State v Angavia (No 2) [2004] PGNC 184; N2590 (29 April 2004)

N2590

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 256 of 2004

THE STATE

-V-

DONALD ANGAVIA, PAULUS MOI and
CLEMENT SAMOKA
(No. 2)

POPONDETTA: KANDAKASI, J.
2004: 28th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Gang Rape – Breach of trust by boyfriend – First time young offenders – Conviction after trial – Prevalence of offence – Effect of recent amendment to s.347 especially sentence considered – Aggravated rape sentence has to be beyond 15 years - Deterrent sentence called for - Pre-sentence report recommending non-custodial sentence – Victim and guardian not prepared to accept any compensation or non-custodial sentence – Inappropriate to order compensation and impose a non-custodial sentence – 17 years sentence imposed - Criminal Code s. 347.

Cases cited:
The State v. Donald Angavia, Paulus Moi & clement (N0.1)) delivered on 27th of this instant
John Aubuku v. The State [1987] PNGLR 267.
Thomas Waim v. The State, (02/05/97) SC519.
Lawrence Hindemba v. The State (27/10/98) SC593.
The State v. Eddie Peter (No 2) (12/10/01) N2297.
State v. Kunija Osake (22/05/03) N2380.
The State v. Ian Napoleon Setep (18/05/01) SC666.
Public Prosecutor v. Don Hale, (1998) SC564.
Re Application by Anderson Agiru (08/10/01) SC671.
Application of John Mua Nilkare (15/04/97) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Tau Jim Anis & Ors. v. The State, (25/05/00) SC642.
The State v. Irox Winston, (13/03/03) N2347.
The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588
The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 25/03/04) N2567.
The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) N2543.
The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.
Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.
Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported and yet to be numbered judgment delivered on 01/04/04) SCR 07 of 2003.
The State v. Thomas Waim [1995] PNGLR 187.
Bokum Umba v. The State, (Unreported judgment delivered on 02/04/76) SC92.
The State v. Richard Koupa, [1987] PNGLR 208.
The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310.
Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128.
The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419.
The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076.
The State v. Prodie & Steven Akoi (Unreported judgment delivered on 25/03/04) CR No. 1431 of 2002.

Counsel:
P. Kaluwin for the State
P. Kumo for the Accused

28th April 2004.

KANDAKASI, J: On Monday (27/04/04) both of you were found guilty of gang rape under s. 347 of the Criminal Code ("the Code") on 22nd September 2003, here in Popondetta.

The Facts

The evidence and the relevant facts are fully set out in the judgment on verdict (The State v. Donald Angavia, Paulus Moi & clement (N0.1)) delivered on 27th of this instant. However, for the purposes of determining an appropriate sentence for you, I note without limiting the consideration the following facts and factors as found by the Court in the decision on verdict:

• This was a gang rape as opposed to a one on one rape;
• The victim did not suffer any physical injury because she cooperated with you for fear of further injury on her life;
• You committed the offence with the assistance of your friend Donald, who was the victim’s boyfriend and the one who tricked her into thinking she was going to have sexual intercourse with her friend only;
• The victim is not from this province and was a babysitter to one of the teachers at the Popondetta community school.
  

In addition to these facts, I note that, you denied the charges. This forced the victim to come into Court and testify against you. In that way, you forced her to recall the ordeal and bad memories before her assailants and other strangers.

I also note and take into account your respective family and personal backgrounds as set out in your respective pre-sentence reports and as put to the Court by your lawyer. In summary, these are that, this is the first ever offence for the two of you. You are both continuing students in different grades in your respective schools. A long prison term may adversely affect your respective educational paths. You also come from much respected and highly educated parents and families in this province.

Your family and personal backgrounds and your needs will have to be examined and considered in the light of the nature of the offence, its sentencing tariffs and the communities response to it and of course the victim and her relative’s response to the offence against her.

The Offence

Section 347 of the Criminal Code, creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. The offence you committed is an offence against the victim as well as her family and relatives, all young girls, women, and the community in this province and the whole country.

Parliament considered the offence very serious and decided to prohibit it. 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 like that of John Aubuku v. The State [1987] PNGLR 267, have set and elaborated on the relevant sentencing guidelines in this kind of cases. These cases make it clear that, the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape in less serious cases of rape to life imprisonment. In the lower end are cases with no aggravating factors while those on the higher end, have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.

Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State, (02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple 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."

Almost a year after the decision in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. The Court in that case, surveyed some of the cases decided up to the date of the judgment and said:

"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."

In arriving at its decision, 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 kind of penalties imposed. I responded to this calls by imposing 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. That was in The State v. Eddie Peter (No 2) (12/10/01) N2297, in a case of one on one rape. In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. This is so because; usually the question of what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case. Hence, in the exercise of the discretion vested in him or her under s. 19 of the Criminal Code, 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 noted 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 appeared not to serve their intended purposes 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’s case, have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

I then went on to note that, even though the Courts have issued numerous warnings of increases in the sentences, they have failed to follow that through with appropriate sentences. 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) and imposed varying sentences with the maximum at 25 years. Unfortunately, the Supreme Court struck it down to 18 years on the basis, that the sentence imposed by the National Court was a "quantum leap."

I considered the concept of "no quantum leap" 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 of life, except in one case, which I will short mention. 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 decided to impose the term of 17 years as an appropriate pronouncement against the offence in that case. I also decided to impose that term to meet the society’s call for tougher penalties to deter other would be offenders and consequently 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 State v. Eddie Peter (No.2) (supra), there have been no significant increases in the sentences by the National Court. The only exception to that is the judgment by Jalina J in The State v. Kunija Osake (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 eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

The other exception is the imposition of a life sentence by Salika J., which went on appeal to Supreme Court. In that case, the Supreme Court delivered a judgment, which is one of the latest judgments of the Supreme Court on abduction and rape. The judgment is in circulation as The State v. Ian Napoleon Setep (18/05/01) SC666. That was a case of gang abduction and raped at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeated at various locations and finally at a house where she was introduced as the appellant’s wife. The National Court imposed life imprisonment but the Supreme Court on appeal had it reduced to 25 years following the no quantum leap principle in Thomas Waim v. The State (supra). At the same time, it accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment.

In my view, the two National Court judgments cited above does in fact progressively increase the sentences in rape cases. Despite the need for a progressive increase in view of the increase and prevalence of the offence, some National Court judges have been imposing lenient sentences. Recent examples of these are the fully suspended 6 years sentence imposed by Manuhu A.J., which has received much public outcry and the 7 years sentence imposed by Justice Lenalia in Kokopo, which has received an adverse editorial in the National Newspaper.

Whilst, I agree that such an outcry should not automatically, influence a sentencing judge, the judge should nevertheless note that, this is an indication and response by the community to the kind of sentences imposed. The sentencing power the sentencing judges, exercise is a power that belongs to the community and as such they should respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date 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 woman or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence.

In this regard, I note what The Supreme Court in Public Prosecutor v. Don Hale, (1998) SC564, is relevant. There the Supreme Court said:

"The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered."

These principles in my view, in a more practical way acknowledges and allows for an exercise at least in that limited way, by the people themselves their judicial power. The Constitution does acknowledge and affirms in s. 158(1) and elsewhere that the judicial power that the Courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

In subsequent judgments of Supreme Court, as in Tau Jim Anis & Ors. v. The State, (25/05/00) SC642, these principles have been cited with approval. Many other judgments of both the Supreme and the National Courts have adopted and applied these principles. Some of these are my own judgments as in The State v. Irox Winston, (13/03/03) N2347, where I said:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

Bearing this in mind, I imposed a sentence of 15 years on a guilty plea by an adult male offender in aggravating circumstances. That was in the cases of The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588. In that case, the offender a mature single man related to the victim abducted and raped a married woman in the presence of two of the victim’s small children. The offence was committed in a breach of trust situation.

On the same day, I imposed a sentence of 13 years after a short trial against a young first time offender who raped his niece. Apart from the breach of trust as a close relative, there were no other aggravating factors. That was in The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 25/03/04) N2567.

Again, on the same day, in The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) N2543, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respective to a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences where given in view of the different roles each of the offenders played and their ages.

Your Case

In your case, I note your respective personal backgrounds as noted above. However, it is necessary to comment on some of these aspects in particular. In that regard, I note that both of you are first time young offenders. You are continuing in your respective schools and live with your parents here in the township of Popondetta. I will also comment on what you said to the Court in your respective allocutus, particularly saying sorry to the Court, the victim and her relatives, your respective families, the Community and God. You also talked about your education, which will obviously be affected by any term of imprisonment and that you would not commit this or any other offence again. Finally, you asked for the Court’s mercy.

I will consider the last point first. The Court asked whether you were merciful toward your victim at the time of committing the offence. You answered that question in the affirmative. I find this strange when viewed in the context of your action. If indeed you were merciful toward the victim, you could not have raped her, but you did. This clearly shows you did not exercise any mercy toward her. Therefore, this operates against you.

The next related aspect is you saying sorry to the Court and others, including, the victim and her relatives. However, there is no evidence that you paid compensation or offered anything tangible to the victim to show your remorse. There is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244; Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360. On the strength of these authorities, I find that your merely saying sorry means nothing. Accordingly, it is not a factor in your favour.

Turning now to your personal backgrounds and needs as well as that of your family, if need be I note that the law is also clear. I restated that in The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366 in these terms:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

There is no argument against an application of these principles to your case. Hence, whilst I note your personal background and needs, they cannot be factors in your mitigation, because they are the very consequences of your own action.

Moving onto your plea of youthfulness and being a first time offender, I note the position is also clear. This was recently restated by the Supreme Court in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741. There, the Supreme Court endorsed the position taken by both the Supreme and National Courts in The State v. Thomas Waim [1995] PNGLR 187; Bokum Umba v. The State, (Unreported judgment delivered on 02/04/76) SC92; The State v. Richard Amuna Koupa, [1987] PNGLR208; The State v. Kevin Anis & Martin Ningigan,(Supra); The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310 and Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128. These cases say that youth cannot continue to be a factor in mitigation in serious cases like wilful murder, murder, rape and armed robbery. Instead, strong deterrent sentences are required where the offence is prevalent. Youthful offenders should not receive special treatment unless there are exceptional circumstances, which warrant a lesser sentence than the prescribed maximum sentence. This is because the Courts issued more than sufficient warnings to them. Despite that, the category of offenders committing such serious offences, are youthful offenders in the range of 15 to 25 years.

The offence of rape is on the increase, that it is a very prevalent offence and in most cases, committed by people of your age and others within the range of 15 years to 25 years. This is despite the increase in the kind of sentences imposed to date. I note there is rightly no dispute by you through counsel that, this is the case. Given the numerous calls for stiffer penalties throughout the country, Parliament has now intervened and amended in the year 2002, s. 347 to divide the penalty provision for rape in the following terms:

"(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

What this means, in my view, is that, where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because it makes no difference between the previous position and the new provisions.

In your case, this was a gang rape, which also involved some element of breach of trust the victim placed in Donald as her boyfriend and on that day agreeing to have sexual intercourse with him. What you did has the potential of discouraging people from other provinces and or other countries that might be willing to come and provide valuable services such as education to the people of this province. The notion of Oro for Oro developed and pursued by some leaders of this province has not helped this province one bit, the evidence of which we see clearly in the township of Popondetta. Instead, it has helped the province to take a very serious downward trend. Committing an offence against people who take courage amidst counter productive notions like Oro for Oro, worsens the situation has it as the potential of discouraging such persons from coming to this province with their valuable services.

A combined effect of the above considerations, in my view, means no need for a reduction of the sentence you should receive because of your plea of youthfulness and being a first time offender. Therefore, you should receive the sentence warranted by the circumstance of your case, except only to note and to ensure that the sentence you receive is not on the same footing as an adult and or repeat offenders.

In relation to the fact of no physical injury suffered by the by victim, I note that, there is always the risk of continuing psychological problems for victims of sexual offences. I noted that in a number of cases, such as that of The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419, where I said:

"It is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories. Further, as I noted in The State v. Peter Yawoma (Unreported judgment) N2032, even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. This means, victims of such offences are left with no assistance at all."

These factors, in my view, places your case in the second category of rape under the new s. 347 in terms of determining sentence. These therefore means, your sentence has to be beyond 15 years. At the same time, I note that, even if there was no amendment, the circumstances of your case, the sentencing trend both as noted above and the communities call for stiffer penalties, warrants, in my view, a sentence between 15 years and 18 years. I consider in the circumstances of your case, a sentence of 17 years appropriate. This sentence is on par with the one imposed in The State v. Eddie Peter (No 2) (supra) and The State v. Pais Steven Sow (supra) whilst it is lower than the one imposed in The State v. Eki Kondi & Ors (supra) and above the one imposed in The State v. Junior Apen Sibu (No.2) (supra).

I now need to consider whether the whole or part of this sentence needs to be suspended. In this regard, I note there is a pre-sentence report for both of you calling for a non-custodial sentence because of your age and your education. I need not repeat what I have already said in relation to these factors and on the basis of which I would reject the recommendation. There is also a very fundamental reason not to accept the recommendation. The victim and her guardian are opposed to such a sentence. In addition, there is no input from other impartial and respected community leaders. This includes the police who are primarily responsible for maintaining law and order and how the community will be able to arrange for and supervise the compliance of any conditions the Court might decide to impose.

In The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076, I rejected a pre-sentence report’s recommendation for a non-custodial sentence. In doing that, I said:

"In my view, inputs from the deceased relatives as well as the police, especially the police investigating and arresting and or charging officer necessary if a pre-sentencing report is to be considered fair and well balanced and serve the interest of justice. I view this important because it is the relatives of a deceased person or the victims of an offence are the persons who really feel and suffer the lost of a life and or the sufferings that criminal acts bring upon them. They are the ones that demand justice. Thus, unless the courts are able to take into account the kind of punishments these persons wish to see an offender receive, any punishment imposed may not necessarily be justice to them. This may lead to an apprehension of justice not being done and an offender let off lightly.

As for in puts from the police investigating officer, I consider that appropriate and important because they alone will be in a better position to tell the court what kind of a person a prisoner is. That they will do, having regard to whole process of receiving complaints of an offence being committed, investigating into it followed by an arrest of the offender and charging him. They would also be in a better position to say whether the prisoner who is waiting for his sentence is a threat to society and therefore, needs to be lock away or a non-custodial sentence on terms would be appropriate. It would be defeating the whole purpose of law enforcement, if offenders who deserve to be dealt with severely are left of easily based on a pre-sentencing report which highly favours an offender without any inputs from the police and other sectors of the community who have a right or interest in seeing offenders receive a punishment which befits the offence they have committed. It may also be counter productive to send an offender back to the society on say a suspended sentence or probation without knowing whether the police will approve of such sentence and they will be in a position to help police compliance of any terms that may be imposed. Allowing for inputs from the police will also help eliminated the risk of offenders failing to meet any conditions that may be imposed on offenders for letting them out of prison. It will also help encourage better police work for they will come to appreciate that the courts appreciate their work and or the role they play in society."

In this case not only is there no input from the wider and impartial community but there is a separate input from the victim’s side opposing any non-custodial sentence. They also indicate that they will not accept any compensation payment because they say, the scares of the offence you committed will not be easily washed away by any form of compensation.

I have considered the appropriateness of ordering compensation and I have decided against that. This is in view of the unwillingness to receive any compensation on the part of the victim and her guardian. I repeat what I said recently in The State v. Prodie & Steven Akoi (Unreported judgment delivered on 25/03/04) CR No. 1431 of 2002, that:

"It is the victims of a crime that directly and immediately feel and face the effects of a crime against them. It would be most inappropriate to force the victims of a crime to accept a penalty the are very much opposed to because it will add to their hurt more then help them to recover from the effects of the crime and live normal lives.

The notion that a crime is against society is only an indirect effect suffered by society merely because the victims are part of them. Hence, in my view, it is the victims that are better placed to say what kind of penalty will help them to overcome the effect of the crime on them. Accordingly, I am of the view that, the Court should be guided by what the victims prefer with a view to imposing a penalty they prefer unless what they prefer is unconstitutional or is against any other law and the general principles of humanity."

It should now be obvious that, the sentence the Court has decided to impose against you is not open to any suspension. Also, compensation is inappropriate. The only option left therefore, is for you to serve your sentence in custody. I note that you can continue your education whilst in custody through the extension services or CODE. I note that is working at the highest level in Goroka out of the Bihute Correction Service, through which a number of prisoners have graduated from the University of Goroka. Accordingly, I order that, you serve your sentence of 17 years in hard labour less the time you have already spent in custody. I order the issuance forthwith of a warrant of commitment in those terms.
_______________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor