State v Nanua [1997] PGNC 148; N1659 (14 November 1997)

Unreported National Court Decisions

N1659

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 254 OF 1997
THE STATE
-VS-
WILLIAM KAPIS NANUA

Kimbe

Batari AJ
14 November 1997

CRIMINAL LAW - Sentence - Rape - Guidelines - Pack rape - Starting point eight years - Aggravating factors - Mitigating factors - Pregnant victim accosted on street at night - Threats with pistol and bush-knife - Sentence of fourteen years and fifteen years concurrent.

Cases Cited

John Aubuku v The State [1987] PNGLR, 267.

James Mora Meaoa v The State (unreported) Supreme Court Judgement No.504.

The State v Kaudik [1987] PNGLR 201.

The accused was found guilty of rape of a pregnant woman following her abduction from a street in Kimbe at night. He was convicted on the two counts of rape charged on the indictment. The following judgment was delivered on sentence.

Counsel

J. Gah, for the State

J. Kaumi, for the accused

14 November 1997

BATARI AJ: The accused was charged with two counts of gang rape of one Joycelyne Bulo Tigu on 3 October, 1996 at Kimbe. He has been found guilty and convicted. The maximum penalty for this offence is life imprisonment. I will now sentence him.

On the night of 2 October, 1996 the victim had watched video away from her house at Laleki Settlement, Kimbe. She was returning home alone around 12.00 mid-night when the defendant and three others accosted her on the street with a pistol and a bush knife. They grabbed and pulled her half-walking, half-running towards some banana patches where she was forced to remove her clothes. The first man put his penis into her mouth before he had sexual intercourse with her. This happened with each member of the gang, taking turns in violating her in the way.

She was again dragged naked from waist, down to the beach and up to KCP premises, past a gravel site and across the main highway to Gigo Community School. The first man took her into a classroom and forced her to suck his penis before he had anal sexual intercourse with her. He turned her around and again violated her. The second man joined the first and lifted her onto a plank where he also violated her. She was again lifted onto a desk-top and raped by the other gang members in turns. At the Community School, there were six in the group from the initial four men. After the last man had violated her, they pulled her legs apart and laughed at her sight under torch lights. I think they were flashing lights at her private parts and making fun of her. This went on until one of them convinced the others to release her. It was around 4.00 am on 3 October, 1996 when she was led back to her relative's house. She opened the door and collapsed from exhaustion. She was about five (5) months pregnant. When she was abducted, she urinated from fright. She was weakened and crying during the ordeal.

I have set out in some details, the facts surrounding the odious assault of the victim to demonstrate the gravity of the charge and conduct of the defendant. These facts become relevant on sentence.

Rape is a serious crime which calls for immediate punitive custodial sentence, except in wholly exceptional cases. The seriousness and prevalence of rape nation-wide have been expressed in a number of ways by the Supreme Courts and the National Courts, in calling for strong punitive sentences against this crime. In John Aubuku v The State, [1987] PNGLR, 267 the Supreme Court stated at p. 268:-

"We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence ... the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated trauma. The woman feels violated and degraded. There are continuing feelings of insecurity, the painful memories, and the fear of venereal disease or pregnancy. Rape is particularly 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."

The Supreme Court in James Mora Meaoa v The State, (unreported) SC NO. 504 in July, 1996 again echoed the seriousness of the crime of rape and called for strong punitive measures. The Court stated at pages 7 to 8:-

"We also agree that the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they on a public road, in the gardens or as here on the coast. We agree that the right of all persons female as well as male not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless of age or background. We restate what was said by Injia, J in State v Penias [1994] PNGLR, 48:-"

"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 women are, after all, human beings just like men. They have rights and opportunities equal to 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, in any place they chose 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 in fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence."

In the case of The State v Kaudik, [1987] PNGLR, 201 and the case of Aubuku v The State, [1987] PNGLR, 267 guide-lines on rape sentencing have been spelt out. I refer to them on my deliberations and adopt those matters as are relevant and applicable on factors going to aggravation and mitigation in sentencing the prisoner before me.

In Aubuku's case, (supra) the prisoner 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 rape her in the cell. He pleaded not guilty. The Supreme Court confirmed the sentence of ten (10) years imposed by the National Court. The case before me did not involve a breach of trust. However, its discussions of the range of sentences for rape cases are relevant.

In Kaudik's case, (supra) the offender and seven others abducted a 17 year old student from the Campus of UNITECH and dragged her whilst threatening her with a knife to a river bed where they systematically had sexual intercourse with her and subjected her to indecent acts over a period of time. The accused, 19 years old pleaded guilty and was sentenced to twelve (12) years. That case was ten (10) years ago.

In Meaoa's case (supra) the appellant was operating a dinghy and the victim, aged 12 years was one of his passengers. The boat capsized and the victim who could not swim was assisted by the appellant to get on shore. He threatened her after he had rescued her and had forceful sexual intercourse with her followed by two others. He was convicted following a trial. His sentence of fourteen (14) years was confirmed by the Supreme Court. The court considered the extra distress to the victim in giving evidence would not entitle him to any discount on sentences. I adopt what the court said at p.9:-

"We also repeat what was said by the Supreme Court in Aubuku v The State (supra).

"The extra distress that giving evidence can cause to a victim means that a plea of guilty perhaps more so than the other cases, should normally result in some reduction from what would otherwise be the appropriate sentence."

The case before me was committed by a number of persons acting together. The victim was abducted and held captive for some 4 hours and over which period she was systematically raped. I consider the following aggravating factors existed:-

(i) &ـ U60; Use of e of weapon - a bush knife and a pistol were used.

(ii) ـ the vicaim was preg pregnant.

(iii) the victim bduct ni hm a stra street.

(iv) & t60; the vict victim was raped a number of times.

(v) the m wasectedurtheual iities and perversioersions.

(vi)>(vi) ; sheeredfered pred physicaysically.

These aggravating factors cor a nce ts subiallyer then the startinarting poig point ofnt of eigh eight (8)t (8) years as suggested in Aubuku's case (supra.)

In mitigation, I take into account your youth. You are aged 19 years. This is your first offence. There was no physical harm to the person of the victim. The injury to her private parts were also not significant despite the number of times she was violated. You are not entitled to any consideration that might have been given to a plea of guilty which would have normally resulted in a reduced term from what might be the appropriate sentence for cases of this nature. Besides those difficulties you spoke of on your own behalf and that of your family members, there is nothing much else to say on your personal background.

I consider that in all the circumstances, this case fall into the most serious category of rape cases. There were a number of you. Initially there were four (4) and two (2) others joined you later, all behaving in sub-human ways, treating the victim like an animal. Decent law abiding persons are appalled and horrified by such crimes of violence as in this case. People are angry and naturally cry-out for tougher laws and punishment. When a woman is violated in this way, her pain and humiliation are also felt by the relatives in close knitted family units as we have in Papua New Guinea. If you have a sister and she was subjected to various forms of sexual perversions and indignities, like what was done to the victim in this case, I think you will understand the anger and deep hurt of the victim and her family members.

The Society which this Court represents cannot allow anti-social behaviours of gangsters like you go unpunished. Deliberate and vicious violence against the female population of this country like in the case before me, deserved the heaviest penalties.

I sentence you to fourteen (14) years on the first count and fifteen (15) years on the second count. I order the sentences to be served concurrently with hard labour. This sentence is reduced by five (5) months you have spent in custody. You will serve fourteen (14) years and seven (7) months.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor