State v Sow [2004] PGNC 181; N2588 (25 March 2004)

N2588

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 723 of 2003

THE STATE

-V-

PAIS STEVEN SOW

VANIMO: KANDAKASI, J.
2004: 16th and 25th March

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Past sentences not deterring sexual offences –Need for stiffer penalties – Sentencing discretion under s. 19 of the Criminal Code – No expressed statutory prohibition against "quantum leaps" or "disparity of sentences between co-accused – A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case – Criminal Code s. 19

CRIMINAL LAW – Sentence – Rape of married woman in view of own small children – Offence committed against known person – Breach of de facto trust – Prevalence of offence – Past sentences not deterring other would be offenders – Guilty plea – First time offender - 15 years sentence imposed Criminal Code s. 347

Cases cited:
James Mora Meaoa v. The State [1996] PNGLR 280.
The State v. Joseph Ulakua (Unreported judgment delivered on 23/05/02) N2240.
John Aubuku v. The State [1987] PNGLR 267.
Thomas Waim v. The State (Unreported judgment delivered on 02/05/97) SC519.
Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593.
The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.
The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.
The State v. Otto Paulus Unreported judgment delivered on (22/05/02) N2241.

Counsel:
F.K. Popeu for the State
D. Kari for the Accused

25th March 2004.

KANDAKASI, J: On Tuesday, 16th March 2004, you pleaded guilty to one charge of rape contrary to section 347 of Criminal Code. The Court then heard you and your lawyer as well as the lawyer for the State on the kind of sentence the Court should give you.

Arguments

Your lawyer submitted that, your case is not a worse case of rape, as it was a case of one on one rape as opposed to a gang rape. However, he rightly conceded that it is a serious offence and it calls for a custodial sentence and left it to the discretion of the Court to arrive at an appropriate sentence that reflects your guilty plea and that, this is your first ever offence. The State on the other hand pointed out that, you committed the offence in circumstance that calls for a severe penalty because this was not rape of a stranger and that the offence was committed in view of the victim’s two little children.

Facts

In order to determine an appropriate sentence for you, it is necessary to consider the circumstances in which you committed the offence or the relevant facts. The facts are straightforward.

On Friday 28th February 2003, the victim, a Cecilia Balthazar sat on a log facing her family house at the Warapaul camp at about 10:00am. It was a pay week and her husband had gone to Vanimo town to collect his pay and do some shopping. The victim was there with her two children, one a baby. As she was there, you came from her back on her right side, grabbed her on her shoulder, and started to drag her. She shouted saying, "Pais holim mi yia" (Pais is holding me) and immediately thought of her two children.

The victim took her eldest child and carried her on her right shoulder and her baby on her laplap sling. This made her helpless. She took her children and went underneath a house near her own. You followed them there and grabbed the victim again. She shouted aloud but no one came to her help. You dragged her across a road and into the nearby bushes. She continued to struggle with you but you over powered and threw her with her children on the grass. At that time, the children started to cry and she tried to stand up but you pushed her down on the ground again. You then proceeded to remove your short and she could see your erected penis. Thereafter you went down on her, lifted her skirt. The victim tried to close her legs, as she did not wear a pants and realizing that something bad could happen to her. However, you held onto her two legs and opened them and she could feel pain in them. You then pushed your penis into her vagina. She pleaded with you to let her go but you continued to push your penis in and out of her vagina until you had satisfied yourself and came to a stop. You then escaped from the scene. All of these happened while the two children stood watching and crying.

The victim got her children, went back to her house, washed herself and then, got her string bag and went to town looking for her husband. She found her husband in town and she reported the incident to her husband, who reported the matter to police.

Later your parents paid a sum of K150.00 to prevent trouble from erupting. Eventually, police arrested you and charged you with the rape of the victim.

The Offence

Section 347 of the Criminal Code, creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. What you did to the victim is an offence not only against her, her family and relatives but also against all young girls, women, and the community in this province and the whole country of Papua New Guinea. There is already danger out there in the streets and highways of our beautiful country because of people like you. Therefore, it is very important that parents, relatives, friends, wantoks and people living in the same locality help look after and protect our women, girls and children. It follows therefore that, when a crime is committed against another, by a wantok, friend, parent, relative or someone living in the same community, it is very serious because our sense of belonging and security is under attack.

Indeed, the Supreme Court acknowledged that position and confirmed a sentence of 14 years in James Mora Meaoa v. The State [1996] PNGLR 280. The Court there held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that, positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers.

In your case, the victim, according to your record of interview with the police, was a wantok. Then from the rest of the evidence on file, it seems you lived in the same camp. Therefore, your relationship was much closer than the relationship in the case cited. She was a part of your family, if not your community, as much as you were. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal satisfaction that could last for only a few minutes.

Not only that, you committed the offence in view of the victim’s own children. As I said in The State v. Joseph Ulakua (Unreported judgment delivered on 23/05/02) N2250, "violence produces violence". There can be no doubt that the children will remember as long as they live what you did to their mother. They may never forgive themselves for not being in a position to help their mother. There is therefore the risk that, they might become violent because of the violence you introduced to them.

Parliament in appreciating the seriousness of the offence of rape has on behalf of the people, prohibited such conduct. It did so by enacting s. 347 of the Criminal Code and prescribed a maximum penalty of life imprisonment. A number of Supreme Court decisions have elaborated on the relevant sentencing guidelines in this kind of cases. The much-celebrated case of John Aubuku v. The State [1987] PNGLR 267, is an example. These cases make it clear that the offence of rape is a serious crime and it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. Sentences range from 5 years for rape by an adult without any aggravating or mitigating features, to life imprisonment where there are aggravating features, such as perverseness, mental disorders or other serious aggravating factors.

Subsequent cases, consistently applied these principles but with variations especially on the suggested sentences. In Thomas Waim v. The State (Unreported judgment delivered on 02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple gang rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:

"This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed."

Later, the Supreme Court in Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. In so doing, it surveyed some of the cases decided up to the date of the judgment and said these:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

The Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. The rape was committed in the presence of the victim’s schoolmates who ran away.

This sentence was in 1998 and the offence of rape has not decreased since then. Instead, it has been on the increase and the society has been calling for increases in the penalty.

Noting these concerns, I imposed a sentence of 17 years for a rape of a young pupil in breach of a de factor trust with some violence and threat after a trial in The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297. In arriving at that sentence, I noted that, the sentences in the past-decided cases are only guides. An appropriate sentence for each subsequent case is usually based on their particular circumstances. In the exercise of the discretion vested in him or her, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.

Further, I note that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. I attributed this increase in part, to the kind of the sentences imposed up to then, and opined that, the past sentences appear not to serve their intended purpose of deterring other would be offenders. This therefore calls, for a serious re-examination of the kind of sentences imposed to date. In that regard, I noted that, the Supreme Court in Lawrence Hindemba v. The State, (supra), did echo that need. I then observed, that the kind of sentences that have been imposed, since even Lawrence Hindemba have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexual offences.

I then went on to note that, despite the giving of numerous warnings of increases in sentences, there has been no meaningful sentence reflective of that warning up to that time. My brother, Justice Sevua did try to meaningfully review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra), by imposing a sentence totaling 25 years. Unfortunately, the Supreme Court struck it down to 18 years because the Court thought the sentence imposed by the National Court was a "quantum leap."

I considered the concept of "no quantum leap" in the Eddie Peter No. 2 case and noted that, there was no expressed legislative prohibition against "quantum leaps." Instead, Parliament after having considered all things, prescribed the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter, a range. However, the judges have considered it appropriate to start as low as 5 years (see John Aubuku’s) and are yet to impose the maximum prescribed penalty. In the meantime, this serious offence against society is on the increase. In the circumstances, I expressed the view that it is:

"... [I]nappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

Bearing these in mind, I have impose the term of 17 years as an appropriate pronouncement against the offence in the Eddie Peter No. 2 case. I have also decided to impose that term to meet the society’s call for tougher penalties to deter other would be offenders and consequently help restore the safety of our girls and women, both on and off the streets and in all manner of relationships.

Since my judgment in the Eddie Peter (No 2) case, there has been no significant increase in the sentences. The only exception to that is the judgment by Jalina J in The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380. In that case, his Honour imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an 11 year old girl, in breach of trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stronger sentence than what has been imposed to that in similar cases. This is necessary for a number of reasons. Firstly, the Courts have given sufficient warning of an increase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that, it is a serious violation of a women or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence. Finally, the Courts exercise a power that belongs to the community, who expect the Courts to act as they themselves would, but within the constraints of the Constitution.

Your Case

In your case, I note in addition to your other personal backgrounds that you are single and unemployed. This is your first ever offence. This means, this is the first time you have broken the law and appeared in a Court of law. I find these factors in your favour.

Another factor in your favour is the fact that, you have pleaded guilty to the charge. This spared the victim the trouble of coming into Court and reliving the bad memories of what you have done to her. That also saved this Court and the State time and money it could have incurred to secure a conviction against you.

In addition to the above factors, I note that, your parents have paid K150.00 in compensation. This payment was to avoid further trouble from erupting between your family and that of the victims. In any case, you did not make this payment. There is no evidence that you are required to repay this amount to your parents. As it has been noted elsewhere, the consequences of an offender’s offence, is his or hers to bear alone, unless the parents or others have contributed to the commission of the offence and benefited from the offence. In the circumstances, it appears this was a payment by your parents for their protection after you committed the offence and not in a way to mitigate your punishment.

These factors are however, outweighed by the factors that operated against you. The first is the fact that, rape is not only a violent offence against women and girls but it is also a serious offence against the community and or the nation as it goes against the good conscious of normal law-abiding people.

Closely connected to the first, is the other factor that the offence of rape is a prevalent offence. As such, it calls for a server penalty in an endeavour to send a massage to like-minded persons that, the sentences in rape cases are going to seriously increase to reflect the seriousness of the offence.

Thirdly, and more importantly, this offence was against a mother who was with her two little children. You proceeded to deal with their mother in a most violent manner in their full view. The evidence does not reveal that you showed some restraint because of the presence of the children. Instead, you proceeded to violate their mother as if they were not there. As I noted earlier, violence produces violence. As such, you have created the risk in the children that, they might themselves grow into violent persons because of the violence you demonstrated at a very critical part of their life. People tend to remember things happening to them when they were small children. There is no evidence before this Court that eliminates that risk.

Fourthly, you committed the offence against your own wantok or a relative. As I said before, commission of an offence against a known person amounts to a breach of trust, because it is not ordinarily expected that, persons one knows would turn around and commit an offence, such as rape against him or her. There is a certain level of trust and confidence that, members of a family, relatives, community or an area would protect and come to the aid of one of their members when he or she is in trouble. Acting against such a confidence or trust amount to a serious breach because it begins to eat away in that which holds families, communities and a nation together.

Finally, you committed the offence against a married woman. There is no evidence of what has become of her relationship with the husband. Nevertheless, as I note in The State v. Otto Paulus (Unreported judgment delivered on 22/05/02) N2241, the victim will live with a long-term psychological scare, which could interfere with her marriage life.

Taking all of these factors and principles into account, I am of the view that, a sentence beyond 10 years, but closure to 17 years would be appropriate. Accordingly, I impose a sentence of 15 years less the 1 year three weeks you have already spent in custody. I order that you serve the balance of 14 years and one week in hard labour at the Vanimo Correctional Service.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor