State v Bou [1996] PGNC 20; N1530 (8 August 1996)

Unreported National Court Decisions

N1530

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1752 OF 1996
THE STATE
v
TOGEY BOU

Waigani

Batari AJ
8 August 1996

CRIMINAL LAW - Sentence - Rape - Guidelines - Aggravating factors - Mitigating factors -

CRIMINAL LAW - Sentence - Rape - Police Officer raping 13 year old complainant in Sexual Offences Squad Office - Sentence of 8 years.

Cases Cited:

John Aubuku v The State [1987] PNGLR 267

James Meaoa v The State SC 405 (unreported)

The State v Peter Kaudik [1987] PNGLR 201

The State v John Wai (unreported)

Sentence

Following the conviction of the accused on one count of rape, the following reasons were delivered on sentence.

Counsel:

L Maru for the State

M Apie’e for the Accused

8 August 1996

BATARI AJ: I have to sentence the prisoner following my verdict on his guilt and conviction on the rape charge. The baacts for purpose of e of sentencing are that, the victim had initially laid a complaint of rape against another person, towards nd of 1994. In February, 1995 a further complaint was made to the police concerning an alle alleged interference with the prosecutrix by the alleged rapist. Thsoner, a CID member atta attached to the Sexual Offences Squad based in Boroko Police Station was the investigator of both complaints. On March 3 1995 the prisbrer brought the prosecutrix to the Police Station purportedly to obtain her statement. They were accompanied by a lady friend of the prosecutrix. At Boroko PoStation, he tohe told other ladyait outside side side while he went alone into the Sexual Offences Squad General Office with the prosecutrix and locked the.&#16ere was no-one else present in the office. 160; He made sexual ces toes to her and whnd when she resisted, he slapped her and forced her onto the floor where he raped her. The act of sexual course wrse was also precipitated by threats of bodily harmnst the prosecutrix. 160; The medicadence obtaiobtained shortly after the incident confirmed presence of spermatozoa and crackshe lower part of her vaginaagina due to forceful penetration. She di suffer any other pher physical injury.

Under s. 347 of the Criminal Code Act, a person convicted of rape may be sentenced to life imprisonment. This mearliament considersiders thme of rape as one of the mohe most serious and has set a maximum sentence which next to the death penalty, is the highest. A diionarer under s.19 of 9 of the Criminal Code however means eans under proper considerations of sentencing principles, a lesser penalt be imposed.

The prisoner has pleaded leniency in his allocutus and through his lawy lawyer. I have also considered and taken into account his personal and family background. He is 36s old and has serv served in the Force for 15 years. fficer in-e spoke highly ohly of his work performance and said he is a likeable worker and and loving father to his young children afe.&#I accept that hist his 15 years in the Police Force bespeaks of good character and stnd steady employment record. I also consihat following wing his conviction, he has more or less lost his professional career. The effecthis on him and hand hiily wsadly be devastating. But that&#8217ma a matter tter that he should have considered wred when he set out on his criminal path.& I take into account also that the girl did not suffer any any other physical injury besides those noted by the doctor.

The prosecutrix on the other hand was 13 years at the time of the incident. I accept her age as beinsiconsistent with my observation of her in the witness box. Shesmall and slightly buil built. r tender age, she was forc forced to recount in publict the prisoner did to her after he denied the allegations.&ons. She was cy traumatised by d by re-living in detail, what she went th. Atend of all tall the evid evidence when I found her story convin that does nots not help the prisoner when I come to scing.

The girl becambecame most vulnerable when interviewed alone. She young girl girl and tand the prisoner was a 36 year old CIicer. She had every rery right to trust him as a policeman particularly as he was investigating an initial rape complaint she hde against another person.&son. The ner was a person in auin authority, a policeman and a person in a position of trust. He breachet fiduciary rela relationship. findings the prisoner wasr was the only member of the Sexual Offences Squad on duty on thein question. He had the whole officeims himself at least for the most part of the more morning. He ed to take advantage ofge of the situation and the vulnerability of the girl. He pretended to o a statemtatement from her in the CID office as part of hisstigation of her complaint. She obliI think,&#16,&#160 because she ved and trusterusted the success of her complaint depeon her co-operation, with tith the prisoner. Unknown to her, he was merely using his position to satisfy his own sexual lust.

The preservation andection of a female’s universal rights and human dignidignity have been stressed time and again by this court. For my partdopt the Supremupreme Court position in re-affirming that any female, young or old who happens to be alone or together, be they e road, on the street, in their homes, in the gardens or as here, in the police station aren are entitled to protection of the law. Men should not feel or believe they are able to take advantage of any girl wherever they find them. The Constitution speakarlyearly of respect for the inherent dignity of all people and this extends to the female population regardless of age or backg. This freedom of all persons, female as well as male, from unlawful assault must be t be clearly re-stated by the Courts. Seees Mora Meaoa v The Stae State, unreported Supreme Court Judgment No. SC 504.

Rape is a serious crime which calls for imme punitive custodial sentence. is case, rape is committeditted by an adult. In ; In John Aubukhe StateState [1987] PNGLR 267, the starting point is 5 years imprisonment in a contested case without aggravating or mitigating factors. Where a person wmmittpe ispe is in a position of responsibility towards thes the victim, the starting point should be 8 years. In Aubuku’e, a eman eman appealed against his sentence of 10 years for rape. Tctim was a ms a married wied woman taken into custody at Balice Station on a stabbing charge. Tpellant took the woman ouan out of the cells and and into the office purportedly for questg and there raped her.&#160 He threa her with a knife.nife. The Appt denied the offencffence and was convicted after a trial.

The Supreme Court confirmed the sentence of 10 years as the case involved “a breach of trust” as an aggravating fain sexual offences. I60; In the recent case ofse of James Mora Meaoa v. The State, handed down last month, the Supreme Court confirmed a sentence of 14 years where a young girl of 13 years was raped by persons who were in a position of responsibility towards her. The Supreme Court alsod thed that the age and vulnerability of the victim, and the fact that the girl was made to re-live the experience she went through are matters to be taken into account against the prisoner.

There has also been calls for stiffer sentences in rape cases by the National Court in recent years. In The State v John Unreponreported) His Honour, Sevua J. suggested that the guidelines in Aubuku’s case should be reviewed. His Honour also red to theo the case of Thee v Peter Kaudik [1987] PNGLR 201 and remonstrated the fact fact that seven years after the Court in Aubuku and Kaudik imposed r sens, the crime rime is still very prevalent in Papua Newa New Guinea.

It is now apparent that sentences in rape must increa160; There have been sufficient warnings that the crime of rape will be dealt with more stee sternly by heavier sentences. Howethe basic principles oles of sentence which I remind myself is that each case must be decided on its own merit.

This caselved a breach of trust as an aggravating factor. The young age e girl and tand the exhe extra distress she was caused in giving evidence are also factors that weigh heavily against the accused. (See Aubuku v The State (supra).

In all the circnces of this case, the pers personal circumstances and background of the prisoner and circumstances of his crime, I impose a sentence years imprisonment in hard labour.

I order that thet the prisoner be detained to serve his sentence at a CIS other than Bomana in the National Capital District or Buimo in the Morobe Province.

(This sentence was re-called and the prisoner re-sentenced to 8 years imprisonment IHL in a separate judgment).

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor