State v Aroko [2005] PGNC 130; N2822 (24 February 2005)

N2822

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 688 of 2004

THE STATE

-v-

SEYO AROKO

Madang: Manuhu, AJ

2005: February 22 & 24.

SENTENCE

CRIMINAL LAW – Particular offence – Rape – Circumstances of aggravation – One on one rape of a mother of nine year old baby – Some violence - Victim wounded – Eight years sentence appropriate.

Cases cited in the judgment:

State v John Aubuku [1987] PNGLR 267.
The State v Togon David (2000) N2026.
State v Penias [1994] PNGLR 48.
State v Thomas Madi (2004) N2625.

Counsel:
Mr. M. Ruarri, for the State.
Ms. A. Turi, for the Prisoner.

24 February 2005.

MANUHU, AJ: The Prisoner, Seyo Aroko, of Saplaro, Henganofi, Eastern Highlands Province pleaded guilty to raping one Serah Sisi on 11th August 2004 at Ramu Sugar, Madang Province.

On Wednesday 11th August 2004, the Prisoner met the victim, who was carrying her nine month old baby, and her niece, in the sugar cane field. After passing them he turned around and went after them. The niece managed to escape but the victim was not able to. The Prisoner approached the victim and struggled with her. He had a small knife in his hand which he used during the struggle. In the process, the victim was wounded on her hand. The Prisoner tore the victim’s shirt and forced her onto the ground. The nine month old baby was separated from the victim. The Prisoner removed the victim’s trousers, skirt, underwear, and had sexual intercourse with her. He then escaped into the field.

The Prisoner is about eighteen or nineteen years old. He was living with his elder brother when he committed the offence. He has never been educated and has never been employed. He is still single.

On the question of sentence, I note that the accused has expressed remorse in his allocatus. He is a first time offender who has pleaded guilty and has thereby saved the State a lot of time and money. He has also co-operated with the arresting officer during the interview. I further note that the crime was not pre-mediated. It was an opportunistic but inexcusable crime.

Rape is a prevalent offence which calls for deterrent sentences. The recent amendments to the Criminal Code which, among other things, introduced the circumstances of aggravation and removed the practice of requiring corroboration clearly demonstrate the community’s disapproval of the crime of rape. The courts have expressed disgust over the crime of rape for many years. All of us were conceived in our mothers’ wombs and were eventually brought into the world by our mothers. Many of us have sisters. We must therefore respect and protect our female counterpart.

Under s. 347(1) of the Criminal Code, a person who sexually penetrates a person without his consent is guilty of the crime of rape and faces a maximum penalty of fifteen years imprisonment. However, where rape was committed in circumstances of aggravation, the accused is liable, subject to s. 19, to imprisonment for life. Circumstances of aggravation generally, under s. 1(1) of the Criminal Code, includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. Relevant to rape, circumstances of aggravation, under s. 349A of the Criminal Code, include, but not limited to, circumstances where:

(a) the accused person is in the company of another person or persons;

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon;

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant;

(d) the accused person confines or restrains the complainant before or after the commission of the offence;

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency;

(f) the accused is a member of the same family or clan as the complainant;

(g) the complainant has a serious physical or mental disability;

(h) the complainant was pregnant at the time of the offence;

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

In this case, the Prisoner actually used a knife which caused an injury to the victim. In addition, the Prisoner paid little attention and respect for a mother of a nine month old baby who was separated from the victim during the rape. The Prisoner struggled with and tore some of the victim’s clothing. The presence of these circumstances of aggravation exposes the Prisoner to the higher penalty of life imprisonment.

There have been many pack rape cases but this is a one on one rape. In the case of State v John Aubuku [1987] PNGLR 267, a sentence of ten years was imposed in circumstances where the prisoner was a policeman and the victim was an inmate. The prisoner used a knife to threaten the victim. The prisoner was in a position of trust towards the victim. In The State v Togon David (2000) N2026, a sentence of seven years was imposed on a prisoner of eighteen years who pleaded guilty and was a first offender. In State v Penias [1994] PNGLR 48, a sentence of nine years was imposed on a prisoner who got masked, abducted the victim and held her for two hours. In State v Thomas Madi (2004) N2625, after a trial, a sentence of twelve years was imposed on a thirty four year old man who raped an eighteen year old Grade Ten student.

This case may be placed in between the cases of The State v. Togon David and State v. Penias. In the latter case, the circumstances of aggravation were more serious. The prisoner was not a first offender. The victim was dragged while her wounded hand was bleeding. Her throat was squeezed when she refused to have sex with the prisoner. She was held for two hours. A sentence of nine years was imposed.

In this case, while there are circumstances of aggravation, I cannot ignore the Prisoner’s plea of guilty, his age of eighteen years, and that the crime was not pre-mediated. In the circumstances, I impose a sentence of eight and half years in hard labour. The period the Prisoner spent in custody will be deducted from this sentence.

Sentenced accordingly.
_____________________________________________________________________

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