N2958

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1031 of 2003

THE STATE

-V-

MOSES JAFISA WINGA (No.2)

WEWAK: 	KANDAKASI, J.
2005: 13th and 26th September

CRIMINAL LAW – Sentence – Two counts of rape of school girl – Breach of de facto trust as an uncle – use of bush knife to secure offence the rapes – Big age difference between accused and victim – Conviction after trial – Prevalence of offence – No issue for sentence to be cumulative but totality principle applied – Reduced sentence of 27 years in total imposed.

Cases cited: 
The State v. Kemai Lumou (23/09/04) N2684.
The State v. Donald Angavia & Ors, (29/04/04) N2590.
The State v. Luke Sitban (No.2) (11/06/04) N2566.
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 (25/05/03) N2380.
The State v. Ian Napoleon Setep (18/05/01) SC666.
Thomas Waim v. The State (02/05/97) SC519.
Public Prosecutor v. Don Hale (1998) SC564.
The State v. Irox Winston, (13/03/03) N2347.
The State v. Eki Kondi & 4 Ors (No.2) (25/03/04) N2542. 
The State v. Flotyme Sina, (21/05/04) N2541.

Counsels:
Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

Following your conviction, the Court asked you to exercise your right to address the Court regarding your sentence and you did. You said sorry for having committed the offence and apologized to the victim, her relatives and your family for bringing the shame of your actions against them. You also added with agreement of the State that you paid K1,000.00 in compensation to the victim’s side. Additionally, you asked the Court to take into account the fact that this is your first ever conviction.

Your lawyer referred the Court’s attention to the case of The State v. Kemai Lumou, to guide me in my deliberations before arriving at a decision on your sentence. Your lawyer also submitted on your behalf correctly, that since you committed two separate acts of sexual penetration of a girl under the age of 16 on two different dates in this case, your sentence has to be cumulative but not one that is crushing on you.

The State accepts the case cited by your lawyer as the case on point but goes on to argue that, the sentence must be cumulative and there should be no reduction under the totality principle. The State’s reasoning is that the offence is serious and is a prevalent one. Parliament recently enacted the law for the protection of children of the victim’s age, which people like you were not prepared to appreciate going by your conduct. Counsel for the State also reasoned that, the victim of your offence will bear the bad scars and effects of your offence against her for life and that should warrant a life long prison term for you to adequately compensate the loss and suffering your offence has and will bring against her.

In the case cited by your lawyer, I imposed a sentence of 17 years against a young man who committed the offence of sexual penetration of a girl under the age of 16 years who was a niece to the offender. The circumstances in which the prisoner committed the offence disclosed a case of rape. The victim suffered no physical injuries.

After receiving these submissions and your address on sentence, I reserved the Court’s decision to today. Here is now the Court’s decision.

For the purposes of sentencing, I note the relevant facts are fully set out in the judgment on your verdict. I need not repeat them save only to note the following pertinent ones for the purposes of sentencing:

•	You are related to the victim through marriage to her aunt;
•	You came and took her and her small brother away from her parents in the disguise of working on and selling cocoa for her school fees;
•	The victim was asleep in the room when you went to the room, used a bush knife on two separate occasions to secure your rape of the victim;
•	The victim sustained injuries to her genital area because of your forceful sexual intercourse; 
•	The victim was a school girl then doing grade 8 while you were a grown up man married with children; and
•	You were convicted after a trial, in which you denied any relationship with the victim and her parents. 

The Offence and Sentencing Trend

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 creates and defines the offence of rape. This was a re-codification of the offence of rape which pre-existed that amendment. The provision in question reads: 

"347.	Definition of rape.

(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."

In The State v. Donald Angavia & Ors, I considered what could be the meaning and or purpose of this amendment. There I expressed the view that the amendment means: 

"… [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." 

I referred to that judgment and the considerations leading to that view in the case of The State v. Luke Sitban (No.2). The consideration started with the guidelines set by the Supreme Court judgment in John Aubuku v. The State. I also had regard to the subsequent judgments, which varied those guidelines especially in the tariffs as in Thomas Waim v. The State. In that case, the sentence increased to 18 years on a guilty plea in a worse case of gang rape, in 1997. I followed this trend to Supreme Court judgment in Lawrence Hindemba v. The State, in 1998, which increased a sentence of 10 years to 15 years. That was also in a case of guilty plea. The judgment reviewed the sentencing trends and said:

"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."

Further, I noted that, the trend of increasing sentences carried into the year 2001 with my judgment in The State v. Eddie Peter (No 2). In that case, I imposed a sentence of 17 years for rape of a schoolgirl in breach of a trust relationship after a trial. I noted further, that, despite the increase in sentences, the offence of rape, did not decrease both in its frequency and prevalence as well as its severity. Hence, Jalina J in the year 2003, in The State v. Kunija Osake 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. 

Furthermore, I noted that earlier on, the Supreme Court in The State v. Ian Napoleon Setep, reduced a sentence of life imprisonment to 25 years. 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. There, the Supreme Court applied the "no quantum leap" principle in Thomas Waim v. The State. The Court was of the view that, sentences should increase progressively rather than jumping from a term of years to life imprisonment for rape cases.

I was a member of the Supreme in The State v. Ian Napoleon Setep. Since that judgment in that case, I have questioned the soundness of the principle of no "quantum leaps" particularly when the offences such as rape and armed robbery have taken a quantum leap.

I note as I did in many other cases to date that, the public is calling for increased sentences for such serious offences as rape. I had regard to the Supreme Court judgment in Public Prosecutor v. Don Hale and my own judgment in The State v. Irox Winston,  which make it clear that criminal sentencing is a power the Court exercises on behalf of the people. As such, the Courts must be responsive to the calls of the community whilst exercising care, not to allow themselves to be unduly influenced by such public calls.

Finally, I noted that I tried to accommodate the calls of the community in my recent judgments such as the one in The State v. Eki Kondi & 4 Ors (No.2). There, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively 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.

I followed that trend in The State v. Flotyme Sina, in 2004. There, I imposed a sentence of 17 years. Before arriving at that sentence, I had regard to the sentencing trends and tariffs as set out above. That was in a case of one on one rape of a married woman. The prisoner used a bush knife to threaten and secure a forceful sexual intercourse with the victim. A small amount of compensation to avoid trouble was paid by the prisoner’s side to the victim’s side. After the Court found him guilty, the prisoner said sorry to the Court for taking its time and putting the victim to further trouble in coming to the Court and reliving the attack on her.

I followed that trend in The State v. Luke Sitban (No.2). There, it was a case of an adult raping a schoolgirl. He used no weapons and he was convicted after a trial. There was also no evidence of any physical injury to the victim. The sentence imposed was 17 years.

Having regard to this sentencing trend and tariff, I do not accept both yours and that of the State that a sentence of 17 years is appropriate in your case for each of the acts of rape of the victim. Instead, a sentence of 19 years in the particular circumstances of your case and the increase in the sentencing tariff coupled with the prevalence of the offence is appropriate. In arriving at that decision, I note in particular that, the victim was a daughter to you. Therefore, when you committed the offence not only once but on two separate occasions, you breached the trust the victim and her parents placed in you as a relative. Further, you used a dangerous weapon, a bush knife to secure your rape of her. She suffered some physical injuries, from which she has recovered but will live with the bad memories and the psychological scars you gave her. Furthermore, the victim was a very young school girl. You were much older than her so you use the power imbalance to secure the rape of her. Finally, you pleaded not guilty, thereby forcing her to come into Court and relive the bad memories of what you did to her in the presence of a number of strangers.

I now need to consider whether the sentence of 19 years each be concurrent or cumulative. In the circumstances of your case, I accept both counsels’ submission that the sentence for each of the offences should be cumulative. This is because you committed the offences at two different times or days. I also accept that, I must apply the totality principle to ensure that, the total of the sentence you receive is not crushing on you. However, before I do, I express my difficulty with accepting and applying that principle to offenders like you, who go onto repeating the commission of an offence against their victims and do not stop at all to think and accept the fact that, their acts or conduct could be crushing on the victims. Often times the focus is on the offender and not the victim. I think it is about time that, the judges re-consider the utility of this principle. Until that is done and revisited, I am bound to apply the principle in question.

The total of your sentence will thus be 38 years. The maximum sentence prescribed for the offence of rape is life imprisonment. So you are already well of with a reduced sentence of 38 years as opposed to life imprisonment. I also note that, whilst we are here talking about what is crushing and what is not crushing for you, there is no doubt that the victim is left unaided to deal with the psychological effects of the offences against her for life. I consider a better balance between the two would be a sentence that is above the kind of sentence imposed for a single act of aggravated rape but not closer to or exceeding the prescribed maximum of life imprisonment. Accordingly, I consider a sentence of 27 years in total is appropriate and I impose that sentence against you.

Of the ultimate sentence of 27 years, the period you have already spent awaiting your trial and sentence shall be deducted. You shall serve the balance of your sentence in hard labour at the Boram Correction Services. A warrant of commitment in those terms shall issue forthwith.
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Lawyers for the State:						Public Prosecutor
Lawyers for the Accused:					Public Solicitor