State v Varuko [2002] PGNC 12; N2372 (27 September 2002)

N2372

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 29 of 2002

THE STATE

-V-

JOHN WARKUWO

KOKOPO: Lenalia, J.
2002: 23, 27, September

CRIMINAL LAW – Several indictments – Charges of common assaults – Charges of indecent assaults and rapes – Two charges of common assaults pleaded to – All other charges not guilty pleas – Trial – Criminal Code ss. 335, 347, 349 – (Ch. No. 262).

CRIMINAL LAW – Practice and Procedure – Evidence in totality – Evidence in sexual offences – Corroboration no requirement in law – Corroboration required by practice – Warning on uncorroborated evidence.

CASES CITED:
The following cases are cited:
Mc. Callum -v- Buibui [1975] PNGLR 439
The State -v- Andrew ToVue [1981] PNGLR 12
Peter Townsend -v- The State [1981] PNGLR 8

Charles Deidei -v- The State [1990] PNGLR 458

Chiu Nang Hong -v- Public Prosecutor [1964] 1 WLR 1279
Thomas Wainnin –v- The State (1997) SC519
John Aubuku –v- The State [1987] PNGLR 267

Public Prosecutor –v- Terren Kaveku [1997] PNGLR 110

Mase –v- The State [1991] PNGLR 88
John Sil Kanage –v- Gagorine Yupe and Stephen Tifai [1976] PNGLR 604
The State –v- Peter Kaudik [1987] PNGLR 201
The State –v- Sottie Apusa [1988-89] PNGLR 2170
The State –v- Mitige Neheya [1988-89] PNGLR 2174

Counsel:
L. Rangan, for the State
J. Kaumi, for the Accused

27 September, 2002

DECISION

LENALIA, J. The accused is charged upon three separate indictments. The first indictment contains two charges of common assaults pursuant to s. 335 of the Criminal Code. These charges relate to two acts of assaults committed upon his wife Lynda Bata Warkowo. He pleaded guilty to the first charge only whilst entering a not guilty plea on the second one.

On the second indictment, it contains three distinct charges. The accused pleaded guilty to the common assault charge while denying the two indecent charges upon his youngest daughter Lydia Warkuwo on 28th April, and 18th of August 2001 respectively. The common assault took place on 27th April of last year. These charges are brought pursuant to ss. 335 and 349 of the Code.

The third indictment charge six different charges all relating to his eldest daughter Keto Warkuwo. The first three charges relate to three acts of rape whilst the fourth and fifth charges relate two acts of indecent assault. The final charge relates to a common assault. These charges are brought under ss. 347, 349 and 345 of the Code. The accused pleaded not guilty to all charges in the third indictment.

On closure of the prosecution case, Mr. Kaumi of counsel for the accused made a submission of "no case to answer" on which I ruled on the 26th of August that there were cases for the accused to answer on all the charges on which he had pleaded not guilty. On the instance of both counsels, the matter was stood over to this month’s circuit for the defence case.

The defence case consist of evidence by the accused himself admitting to the two acts of assaults on which he had pleaded guilty to one on his wife and the other upon his youngest daughter Lydia Warkuwo. The accused evidence shows he is married to two wives. With Lynda Warkuwo, he has two children whilst, with his other wife, he has six children. He testified to not having a stable relationship with the victims who have brought upon him the charges for which he is now prosecuted. He denied having assaulted his wife the second time and alleged by the State on 26th of April 2001.

Although, the accused pleaded guilty to one count of common assault upon his youngest on 28th April, 2001 he denied having sexually assaulted her on two occasions. On all assaults on which he pleaded not guilty to the accused kept saying there are no medical reports to substantiate the victims allegations. What is clear from the defence case is that, there was prolonged period of absence from the accused by his wife and the two children who later became victims of physical and sexual abuse as put by the State.

The accused’s evidence in relation to the third indictment and the six charges contained therein were totally denied. On charges of rapes, and sexual assaults the accused said these were deliberate lies put up by the two young victims and their mother for not showing up at the Village Court and Councillor responsible to settle their problems. The problems raised in the accused evidence does not seem to be clear as to what actual problems they may have been facing but it would seem to be marital issues.

The two last defence witnesses, James Emori and Johnson Voa are closely related to the accused. The former is the accused’s son and the later is his blood brother. It is quite surprising to note that at the relevant and material times, these witnesses seemed not to be aware of what was going around in and within the family of the accused. The only offences that would have become obvious to the two witnesses were those related to the assaults, but even Johnson Voa whose house is situated some 6 metres away from the accused’s house did not know anything about the accused alleged brutality. James Emori denied hearing or knowing anything about the alleged offences despite sharing one house with the accused and his family. One can understand that given their close proximity, they would actually know something about the accused and his family but the two witnesses for the defence denied this. I must take their evidence to be self-serving.

At the end of the defence case, I heard the lawyers on their final addresses. Mr. Kaumi of counsel for the accused adopted what he submitted on the no case submission and submitted further that, there was no corroborative evidence to support the evidence by the three victims on the charges on which the accused had pleaded not guilty and urged upon the Court that his client should not be found guilty Mr. Rangan of counsel for the State submitted that the State had proven their case beyond reasonable doubt. Mr. Rangan further submitted that on the charges of rape, if the Court finds otherwise, the accused should be found guilty of alternative charges of incest and the Court should return a verdict of guilty on each charges tried.

In practice there has grown up a rule, which recognises that corroboration is necessary in sexual offences. It is not a requirement in law though. Seven of the nine charges pleaded not guilty to are sexual in nature, the other two are common assaults. On the sexual charges, I must warn myself of the dangers of convicting the accused upon the uncorroborated evidence of the two complainants being his, own daughters: Peter Townsend -v- George Oika [1981] PNGLR 12. Such warnings have been stated and restated in subsequent cases, see also The State -v- Andrew ToVue [1981] PNGLR 8. On the rule of practice and warnings associated with sexual offences, the Supreme Court in Didei -v- The State [1990] PNGLR 458 said that a trial judge must specifically make note and mention of this warning in his transcript and findings.

Keeping the above warning in mind, I now duly remind and warn myself of the dangers of convicting the accused upon uncorroborated evidence of the two young victims and the victims of alleged sexual abused by the accused and I am further warned that, the accused should not be convicted unless there was some evidence to corroborate in some "material particular".

The prosecution case consisted of the mother being the legal wife of the accused and their two young daughters.

There was no reason or reasonable grounds given by the defence as to why the three victims could have manufactured evidence to stage this prosecution. I took Lynda Bata Warkuwo to be a truthful witness so as Lydia Warkuwo. Keto Warkuwo though a little nervous in answering some questions on both in chief and cross-examination, most of her evidence was well presented. As alluded to I have in mind the risk of convicting the accused without corroboration but nevertheless I am more than convinced about the truth of the three complainants evidence.

On the evidence by Lynda Bata Warkuwo, I find she was assaulted many times over by the accused. In the case of Lydia Warkuwo she was assaulted as well as sexually dealt with in the hope by the accused to rape her. In Keto Warkuwo’s case she was raped more than once.

In the common law case of Chiu Nang Hong -v- Public Prosecutor [1964] 1 WLR 1279 the Privy Council said at 1285:

"Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant’s evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships’ view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge’s mind upon the matter should be clearly revealed".

The submission by Mr. Rangan of counsel for the State that in the event that, the Court finds there is evidence to support incest, the Court should find an alternative verdict of incest is totally out of context in terms of s. 541 of the Code. This section stipulates in Subsection (a) to (e) that that can be the case only so long as blood relationship is not an elements. The second proposition in relation to the above section is as expressed in Tapopwa Thomas -v- The State [1997] PNGLR 140 that the applicability of this section is only relevant in so far as there are separate counts on the one indictment. Not only this but the learned authors in the Third Edition of the Criminal Law and Practice of Papua New Guinea (see 460) say that despite the heading, the section only refers to alternative verdicts opn on a charge of unlawful carnal knowledge of an under age girl. See also The State v Kewa Kai [1976] PNGLR 481. I agree with both propositions.

Having said the foregoing, this Court is satisfied beyond reasonable doubt that the accused assaulted his wife as alleged in count 2 of the first indictment. Similarly on the charges of indecent assault pursuant to s. 349 upon victim Lydia Warkuwo, I find the State has proven their cases beyond all reasonable doubt on the two charges on which the accused pleaded not guilty to on the second indictment.

On the third indictment on which Keto Warkuwo is the victim of three counts of rape, two of the indecent assault and one common assault, the victim’s memory in relation to the two acts of rapes in 1990 may have faded as I said in my ruling on the no case submission. The defence used that opportunity to cross-examine Keto in great detail relying on a number of inconsistencies in her statement earlier given to the police. One can understand the reasons for Keto’s fading memory. She was then of tender age and secondly, by process of time and delay in bringing these allegations to prosecution are some factors affecting her recollections. However despite that her recollections on the events and acts of sexual assaults and a common assault together with the later act of rape in 1994 or 1995 seemed to her to be quite vivid.

On the basis of the foregoing analysis of all evidence put before this Court by the State and defence, and having warned myself of the dangers of convicting the accused on what may seem to be uncorroborated evidence of the two young victims but which I find to be corroborated by their mothers evidence such warning as those stated in the aforementioned quoted cases in relation to sexual offences, I make the following pronouncements in relation to each charge in the order of the first, second and third indictment.

On the first indictment on which, the victim is the accused’s wife Lynda Warkuwo. He pleaded guilty to count 1, the sentence was reserved for administration of allocutus and addresses by counsels. On Count 2, I find the State has proven their case beyond reasonable doubt and I must find him guilty. Likewise on the second indictment the accused pleaded guilty to count 1. He pleaded not guilty to the two charges of indecent assaults. I find the accused guilty on each count of sexual assault committed upon victim Lydia Warkuwo as I find the State has proven their case beyond reasonable doubt. I convict him accordingly.

On the third indictment, due to certain inconsistencies in her evidence, I find the State has not proven their case beyond reasonable doubt on Counts 1 and 2. I acquit the accused on those two charges. I however find that the State has proven their case beyond reasonable doubt on Counts 3 for rape, which took place in 1994 or 1995, as I find there was recent complaint made to the mother. But the evidence shows, the accused suppressed the victim and even the mother by threatening to do them harm if they talked about such allegations.

On the same premise, I find that the State has proven their case beyond all reasonable doubt on the last three remaining charges, two of indecent dealing and one common assault. Once more on the two indecent charges, there was recent complaint always to the mother but the accused suppressed the victim by threatening to kill her and even the mother. I find him guilty and convict him accordingly.

The accused is found guilty and convicted accordingly as described in the last three paragraphs of this discussion.

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04 October, 2002
SENTENCE

The accused was found guilty on two counts of common assaults one upon his wife Lynda Bata Warkuwo on the first indictment and upon his daughter Keto Warkuwo on the third indictment. He was also found guilty on four indecent assault charges upon his two daughters Lydia and Keto Warkuwo and a rape charge upon the last mentioned victim. The find of guilty on the rape and indecent assault charge relate to the second and third indictments.

On the prisoner’s address pursuant to s. 593 of the Code the accused said he is very sorry for committing these offences upon the three victims and requested the Count to be lenient with him and impose non-custodial sentences. The personal particulars of the prisoner show some interesting background history of his former career. He is well educated. He commenced working with the then Department of Public Works in 1963 in Mount Hagen. He worked with the Department is now the Department of Works and Supply. He is a married man with two wives. With the first wife he has two children who are victims on these charges while he has ten children from the other one. He has had a previous conviction for a motor traffic offence just last year.

On consideration to what sentences could be imposed on the prisoner for crimes committed upon his own family members, I make the following observation. On the charges of common assaults, the evidence adduced by the State reveals you were very cruel to Lynda Bata being your first wife and the two children. Often the three victims would seek refuge in nearby relatives’ houses. At other occasions they were suppressed to suffer humiliation and frustrations over your acts of common assaults and sexual and indecent behaviour towards your two daughters.

You commenced sexually molesting Keto Warkuwo in her very early and tender age and it might have been well before 1994 and 1995 when the first act of rape was committed upon her. You could not hide your fillings at times when you set around with your wife and the two children in your kitchen you would sit down carelessly exposing your person to both your wife and to the two daughters. You could do that to your wife only but not to Lydia and Keto as they are your blood daughters.

A Pastor by the name of Gamaliel Tavune of the United Church gave character evidence on the prisoner’s behalf. The prisoner assist much in community projects and more particularly, church building activities suggesting that the accused has assisted in terms of building trade. In what way is not clear. Such evidence is on the good side but on the other side, being a Pastor this witness told the truth about the unstable marriage of the accused to Lynda Bata. Pastor Gamaliel simply said he knew of the problems faced by the accused and Lynda Bata and her two children.

I had the benefit of the two counsels addressed the Court on sentence. I would generally agree with comments made by the Supreme Court in the case of Thomas –v- The State (1997) SC519. That in fact was a gang rape in Manus, whereas the circumstances of the instant cases was rape carried out by the accused upon his daughter Keto Warkuwo: In John Aubuku –v- The State [1987] PNGLR 267, the Supreme Court there held that where two or more people involved in raping the prosecutrix, the starting point ought to be 8 years imprisonment.

Considering the few mitigations mentioned in favour of the prisoner on one hand and aggravating factors on the other, an aggravation in the rape charge is that the relationship of the prisoner to Keto. She is and was none other than his own daughter. So as the circumstances in indecent assaults, involving Keto and Lydia.

I was urged by Mr Kaumi of counsel for the prisoner that, the court take into account the totality principle since I have before me a string of offences for which the prisoner shall now be sentenced. The totality principle requires that where in a number of charges a judge or magistrate considers imposing consecutive sentences, a final review of the sentence should be made to ensure that the total is not excessive: Public Prosecutor –v- Terren Kaveku [1997] PNGLR 110. This principle safe guards against the situation where consecutive sentences are imposed by a straightforward addition which can usually lead to the total sentence quite excessive in the whole circumstances: Mase –v- The State [1991] PNGLR 88.

In John Sil Kange –v- Gagorine Yupe and Stephen Tifai [1976] PNGLR 604, the Supreme Court there said that it is incorrect to impose more than two sentences cumulative upon the first. This may happen specially where a number of offences of similar character in a particular short period of time.

On sentence I take into account what was said in favour of the prisoner as mitigations. I take into account the prisoner’s age. He is now 54 years old. I am also required to take regard of the prevailing community perception of relative seriousness of the crimes committed by the prisoner, more particularly the charges of indecent assaults and rape. In the circumstances of his case, the prisoner is not entitled to any concessions as rightly put by Mr Rangan. As well as it is a principal of law that where an accused pleads guilty it is a mitigating factor to be considered on sentence: The State –v- Peter Kaudik [1987] PNGLR 201.

As I have said in my trial on the total evidence when I duly warned myself of the dangers of convicting the prisoner upon the evidence of the two prosecutrix since indecent assault and rape are sexual offences. I remind myself of that warning again stated in the case of McCallum –v- Buibui [1975] PNGLR 439, The State –v- Andrew ToVue [1981] PNGLR 12 and Charles Deidei –v- The State [ 1990] PNGLR 548.

The maximum penalties for the offences charge in the three indictments prescribed by the Criminal Code are, for the offence of common assault an imprisonment term of not more than one year. For the offence of indecent assault the maximum is a term not exceeding two years whilst for rape, the prisoner could be sent to gaol for life imprisonment but subject to the sentencing options available to this Court under s. 19 of the Code.

Some aggravating features of your cases are that, the cases of indecent dealings were sexual abuse conducted upon the two young prosecutrix and those two young victims were none other than your own daughters. Your eldest daughter was raped by none other than the father. You broke the trust the victims reposed on you as their father: The State –v- Sottie Apusa [1988-89] PNGLR 170, The State –v- Mitige Neheya [1988-89] PNGLR 174. You are the one who supposed to support the victims, to provide for their needs in terms of clothing, food, housing and all necessities of life until they were old enough to care and look after themselves and then mid their own business. The Court sentence you into the following manner:

INDICTMENT. 1

Count 1. Sentenced to 6 months imprisonment in hard labour.

Count 2. Sentenced to 6 months imprisonment in hard labour to be served concurrently upon the sentence for Count 1. 6 months.

INDICTMENT. 2

Count 1. Sentenced to 10 months imprisonment in hard labour. To be served concurrently upon the sentence for Count 2 on

Indictment 1. 1 year.

Count 2. Sentenced to 10 months imprisonment in hard labour. To be served concurrently upon the sentenced for count 1, on

Indictment 2. 1 year.

Count 3. Sentenced to 10 months imprisonment in hard labour.

Be served consecutively upon the sentence for Count 2, on

Indictment 2. 1 year 10 months.

INDICTMENT. 3

Counts 1 & 2 (was found not guilty).

Count 3. Sentenced to 7 years imprisonment in hard labour.

Be served consecutively upon the sentence for Count 3 on

Indictment 2. 8 years 10 months.

Count 4. Sentenced to 10 months imprisonment in hard labour. To be

served concurrently upon the sentence for Count 3 on

Indictment 3. 8 years 10 months

Count 5. Sentenced to 4 months imprisonment in hard labour. To be

served consecutively upon the sentence for Count 4 on

Indictment 3. 9 years

Count 6. Sentenced to 3 months imprisonment in hard labour.

Be served concurrently upon the Sentence for Count 5, on

Indictment 3.

The time spent in custody shall be deducted.

The Court suspends 2 years from the total sentence on condition to keep the piece and be of good behaviour for 2 years after his release.

You are accordingly sentenced.

_____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor