State v Madi [2004] PGNC 160; N2625 (23 June 2004)

N2625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 884 of 2001

THE STATE

v.

THOMAS MADI

Kimbe: Sevua, J
2004: 17th & 23rd June

CRIMINAL LAW – Sentence – Rape – Sentencing principles – Immediate punitive custodial sentence – Aggravating circumstances – Plea for good behaviour bond or probation inappropriate – Custodial sentence appropriate - Sentence of 12 years.

Cases cited:
The State v. Peter Kaudik [1987] PNGLR 201
R v. Billam [1986] 1 WLR 349
John Aubuku v. The State [1987] PNGLR 267
The State v. Rex Lialu [1988-89] PNGLR 449

Counsel:
F.Popeu
O.Oiveka

23rd June 2004

SEVUA, J: The prisoner was convicted of rape on 17th June 2004 following a trial, and sentence was reserved to today. It is now the task of the Court to impose on him the penalty he deserves.

The circumstances in which the rape was committed are these. On the afternoon of 2nd May 2001, the prisoner picked the victim and another female student at Hoskins Secondary School as he was driving towards Kavutu village at Hoskins. After dropping passengers off at Kavutu, he turned around and drove towards Kimbe. At Buluma, the prisoner dropped off the other school girl and then drove on with the victim. They were supposed to have driven to Bolavolo village where the victim comes from, and she would get off there. Instead of driving to Bolavolo village, the prisoner turned into Bialla Highway and told the victim they would go to Bolavolo via Buvussi as he had to tell her parents that he had to drop other students off as well.

On the main Buvussi Highway, the prisoner stopped at Kavui, Section 10 and told the victim they would kiss, however she refused and the prisoner drove on until they stopped again and the prisoner told the victim he wanted to touch her vagina. The prisoner then pushed his hands into the victim’s clothes and into her vagina. After that he came out of the vehicle and walked to the side where the victim was seated, removed her clothes then had sexual intercourse with her without her consent. As it was dark by that time they dressed up and left that area and drove towards the victim’s village in the dark.

At the time of the offence, the victim was aged 18 years and in Grade 10 at Hoskins Secondary School. The accused was a mature married man aged 30 years, and both he and his wife were known to the victim as their villages are close by. The vehicle in which the prisoner was driving that time was a community vehicle, and it appears that he had given lifts to the victim previously to and from her village. The prisoner claimed the victim was her girl friend but I have found that to be a lie. He imposed himself on this young innocent school girl, and lied on oath that she had consented to sexual intercourse. That is a typical lie perpetrated by accused persons who insist on the State proving their guilt beyond reasonable doubt

I have listened to the prisoner during allocutus. He begged the Court for mercy and asked for a good behaviour bond or probation, however I consider that he is not entitled to either a bond or probation, not after making the victim come to Court and relived the traumatic experience she had had. Besides, he is old enough to know that what he did was, not only wrong, but a very serious crime. I must be guided by the sentencing principles in rape cases that have been followed in so many cases and impose a custodial sentence as I see no exceptional circumstances warranting a non – custodial sentence. In that respect I want to refer to the authorities on sentencing in rape cases.

Firstly, the case of The State v. Peter Kaudik [1987] PNGLR 201. The Court held that:

"The offence of rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances."

In that case the Court adopted and applied the principles in the English case of R v. Billam [1986] 1 WLR 349; which I intend to cite as well because I consider that these principles apply to all rape cases whether or not aggravating circumstances exist. At 205 the Court cited the following:

" Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim................. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and the victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value."

In fact, almost a month after The State v. Kaudik (supra), the Supreme Court in John Aubuku v. The State [1987] PNGLR 267; adopted and applied R v. Bilam (supra) and approved and followed Kaudik.

In both cases, the Courts followed the suggested guidelines in R v. Billam (supra) where a rape committed by an adult without any aggravating or mitigating factors, five (5) years is the suggested starting point in a contested case. This guideline has been held to be outdated and no longer suitable to the circumstances of the country today because of the prevalence of this crime. See pp 268-269 in Aubuku (supra).

In applying some of these principles to the present case, I am of the view that the prisoner was in a position of trust and responsibility towards the victim. Instead of driving the victim to her village when it was getting dark, the prisoner decided to divert to another location because of his preconceived idea. The victim was a young student and to some extent, the prisoner was responsible for taking her safely to her village after school. What the prisoner did was tantamount to abduction and this is an aggravating factor. It is also my view that the fact that the prisoner had diverted to Bialla Road instead of going to Bolavolo village to drop the victim and that it was going to evening was because he had planned to rape the victim. This is also an aggravating factor. Another circumstance of aggravation is that the victim was a young girl of 18 years and a Grade 10 student.

One of the principles in Aubuku is that where any of the circumstances of aggravation are present, the sentence should be substantially higher than the suggested starting point of 8 years
See p 269. It is my view therefore that there are aggravating features in this case which warrant a substantially higher sentence.

The prisoner has referred to a customary settlement in which he paid the sum of K1, 500.00 as compensation to the victim and her family. He produced a statutory declaration signed by one Fr Gabriel Pinda on 9th June 2004, which states that there had been reconciliation between the parties. No date is given as to the time this reconciliation took place and the statement is very brief. It does not give any details as to such settlement and since it was signed on the day the trial commenced I am not sure whether to accept it as a mitigating factor. In any event, the Court must emphasise that the reconciliation is not a means of escaping punishment for a heinous crime like rape. The purpose of compensation is to restore peace and harmony between parties and within the community. It is not intended to exculpate an offender from his criminal liability, and besides it is not a penalty. We ought not to allow the payment of compensation to confuse the minds of the people because it can be misinterpreted as the rich and wealthy paying their way out of serious crimes thereby escaping punishment.

My views are fortified by what Amet, J (as he then was) said in The State v. Rex Lialu
[1988-89] PNGLR 449 at 452 - 453:

"I should stress categorically that compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will and should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever from or size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment."

The prisoner also asked the Court to consider the damage caused to his house by the relatives of the victim. He said they stole the sum of K2, 700.00 in cash and destroyed his house including kitchen utensils. He further asked the Court to consider that his child died from shock 1½ weeks after destruction of his house as a result of shock suffered at the time his house was attacked and damaged.

He is 34 years old and married with 6 children whose age range from 1 year to 10 years. Being married means he has a wife who can satisfy his sexual desires within the perimeters of love and a loving relationship. He did not need to rape this young girl to satisfy his sexual desires. He comes from Mai village in Hoskins, and he is a member of the Roman Catholic Church. He was educated to Grade 8 and did not continue. Previously he was employed at the Dami Research Station from 2000 to 2002.

I have taken all these matters into account. However, whilst I do not condone the fact that people take the law into their own hands, the prisoner had himself to blame for all his predicaments. If he had not committed this crime nothing would have befallen him. What he suffered was a natural consequence of his crime. He cast the dice and he lost so he cannot complain about destruction of his properties. In any case, it is a matter that police should have looked into and lay charges against those concerned.

Despite all these, it is my view that, as rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances, the prisoner must be punished for his crime. There are no exceptional circumstances in this case to warrant a punishment other than a custodial sentence. The community at large is complaining about the violation of young girls and women. Our women folks and young girls are no longer safe on the streets and highways and byways because of men like this prisoner. The women of this country and the leaders are calling for the death penalty for rape. Recently, a Member of Parliament called for the death penalty to be imposed on rapists. In some countries in the world rapists are hung. I am sure that if this case was tried in the Philippines, the "Manila Hanging Judge" would hang the prisoner. These matters demonstrate that the community is fed up with the crime of rape. They are all signs that the community has had enough or rape and the Courts must be responsive to this kind of calls. Young girls and women have the same right as men do under the Constitution, therefore they should be treated with respect and not be sexually abused and violated to the extent that they feel insecure and that the law does not protect them.

Therefore the sentence of this Court must reflect the community’s utter revulsion of this kind of sexual violation of young girls and women. It must reflect some of the sentiments that have been expressed in this case as in many other rape cases.

I sentence the prisoner to 12 years imprisonment in hard labour less 3 months pre-trial custody period leaving the balance of 11 years 9 months. I further order that the prisoner’s cash bail of K200.00 be refunded.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor