of sentence you should receive.

I agree with the approach of the majority judgment in Public Prosecutor v. Clement Maki and Tom Kasen (Unreported judgment of the Supreme Court dated 7th August 1981) SC 205. That case involved a charge of Break and Enter and Steal, however, the general principles set out on punishment of youthful offenders are applicable here. Rehabilitation of youthful offenders must be carefully considered in every case within the context of the other principles of sentence and the circumstances of each case.

Where rehabilitation can be achieved in an appropriate case, a court may approach it in a number of ways. It may consider that a youthful offender should not be subjected to a long custodial sentence and should be given a shorter custodial sentence. The principle behind this approach would be to avoid being influenced by criminal elements that exist in prison.

The same may be achieved by imposing the appropriate sentence in all the circumstances regardless of age and then consider whether a part of the sentence should be suspended under s.19 (f) of the Code having regard to the age. In this regard I adopt the words of Miles J. in SC 205 -

"on the other hand it seems to me a perfectly proper procedure for a sentencing judge in a suitable case - no matter where he happens to be sitting - to proceed as the Chief Justice did in the present case: that is if he feels that there is some chance of rehabilitation on the part of the offender, then the offender ought to be given the chance of rehabilitation on the part of the offender, then the offender ought to be given the chance of showing it over an appropriate period of time after release from a relatively short portion of a term imprisonment."

In this case I adopt the latter procedure. I would impose a sentence of 4 years 9 months (5 years effective) in all the circumstances.

However, having regard to your ages and good background, you should be given an opportunity, after serving a substantial part of your sentence, to show that you will not break any law of this country during the balance of your sentence.

I am satisfied that each of you did not lead a criminal life up to the commission of this offence and you should be given the opportunity during the balance of your sentence to make amends.

I will suspend the rest of your sentence after serving 3 years on the condition that you enter into an oral recognizance in accordance with s.19 (f) of the Code.

(Each of them agreed and entered into oral recognizance).

Solicitor for State: M. L. Gavara-Nanu, Public Prosecutor.
Counsel: Mr. Mosoro & Mr. R. Auka
Solicitor for Accused: A. Amet, Public Solicitor.
Counsel: Mr. Koaru