State v Kuku [1986] PGNC 10; N551(S) (15 May 1986)

N551(S)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V.

JOSEPH KAL KUKU

Madang: Wilson J
14-15 May 1986

CRIMINAL LAW - SENTENCE - RAPE AGGRAVATING FACTORS - WORSE CASE CATEGORY - INDIVIDUAL FACTORS RECEIVE LITTLE WEIGHT

REASONS FOR SENTENCE

WILSON J: During the course of your trial on the charge of rape you changed your plea of not guilty to one of guilty.

You were one of the five (5) men who on the 17 October 1985 broke into the house of the prosecutrix (victim) late at night and raped her. It was a pack rape. Your gang was armed with a shotgun and an axe. The victim was at home with her small baby, her sister and others managed to escape with the other children. The victim was stripped and the gun was pointed at her to make her submit to the gross indecency of being raped, by each of you. During all of this time she was not only terrorised and degraded and in fear of her life, she was also terrified for her baby. She held that baby close to her while you and other men raped her.

It is hard to express the revulsion and disgust that such an incident evokes. The crime of rape is rightly viewed with the utmost seriousness and concern by the community. It is an assault of the most degrading type. The surrounding circumstances of this case place it I believe in the most serious category of rape offences.

You say that you and the others raped this women because you had seen her around, you liked her, but she had always told you to leave her alone. Your motive for this crime was base. You desired this woman and you were angry that she did not like you. She had an absolute right to spurn you. She has her own child, you have no right to disregard her basic right to live free from such abuse.

The Constitution of this country acknowledges the basic right of every person to the security of their person and the protection of the law. All men must realise that rape is a crime that the Court will treat with the utmost severity.

The victim is a human being. Your behaviour is that of an animal. You know right from wrong and you now must bear your punishment, the punishment society demands for such a violent and barbaric offence. The victim was in her house and she was entitled to feel secure. You invaded this security and participated in a horrible and cowardly crime.

In cases of such seriousness, with so many aggravating factors I do not consider that the Court can take into account individual factors. The only matter I could give some weight to is that you are 17 years of age. You say you were not the leader but you were part of the gang and you did rape the victim. You had the opportunity to desist.

It is clear from the deposition of Garang Lewa that you were not just a follower. You had questioned him that afternoon about the identity of the victim and whether she was married. You were told that she was married with a child and that she was living with her sister while her husband was in Goroka on business. You knew she was vulnerable. You then led the others to her house that night and it was you, who called out, "Garang, are you there" - he did not respond but he saw you break in. You handed the axe to the man carrying the gun to help the break-in. It is apparent that you assumed a major part in the whole of the events. This was a sustained, premeditated and determinedly executed offence.

By changing your plea during the trial you at least saved the victim the shame and trauma of recounting these terrible events.

Even bearing in mind your age I consider that I must impose a sentence that will deter others and reflect the community abhorrence of such activity. The Parliament has seen fit to provide substantial penalties for crimes of violence such as this to ensure that the people will come to learn that violence cannot be tolerated in any organised society and that those who offend will be dealt with sternly. Hopefully, in this way the Court will play its part in reducing the incidence of violence.

You are sentenced to 12 years in hard labour. I take into account the six (6) months you have served. You have 11 1/2 years to serve.

In many other countries government has enacted laws whereby the victims of serious assault can obtain statutory compensation, unfortunately at this time there is no such provision in Papua New Guinea. I believe that cases such as this one demonstrate that such a system would at least go some way to alleviate the effect of such a terrible crime on the victim. I would hope that our legislators and policy makers would give urgent consideration to the suitability of a system of criminal injuries for the innocent victims of serious assaults. I believe that this present case provides ample evidence of the justification for the introduction of such a scheme which should not be beyond the resources of this country to provide.

Lawyer for State: Public Prosecutors Office
Counsel: Rafuname Auka
Lawyer for Defendant: Public Solicitors Office
Counsel: Mathew Konido