N995

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

POS

Rabaul
Jalina J

2-3 July 1991

CRIMINAL LAW - Sentence - Unnatural offence - Sodomy - By one prisoner upon another - Deterrent punishment called for - Custodial sentence of four years - Criminal Code (Ch No 262), s 210.

On conviction for carnal knowledge against the order of nature contrary to s 210 of the Criminal Code (Ch No 262) committed by one prisoner upon another in prison, where the offender was a village man aged 20 years,

Held

That in the circumstances, a custodial sentence of four years in hard labour was appropriate.

Observations on the need for deterrent punishment for the offence of sodomy committed in prison.

R v Howie and Hill [1978] Qd R 386 at 387, adopted and applied.

Cases Cited

R v Howie and Hill [1978] Qd R 386.
Secretary for Law v Kabua Dewake [1975] PNGLR 100.

Sentence

This was a judgment on sentence for an unnatural offence committed by one prisoner upon another prisoner inside a prison.

Counsel

S Madana, for the State.
T Tamusio, for the accused.

3 July 1991

JALINA J: You have been found guilty of having carnal knowledge against the order of nature of the person specified in the indictment. You are aged twenty years, single and come from Tabaia Village in the Morobe Province where your parents are still alive and live. You are from a family of three children of which you are the eldest. You came to the East New Britain Province in 1988 and apart from six months employment as a labourer at a plantation at Kerevat, you have not been employed since.

When asked if you had anything to tell the Court regarding punishment you said that you would accept whatever punishment this Court imposed on you. Your lawyer has asked me to consider the nine months and three weeks you have been in custody as sufficient punishment and release you. He did not make any other submission on the appropriate length of sentence in view of the fact that the maximum sentence for this offence is fourteen years imprisonment.

This offence occurred in a prison. It did not occur outside between two willing parties. It happened in a prison where you had been there earlier and established your standing and from the evidence given at trial it is clear that you and others threatened the victim into submission. The victim was not in a place where he could freely exercise his will.

Whilst there was no evidence at trial for the purposes of sentence acts of sodomy are being committed at the Kerevat Corrective Institution and have been going on for some time, there is certainly evidence that this victim suffered the indignity of being sodomised by at least four prisoners and this appears to have happened soon after the victim was admitted to the Kerevat Corrective Institution as is evident from the statement of Mathew Gregory who saw the victim on the night of 3 September 1990 in the toilet and thought that the victim was mentally affected.

This kind of behaviour must be stopped. It is the behaviour of animals. Where it happens in a prison the courts must do everything to discourage such practices. In R v Howie and Hill [1978] Qd R 386, a case involving an offence of sodomy by one prisoner upon another prisoner, the Queensland Court of Criminal Appeal in considering an appeal by the Attorney-General against the inadequacy of sentence of six months and increasing it to five years said (at 387):

"The court takes the most serious view of the offence of sodomy committed in those circumstances. It is an offence which, when committed in such circumstances, is uncommonly difficult to prove, principally because of the fear induced in the victims when they have to remain in the same prison as those about whom they complain to the authorities of this kind of conduct. It is a heinous offence committed upon an unwilling victim because of his helplessness in the situation in which this young man found himself. One of the respondents was aged 18, the other was aged 21, and the victim’s age was 19. Because of these considerations, the court has come to the conclusion that we must correct the sentence imposed below by replacing it with one which will emphasise need for deterrent punishment for this kind of offence. Such an offence, committed in these circumstances, in a prison, upon an unwilling victim, is one which, above all, calls for the imposition of deterrent punishment."

In Papua New Guinea, in May 1975, the pre-independence Full Court of the Supreme Court in Secretary for Law v Kabua Dewake [1975] PNGLR 100 substituted twelve months imprisonment in hard labour for four months for sodomy committed by an adult on a fourteen-year-old boy. But that was outside a prison. They were not prisoners. I think that a higher sentence is necessary as a deterrent in these circumstances. I propose to adopt the above remarks of the Queensland Court of Criminal Appeal and in doing so consider that a custodial sentence is necessary. I consider that in the circumstances four years imprisonment in hard labour is appropriate. I deduct the nine months three weeks so you have been in custody so you will have to serve another three years two months and one week.

Sentences of four years IHL

_____________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.