State v Penias [1994] PGNC 49; N1229 (26 May 1994)

N1229

PAPUA NEW GUINEA
[In the National Court of Justice]

THE STATE

V

KENNETH PENIAS

ALOTAU: INJIA, AJ.
1994: 26th MAY

SENTENCE

Criminal Law - Sentence - guilty plea to one count of rape aggravating features inter alia, prisoner masked and armed with a bushknife abducted victim and held her captive for two (2) hours in the bush - appropriate sentence - 9 years.

Cases Cited:
John Aubuku v. The State [1987] PNGLR 267.

C. Sambua, for the State
D. Sakumai, for the Prisoner

26th May 1994

INJIA, AJ: The prisoner pleaded guilty to one count of rape contrary to S.347 of the Criminal Code Ch. No. 262 ("the Code"). The maximum penalty for this offence is life imprisonment.

The circumstances of the offence, and these are not contested by the prisoner, are set out in the statement of the victim one Miss Glenda Maro, and her companion Miss Rose Danny. On Thursday 24.09.92 at about 2.00pm the two girls were walking alone towards their own village of Unai. When they reached the Relabana Creek, the prisoner came from behind and grabbed Glenda and dragged her into the nearby bush. At that time the prisoner wore a mask over his face and held a bushknife. Glenda screamed and struggled to set herself free. In the process, she cut the palm of her right hand with the bushknife. Meanwhile Miss Rose got frightened and ran away to seek help. All this time she struggled and begged him to let her go but he refused. The prisoner continued to drag her further into the bush and stopped about 200m from the main road. There they stayed for a while and later he pulled her to another spot near the mangroves. By this time the time was about 4.00pm. He asked her three times to have sex with him, all of which she refused. When she refused, he grabbed her by her "T" Shirt and pushed her to the ground. She tried to scream but he grabbed her by the throat causing her to gasp for air. He then released his grip on her throat and told her "If you want me to tie you up and leave you here, then do that (sic)". He undressed his own jean and then pushed her skirt up to her waist, removed her panty, used his legs to force her two legs and had sexual intercourse with her once. In the process of penetration, she felt "sharp pains". After the one act of intercourse, he took her back to Begasi Village, and left her there after giving her a black "T" Shirt to wear to replace the one she wore which was stained with blood from the cut on her right hand. At Begasi village, she reported the matter to a Council/Committee man.

On Friday 25.09.92, she was taken to Budoya Sub-Health Centre where she was examined by Sister Anna Kogeta. She found that Glenda appeared to be conscious and alert. She also observed that these were no tears or bleeding from the vagina. She found that there were bruises on her neck and a wound on her right hand.

On 29 March 1993, the prisoner was apprehended by Alotau Police and interviewed. He chose to remain silent.

The victim was a young woman and aged about 19 years old.

The prisoner comes from Du'una Village, Esala District. According to the Antecedent Report dated 22.03.93, he was then aged about 20 years old and married with one child who was two years old and his wife was expecting her second child. It is also stated in that report that he left school after only doing Grade 3 at Salamo Community in 1987 and that he had been employed by a company called Salcon for two years and by Ulabo Logging Company for one year. In Court, according to his lawyer, he is now aged 21 years old and married with two children who are aged 8 years old and 2 years old respectively. His lawyer says he was employed by Salcon for one (1) year but left this employment to get married. If my calculation is correct, he would have got married in 1984/85, allowing for the period of nine (9) months pregnancy period of his wife's first child. That means that he got married when he was only 11 years old. In my view, this does not make any sense. There are some other information in his antecedent report which are inconsistent with his instructions to his lawyer. It is the duty of counsel to check these information and to put to the Court informations which made sense and reasonable. In my view, having observed his appearance in Court, he appears to be much older, most probably in his mid 20's.

The prisoner has a prior conviction for a break, enter and stealing offence. In 1988 he was convicted by the Alotau District Court (Grade 5) and sentenced to six (6) months imprisonment. He was aged 17 years old at that time he was sentence.

The guidelines for sentencing in rape cases were set out by the Supreme Court in the case of John Aubuku v. The State [1987] PNGLR 267. In my view, the facts of this call fall into the third category of cases in which a person abducts a victim and holds her captive and rapes her in which case a starting point is eight (8) years. It is rather forcefully submitted by the defence counsel that this case cannot be categorised as a case of abduction because the State has not pleaded abduction as an aggravating factor in the indictment as required by S.528(2) of the Code. As such it is submitted the State cannot rely on abduction as an aggravating factor. After all, it is submitted, abduction of women is a separate offence under the Code. In my view, this submission is misconceived. Section 347 does not specify abduction as an aggravating factor which warrants a higher sentence so as to require the State to plead it separately in the indictment: C.f. S.386 of the Code dealing with robbery simplicite and aggravated robbery. The word "abduction" referred to in John Aubuku v. The State refers to the ordinary meaning of abduction which means to besiege the woman and take her away by force and hold her captive. It explains the circumstances in which the woman's consent is obtained by force and hence, an aggravating factor.

In John Aubuku v. The State, the Supreme Court pointed out some eight aggravating factors which if present, would warrant a higher sentence than the starting point. Four of those aggravating factors are present in this case. First, there was violence or force over and above that was necessary to commit the rape. She was dragged into the bush with her hand bleeding, held captive for some two hours and tussled to the ground when she refused to have sex with him and squeezed her throat causing her to gasp for air. All this was unnecessary. She could have been easily taken aside close to the road, forced her to the ground and raped in a matter of some minutes. Secondly, he used a bushknife repeatedly to threaten her. He also used the bushknife in such reckless way that the victim's right hand was cut causing it to bleed. Thirdly, the rape was carefully planned and the plan executed with determination. He was armed and wore a mask over his face and followed the two girls for some time before he dragged the victim into the bush. It seems that he was masked throughout the episode. Fourthly, he has a prior conviction for an offence involving property. He has a conviction for break enter and stealing which in my view is a crime of violence.

However, there is some features in this case which reduces the seriousness of the offence. It took some two hours to make up his mind to actually have sex with her. He showed some restraint. Also, there is no evidence of any serious physical injury apart from the bushknife wound.

In John Aubuku v. The State the offender was a policeman and the victim was a suspect in his custody at the police station. He was in a position of trust towards her. He used a knife to frighten her and raped her in the cell. He pleaded not guilty. The Supreme Court confirmed a sentence of ten (10) years.

In the instant case, the prisoner has pleaded guilty. He also has some previous work record and a family of his own. He expressed remorse in open court and offered to pay compensation of one (1) pig valued at K200.00. I will take all these factors into account as mitigating factors.

Despite the existence of the aforementioned mitigating factors, the seriousness of the offence outweighs the mitigating factors. Rape is also a prevalent offence in this country. I cannot describe the seriousness and prevalence of this offence any better than the Supreme Court said in John Aubuku's case at page 268:-

"We believe that rape is a very prevalent offence in Papua New Guinea at this time. 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 trauma and psychological trauma. The woman feels violated and degraded. There are continuing feelings of insecurity, the painful memories, and the fear of veneral 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."

Further to the above, I would add some of my own remarks. Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex and sex alone to men like the prisoner who prey upon them and rape them. But woman are after all human beings just like them. They have equal rights and opportunities as men as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups of their own, in any place they choose to be at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities in the villages and remote islands and in small towns and centres who once enjoyed freedom and tranquillity are living under fear and feel restricted. That is why the Supreme Court in John Aubuku's case said that people who commit rape must be punished with a strong punitive sentence. Therefore, the sentence I will impose on the prisoner is intended to punish him and deter others.

Taking into account all the factors I have referred to, I consider that a sentence of nine (9) years is appropriate. I will deduct the period of 14 months he has already spent in custody. He will serve the remaining period of seven (7) years and ten (10) months.

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Lawyer for the State: Sir Kina Bona: PUBLIC PROSECUTOR
Lawyer for the Prisoner: PUBLIC SOLICITOR