State v Sibu (No 2) [2004] PGNC 201; N2567 (25 March 2004)

N2567

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 of 2003

THE STATE

-V-

JUNIOR APEN SIBU (No.2)

VANIMO: KANDAKASI, J.
2004: 10th and 25th March

CRIMINAL LAW - Sentence – Rape of 10 year old girl – Breach of trust – Conviction after trial – No remorse – First time young offender - Criminal Code ss. 347(1) and Sexual offences Against Children Act s. 2.

Cases cited:
James Mora Meaoa v. The State [1996] PNGLR 280.
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.
The State v. Kunija Osake(22/05/03) N2380.
The State v. Pais Steven Sow(23/03/03) N2588.

Counsels:
K . Popeu for the State
D. Kari for the Prisoner

25th March 2004

KANDAKASI J: This Court found you guilty on one charge of raping a 10 year old female (named) at Musu here in Vanimo on the 24th of March 2003.

The facts are fully setout in the judgment on verdict. For the purposes of sentencing, I note the following facts are relevant:

• You persuaded a group of children including the victim to go and collect dry coconuts with you.
• On return, you let the other children go and grabbed the victim, and shut her mouth with your hand
• You then took her into the bush and raped her.
• She suffered no physical injuries except for absence of her hymen.
• You are related to the victim as an uncle.
  

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, children and girls. 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.[1] 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 was a niece to you. Then from the rest of the evidence on file, it seems you lived in the same village. 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 only a few minutes.

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,[2] 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.

These principles have been consistently applied in many subsequent cases with variations especially on the suggested sentences. In Thomas Waim v. The State,[3] 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."

Subsequently, the Supreme Court in Lawrence Hindemba v. The State,[4] 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 schoolgirl 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).[5] 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 appeared 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 that have been imposed to date. I noted that the Supreme Court in, Lawrence Hindemba v. The State,[6] 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 sexually related offences.

I then went on to note that, even though warnings were given of an increase in the kind of sentences imposed, no meaningful sentence reflective of that was imposed 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,[7] by imposing a sentence totalling 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. 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 decided to impose the term of 17 years as an appropriate pronouncement against the offence in this case, The State v Eddie Peter No. 2. 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, 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),[8] 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.[9] 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.

Apart from these two cases, the National Court has been continuously imposing sentences as low as the fully suspended 6 years sentence imposed by Manuhu AJ and the 7 years sentence imposed by Justice Lenalia in Rabaul, which has received an adverse editorial in the National Newspaper last week. 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 warnings 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.

Just this week, here in Vanimo, I imposed a sentence of 15 years, less time already spent in custody awaiting trial on guilty plea. This was in the case of The State v. Pais Steven Sow[10]. That was a case of rape by a young man against a married woman who was with her two children, who witnessed what was happening to the mother. It was in a breach of de-factor trust as the prisoner and the victim were wantoks, living in the same village.

Your Case

In your case, I note in addition to your other personal background 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 this factor in your favour.

Secondly, you did not use any offensive weapons to secure the rape on the victim. Also, she did not suffer any physical injuries, although her hymen got ruptured prematurely.

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 offense of rape is a prevalent offence. As such, it calls for a severe penalty in an endeavour to send the message to like minded persons that, the sentences in rape cases are going to be seriously increased to reflect the seriousness of the offence.

Thirdly, and more importantly, this offence was against a small girl by an older boy. She was only 10 years old whilst you were 16 years old. So you were much order than her.

Fourthly, you committed the offence against 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 into that which holds the families, communities and a nation together.

Taking all of these factors and principles into account, I am of the view that, a sentence between 10 and 15 years would be appropriate. Accordingly, I impose a sentence of 13 years, less the period you have already spent in custody and order that you serve the balance of that sentence in hard labour.
______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor

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^[1] [1996] PNGLR 280.
^[2] [1987] PNGLR 267.
^[3] (02/05/97) SC519.
^[4] (27/10/98) SC593.
^[5] (12/10/01) N2297.
^[6] Ibid 5.
^[7] Op Cit n 4.
^[8] Ibid.
^[9] (22/05/03) N2380.
^[10] (23/03/03) N2588.