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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 261 of 2004
THE STATE
GARRY SASOROPA
JOHN AREMEIKO and
MATHEW MELTON
(No. 2)
POPONDETTA: KANDAKASI, J.
2004: 28th and 29th April
DECISION ON SENTENCE
CRIMINAL LAW - Sentence – Gang Rape of girlfriend and relative – Repeated acts of rape - Conviction after trial – Two first time offenders – One with prior conviction – Pre-sentence report recommending compensation and community based sentence – No prove of having means to pay – Wholly suspended sentence in appropriate but part custodial and part non-custodial in line with community wish on conditions appropriate – Varying sentences of 25 and 22 years with 8 years suspended on strict conditions imposed - Criminal Code ss.19 and 347.
Cases cited:
The State v. Paulus Moi & Clement Samoka (Unreported judgment delivered on 29/04/04) CR No. 256 of 2004.
John Aubuku v. The State [1987] PNGLR 267.
In 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.
Ian Napoleon Setep v. The State Ian Napoleon (Unreported judgment delivered on 18/05/01) SC666.
The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.
Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC56.
Re Application by Anderson Agiru (Unreported judgment delivered on 08/10/01) SC671.
Application of John Mua Nilkare (Unreported judgment delivered on 15/04/97) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Tau Jim Anis & Ors. v. The State, (Unreported judgment delivered on 25/05/00) SC642.
The State v. Irox Winston, (Unreported judgment delivered on 13/03/03) N2347.
The State v. Pais Steven Sow (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003.
The State v. Junior Apen Simbu (No. 2) (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO.1450 of 2003.
The State v. Eki Kondi & 4 Ors. (No. 2) (Unreported judgment delivered on 26/03/04) N2543.
The State v. Paul Yepe (No.2) (Unreported judgment delivered on 26/03/04) CR 97 of 1998.
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 Amuna 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.
In The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076.
Counsel:
P. Kaluwin for the State
P. Kumo for the Accused
29th April, 2004
KANDAKASI J: The Court found you three men guilty on a charge of rape committed on 8th November 2003 at Ahora village, here in the Oro Province. After your conviction, the Court asked you to address it on your sentence. All of you said sorry to the Court, the victim and her relatives, your relatives, the community and God. You also said you will not repeat the offence and asked for mercy of the Court.
The Facts
The evidence and the relevant facts are fully set out in the judgment on verdict (The State v. Garry Sasoropa, Mathew Melton and John Atimeiko (No.1)) delivered on the 27th of this instant. However, for the purposes of determining an appropriate sentence for you, I note the following facts and factors as found by the Court in the decision on verdict relevant:
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 you put her through before her assailants and other strangers. It also wasted the Court’s time in running a trial when you had no good basis to deny the charge against you.
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 Garry and Mathew but is the second time for John, who has a prior conviction for being in possession of dangerous drugs. You are all villagers and come from the Ahora village here in the Oro Province. Garry, you have completed grade six (6) while, John completed grade eight (8) and Mathew has been to grade one (1) only. Your lawyer says Garry, you are 17 years old, John 20 years old and Mathew 16 years old. These are contrary to my view that, you could be older than what you claim, in the absence of any birth certificate. I will therefore proceed on the basis that you are little older than what has been submitted.
These factors will have to be examined and considered in the light of the nature of the offence, its sentencing tariffs and the community’s response to it and of course the victim and her relative’s response to the offence against her. I start that process with the offence and its sentencing trend and tariffs.
The Offence
In the decision, I have just handed down this morning in the matter of The State v. Paulus Moi & Clement Samoka (Unreported judgment delivered on 29/04/04) CR No. 256 of 2004, I have fully discussed the nature of the offence, the sentencing trend and tariffs. I will therefore repeat what I said in that case.
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 and life imprisonment in serious cases. In the lower end are cases with no aggravating factors while those on the higher end have factors in aggravation, 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, (Unreported judgment delivered on 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, (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. 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) (Unreported judgment delivered on 12/10/01) N2297. It was 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 each 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). He imposed varying sentences with the highest of 25 years sentence. 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 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 except for the National Court judgment in the case of Ian Napoleon Setep v. The State Ian Napoleon (Unreported judgment delivered on 18/05/01) SC666.
In the meantime, I noted that this serious offence against society is on the increase. In the circumstances, I expressed the view in the Eddie Peter (No. 2) (supra) case 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 in that case, a term of 17 years as an appropriate pronouncement against the offence. 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 has been no significant increase in the sentences by the National Court. 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 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 (supra). That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant’s wife. The National Court imposed the maximum sentence of 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 rape cases require progressive increases in the sentences rather than jumping from a term of years to life imprisonment in view of the prevalence of the offence.
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 accept that such an outcry should not influence the decision of the Court, the Court should nevertheless note that, this is an indication and response by the community to the kind of sentences imposed. The duty is now on the Court to 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. 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.
In these regard, I note what the Supreme Court in Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC56, said 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 the least in that limited way, by the people themselves of 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 (Unreported judgment delivered on 08/10/01) SC671 and Application of John Mua Nilkare (Unreported judgment delivered on 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, (Unreported judgment delivered on 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, (Unreported judgment delivered on 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 and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003. In that case, the offender a mature single man abducted and raped a married woman in the presence of two of the victim’s small children. The victim and the prisoner were relatives. Therefore, the offence was committed in a breach of trust situation.
On the same day as the above, 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 Simbu (No. 2) (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO.1450 of 2003.
Again, on the same day, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively, against two others who were involved in a gang abduction and rape. They were armed and they forcefully abducted a young girl, who they specifically targeted. Several repeated acts of rape were committed at various locations. The gang exposed her to further sexual attacks by others, which in fact occurred, by taking her clothes away and causing her to walk naked. The varying sentences where given in view of the different roles each played and their ages. That was in The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 26/03/04) N2543.
Finally, today in The State v. Paulus Moi & Clement Samoka (supra) I imposed a sentence of 17 years for a single act of gang rape by two young boys with some breach of trust by their friend who made it possible for them to commit the offence.
Sentence in Your Case
In your case, I note your respective personal backgrounds as noted above. In particular, I note that Garry and Mathew, you have no prior convictions but John does. You are not of the same age. Further, I note that Mathew played a leading role in the attack and invasion of the privacy of the victim. It is therefore, necessary to consider these factors separately. But, before I do that, I note that the law does allow for a different treatment of co-offenders on account of differences in say the role they played in the commission of the offence, their antecedent and other relevant factors.
I restated the relevant principles and or authority to do that in the recent case of The State v. Paul Yepei (No.2) (Unreported judgment delivered on 26/03/04) CR No. 97 of 1998, in these terms:
"In the case of The State v Tony Pandau Hahuahoru (No.2)... I discussed the parity principle and made the following remarks after referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen; ... Goli Golu v The State ... and Andrew Uramani & Ors v The State:...
‘A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them.’
Therefore, I will treat each of you separately, when it comes to determining the actual sentence for you.
Let me comment firstly on your plea for mercy. The Court asked whether you were merciful toward your victim at the time of committing the offence. You answered that question in the affirmative. This contradicts with what you did. You repeatedly raped a relative, a fellow villager and therefore a person known to you. You caused her to walk naked before you and then took turns in raping her. Where is the display of mercy, I ask given this fact? To my mind, this clearly shows you did not exercise any mercy toward her at all. Instead, you went on enjoying yourself much to the pain and agony of the victim. She is going to bear that for the rest of her life.
The next related aspect is you saying sorry to the Court and others including the victim and her relatives. I repeat what I said in The State v. Paulus Moi & Clement Samoka (supra). 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. Based on these authorities, I find that, you 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 judgement 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 offenders 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 submissions, 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, particularly for Garry and Mathew, 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 and yet to be numbered judgment delivered on 01/04/04) SCR 07 of 2003 and discussed that in The State v. Paulus Moi & Clement Samoka (supra). In that discussion, I pointed out that, 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] PNGLR 208; 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 mitigating factor in serious cases like wilful 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 term of the prescribed maximum sentence. This is because, of the repeated warnings of stiffer penalties for such group of offenders who commit serious offences like, murder, rape and robbery. Nevertheless, despite theses warnings, the category of offenders committing such serious offences, are youthful offenders in the range of 15 to 25 years.
Further, I pointed out that, the offence of rape is on the increase and that it is a very prevalent offence and in most cases committed by people of your age and others within the range of 14 years to 25 years. This is despite the increase in the kind of sentences imposed. 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."
I expressed the view already in the case of The State v. Paulus Moi & Clement Samoka (supra) as to the meaning and effect of this amendment. There I said:
"[W]here a rape case is not aggravated, it attracts a sentence of up to 15 years. However, where there are aggravating factors, 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."
Bearing this in mind, I find in your case as I did in The State v. Paulus Moi & Clement Samoka (supra), that this was a gang rape, which also involved some element of breach of trust the victim placed in you as boyfriend and sister in-law for Garry, a cousin for Mathew and an uncle for John. This makes the commission of the offence by you three men in the way you did very serious. This is because, as I said in the course of submission, there is already so much danger for our women, girls and children in the streets. Therefore, the village and the family unit and relations are the only place where our women, girls and children could turn to for their protection. Hence, a commission of an offence against a member of one’s own community, village, family and other close relations destroys the remainder of any sense of security and hope for living. It also sends a wrong signal to outsiders that the chances of people like you attacking them are far greater. Therefore, they should not come to this province to help it to develop. I repeat my observation that a concept "Oro for Oro" developed and pursued by some leaders of this province has caused this province to go backwards as that discouraged people with skills and knowledge from outside the province from coming to help develop the province. Thus, the commission of the kind of offence you committed in the particular setting of your case has the potential of contributing to a destruction of the province to a greater deal, as it has the potential of preventing other people with ability to help develop the province from coming out of fear over theirs and their families’ security.
If we consider your pleas for mercy and youthfulness in the light of the effects of your crime on the community in addition to the warnings and the prevalence of the offence, your pleas should have little effect on the sentence you should receive. There is no argument against that, so I consider your pleas in that way and am of the view that, there should be no reduction on your sentence, except to note and to ensure that the sentence you receive is not on the same footing as an adult or repeat offender.
All of the above applies to all of you. The only additional point is that, you are not repeat offenders, except for John having a prior conviction by the District Court in relation to dangerous drugs. I found in this case that, at the time of the offence, you were under the influence of alcoholic substance, which included home brew. That, I found was the only logical explanation for your turning against your own niece in the way you did. Therefore, your sentence will have to be more than that of Garry and Mathew.
Now continuing with the rest of the general consideration, I further, note that although the victim did not suffer any physical injury, 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."
The factors in aggravation as noted above, 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 as noted above, and the communities call for stiffer penalties, warrants, in my view, a sentence between 18 years and 25 years. I consider in the circumstances of your case, a sentence of 25 years is appropriate for John Atimeiko, and 22 years each for Garry Sasoropa and Mather Melton appropriate and I impose these sentences against you.
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 from the probation service covering all of you. It calls for a non-custodial sentence on conditions of compensation and community based correction orders. This, the report says is to avoid further trouble in the village without specifying what kind of trouble will that be.
The report is a very last minute rushed job. Indeed, it has been prepared over night after the decision on verdict. This is possibly the reason why there is no supporting documentation or evidence, especially from the victim and her relatives, although there are references to inputs from the victim’s uncle, father, and another uncle who is the village chief. I note that there is no input from the regular police here in this province.
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 these circumstances, I am not prepared to consider any suspension of a part or whole of the sentence right way. However, I am prepared to do that subject to substantial improvements made to the pre-sentence report. That has to be in terms of further impartial community inputs including the police, community work schedules and supervision of it and by whom, when and how, payment of the compensation indicated or the means to pay compensation and a willingness by you three men to accept the terms I am just about to state.
Provided the Court receives an improved pre-sentence report with the necessary supporting documentary evidence within one month from today and the Court is satisfied that it is appropriate to do so, it will suspend the last 8 years of your sentences from your head sentences. When the Court decides to suspend that part of your sentences, it will confirm that in writing and that will take the form of an order from my chambers communicated by letter to the Commander of the Correction Service here in the Oro Province. If the Court decides to suspend part of your sentences in terms of the above, it will be on the following terms:
Until at such times, the Court confirms in writing a suspension of your sentence, in terms of the above, you shall serve the whole
of your sentences in hard labour at the Biru Correction Services. A warrant of commitment in those terms shall issue forthwith.
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Lawyers for the Prisoner: Public Solicitor
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