State v Kapilo [2002] PGNC 115; N2221 (18 April 2002)

N2221

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 708 OF 2001

THE STATE

-V-

PATRICK KAPILO

POPONDETTA : JALINA, J.
15TH & 18TH APRIL 2002

CRIMINAL LAW – Rape – Sentence – Consent obtained through fear of harm by evil spirits – Student victim aged 20 years – No physical or mental harm – Plea of guilty – Offender has prior conviction for offence of dishonesty – Criminal Code s.347

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. This case has been heard using Defence Counsel’s file, as the Court had no file. Hence his name being absent from the National Court Remand list prepared by the Central Registry in Waigani, Port Moresby. There are quite a number of other cases similar to this one. There are also a number of other cases where the Court has a file as well as depositions but both counsel having none at all. Some of the accused both on remand and bail have been waiting for trial since 1997 and 1998.

This raises questions as to what the court and lawyers have been doing in Popondetta during all those previous circuits. It seems to me that this state of affairs has arisen due to lack of concern towards speedy administration of justice to those charged with crimes and a further lack of concern for the need for early deposition of cases. To put everything in a nutshell, there seems to me to be a "don’t care" attitude exhibited by everyone who are involved in bringing cases of accuseds who had their committals completed for trial in the National Court.

Let me now return to the case now before me against the accused Patrick Kapilo who has pleaded guilty to one count of rape upon a 20 year old Grade 12 student in Popondetta on 15th October 2000. He had apparently obtained her consent after instilling fear in her of harm by evil spirits whose powers he had told her he possessed or could summon at any time he wanted. The power of evil spirits that he said he possessed would enable her to obtain large sums of money from the bank. The Medical Report of examination carried out on the victim does not reveal any serious injuries apart from some bleeding in her vagina upon being touched in the genital area nor does it reveal her suffering from any psychological harm.

The maximum penalty for rape is life imprisonment under s.347 of the Criminal Code subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code.

I repeat what I have said when sentencing offenders in the past for rape that rape is a crime of violence and like other offences of violence it must be dealt with sternly and decisively if any impact is to be had towards reducing if not completely stamping out this despicable act that offends against one of the most sacred parts of a woman’s body. Sexual gratification is to be had in the most intimate way and with the element of love being always present as intended by God when he created a man and a woman in the form of Adam and Eve our ancestors. Sexual gratifications obtained by a man in a way that exhibits the absence of love not only offends and undermines a woman of her dignity as a human being but also offends God.

Sentencing guidelines for rape were set by the Supreme Court in John Aubuku –v- The State [1987] PNGLR 267 but a subsequent Supreme Court bench with whose views I fully agree and adopt said 10 years later in Thomas Waim –v- The State [1997] Unreported SC519:

"Those cases were decided 10 years ago, and there has been an escalation in the prevalence and seriousness of the commission of rapes and multiple gang rapes over the period. Thus, 12 years for gang rape in our respectful opinion, inadequate and inappropriate. Some recent decisions of the National Court have properly reflected the community’s concern and imposed sentences of 14, 15 and 16 years."

In Aubuku’s case, a sentence of 5 years was suggested for rape committed by an adult without any aggravating or mitigating factors. However, it went on to say that if aggravating factors such as the young age of the victim or that rape was carefully planned, then the sentence should be substantially higher than the suggested starting point. But again this was more than 10 years ago. In fact it is now almost 15 years since Aubuku’s case was decided so sentences should be expected to be increased substantially bearing in mind the prevalence of offences of sexual violence especially against females.

In his statement on the allocutus he did not say anything regarding sentence but handed to the Court a written statement. I have noted in that statement that in seeking a lenient sentence he has expressed remorse to the Court, his own family, the victim’s family, to the community and this nation. He has further stated that he used to support the victim financially and he would continue to do so when he leaves prison.

He has said something similar including their correspondence by letter, that he supported her with school fees and pocket money in the sum of about K7,000.00. If that is the case then it does not follow that he had to frighten her with evil spirits to obtain her consent. Her consent to having sex with him would have been readily forthcoming. I am of the opinion that his statement about supporting her is just too good to be true. I do not place much weight on it.

His lawyer has also sought leniency by relying on mitigating factors such as his plea of guilty, his expression of remorse, his large family and the victim now being a student at the University of Papua New Guinea and living a normal life. Mr. N’dranoh also relied on ownership by his client of substantial properties such as a Coaster 25-Seater PMV bus, a 15-Seater bus, a trade store and 8 hectares of coffee. The prisoner also had K68,000.00 bank loan to repay. In the absence of independent evidence verifying such properties being owned by the prisoner, I consider them to be mere assertions by him. If they are in fact true, then I would have considered them to have become factors which would have hindered him from engaging in the activities that he did which amounted to sexual intercourse through false pretence. I would have also thought that if he did have substantial properties as he asserted then why did he have to believe in evil spirits to deliver large sums of money from a bank?

This case has a number of aggravating factors. The first one is his prior conviction for false pretences which was an offence of dishonesty. The offence herein was committed through dishonest means namely creating a fear in the victim that she would be destroyed by evil spirits if she did not permit the prisoner to do what he intended to on her.

Secondly, there is an element of careful planning before he achieved his goal. This is clear from her evidence/statement that he continually asked her to copy out certain things from old newspapers and acted like a sly old fox by approaching her when others were not around in the house.

The statement from the victim’s younger sister, 16-year old Saina Seseva also shows that he tried to have sex with her while she was asleep on 17th October 2000 between 11 pm and 12 midnight which was about 2 days after he had sex with the victim.

In all the circumstances of this case, bearing in mind the prevalence of violent offences against females, I am inclined to the view that the sentencing guidelines in Aubuku’s case are out of date by almost 15 years. I would consider that for a sentence to act as a deterrent to not only this prisoner but to others who wish to commit the crime even employing methods this prisoner did, a sentence of 10 years imprisonment in hard labour should be imposed which I do. I deduct from that sentence the 1 year, 5 months and 1 week he has spent in custody which leaves a period of 8 years, 6 months and 3 weeks he has to serve in hard labour.

To ensure that he is visited by his wife and children and other relatives, I order that he be transferred to the Bihute Corrective Institution at Goroka.

____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor