State v Sembengo [2006] PGNC 199; N3030 (23 March 2006)

N3030

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 556-558 OF 2004

THE STATE

V

LUCAS SOROKEN SEMBENGO,
RAPHAEL LAWRENCE MANDAL AND
BOB ALOIS WAFU

Bialla, Kimbe: Cannings J
2006: 13, 16, 23 March

SENTENCES

CRIMINAL LAW – sentences – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery) – robbery of a family home in the middle of the night while family members were asleep – armed gang – nobody physically injured – convicted after trial – head sentence of 12 years imprisonment.

CRIMINAL LAW – sentencing principles for rape – Criminal Code, Division V.7 (sexual offences and abduction) – Section 347 (rape) – conviction after trial – distinction between rape simpliciter, Section 347(1), and rape in circumstances of aggravation, Section 347(2) – whether circumstances of aggravation pleaded in indictment – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment – starting point – identification of relevant considerations – sentence of 13 years.

CRIMINAL LAW – sentencing of multiple offenders for multiple offences – ascertaining degree of involvement of each offender in each offence – whether cumulative or concurrent sentences – whether part of a single transaction – totality principle.

Three men were convicted after a trial of two charges each: (a) armed gang robbery of a family home and its occupants; and (b) rape of a female occupant of the home, while her husband and children were in the house.

Held:

(1) In sentencing multiple offenders for multiple offences committed in circumstances in which each was aiding the other, it is appropriate in the first instance to assess the degree of involvement of each offender in each offence.

(2) In this case each offender had an equal involvement in each offence. Therefore they were dealt with together for sentencing purposes.

(3) Each offender was sentenced to 12 years imprisonment on the armed robbery charge and to 13 years on the rape charge.

(4) They were separate offences and, in principle, should be served cumulatively. However, applying the totality principle, it is apparent that the court would be imposing a crushing sentence were it not to adjust the sentences.

(5) The sentences were accordingly adjusted in light of the totality principle to make the total sentence 17 years imprisonment for each offender.

(6) Each offender must serve a minimum of 10 years in prison after which each will be eligible to apply to the National Court for suspension of the remainder of the sentence, subject to conditions.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Dibol Petrus Kopal (2004) N2778
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v James Yali (2006) N2989
The State v Jeffery Wangi (2006) N3016
The State v Jimmy Yasama Lep (1996) N1495
The State v Lucas Soroken Sembengo, Raphael Lawrence Mandal and Bob Alois Wafu (2006) N3029

Abbreviations

The following abbreviations appear in the judgment:

AIDS – Acquired Immune Deficiency Syndrome
CS – Correctional Service
HIV – Human Immunodeficiency Virus
J – Justice
K – Kina
LLG – Local-level Government
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
SCR – Supreme Court Review
WNB – West New Britain
SSEC – South Seas Evangelical Church

SENTENCES

This was a judgment on sentences for armed robbery and rape.

Counsel

F Popeu, for the State
A Asan, for the accused

23 March, 2006

1. CANNINGS J: INTRODUCTION. This is a decision on the sentences for three men each convicted after trial of one count of armed robbery and one count of rape.

BACKGROUND

2. The offences were committed at Barema oil palm settlement in the Bialla District of West New Britain in the middle of the night of 21 December 2003. The three offenders forcibly entered the family home of Melkius and Henni Sivilien, armed with a homemade gun, an axe, a bush knife and a spear. They stole K460.00 in cash and assorted clothes valued at K86.00. They then each raped Henni Sivilien while her husband and children were in the house. Further details of the circumstances in which the offences were committed are set out in the judgment on verdict delivered on 16 February 2006 (The State v Lucas Soroken Sembengo, Raphael Lawrence Mandal and Bob Alois Wafu (2006) N3029, National Court, Cannings J).

SENTENCING MULTIPLE OFFENDERS

3. In sentencing multiple offenders for multiple offences committed in circumstances in which each was aiding the other, it is appropriate in the first instance to assess the degree of involvement of each offender in each offence. In this case each offender had an equal involvement in each offence. Therefore they will be dealt with together for sentencing purposes.

ANTECEDENTS

4. None of the offenders has any prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of each response follows.

6. Lucas Soroken Sembengo stated:

I ask the court to consider these grounds. I am the only male in the family. All the others are female. My father and mother are very old. I have to look after them. I have no idea about this trouble. I am innocent. I have a two-acre oil palm block, which is now overgrown. I have been in Lakiemata for two years and two months. I have joined God's 21st Ministry. I am happy that we have formed that Ministry. I will be happy with whatever decision the court makes as I know that in my spirit I am free.

My physical condition is poor. We have paid compensation. It will be double punishment if we are sentenced to prison terms.

7. Bob Alois Wafu stated:

I am an innocent man. I did not commit these offences but the court has found me guilty. I ask the court to consider my family background. I am the only male child in the family. My mother is very old. My father is deceased. My oil palm block is a new one. I have an outstanding loan on it. My family need me to stay with them.

I ask the court to consider imposing a fine on us.

8. Raphael Lawrence Mandal stated:

I do not feel guilty but the court has found me guilty. I ask the court to consider these grounds. There were only two brothers in our family, one of them is deceased, and I am now the only one. My father and mother are old. They need help to harvest the oil palm on our block. I am not in a good condition to be in the gaol. I have been there for two years and two months. We have formed a ministry – God's 21st Ministry – and I have changed my life for Christ. I will be happy with whatever decision the court makes.

As the court has found me guilty it should consider ordering payment of more compensation. If we are to be sent to prison that will be double punishment as this trouble has basically been sorted out already; and the court should order them to pay back the compensation money.

RELEVANT LAW

Armed robbery

9. Section 386 (the offence of robbery) of the Criminal Code states:

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

Rape

10. Section 347 (definition of rape) of the Criminal Code states:

(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.

SUBMISSIONS BY DEFENCE COUNSEL

11. Mr Asan submitted that in relation to the armed robbery, the maximum penalty was life imprisonment, but major mitigating factors were:

• no-one was killed or injured; and
  
• the amount of money and value of the goods stolen was relatively small.
  

12. As to the rape, Mr Asan submitted that the maximum penalty was 15 years imprisonment but major mitigating factors were:

• the victim did not resist;
  
• the victim suffered no physical injuries; and
  
• no evidence that the victim has suffered any long lasting emotional scars.
  

13. Mitigating factors covering both offences are:

• they are all first-time offenders; and
  
• they have paid compensation. On that issue he relied on a statutory declaration made by a Flesian Yumbu of Barema Section 18 on 5 October 2005. Flesian Yumbu describes himself as "a father" of the three offenders. He states that on 21 September 2005 there was a peace ceremony at Henny Sivilien's block at Barema Section 15 witnessed by the Village Court chairman Michael Baili, the Divisional Chairman Thomas Vitikut and the LLG Ward 7 member Willie Bandi. Flesian Yumbu and his relatives paid K3,516.14 to Henny Sivilien and Elly Stanley (whose house the offenders were acquitted of burning down). Henni Sivilien states in an affidavit sworn on 15 March 2006 that she received K3,000.00 compensation.
  

14. As both offences were committed in the course of one transaction whatever sentences are imposed should be served concurrently.

SUBMISSIONS BY THE STATE

15. Mr Popeu agreed that the maximum penalty for the armed robbery was life imprisonment. It was armed robbery of a dwelling house at night, with the occupants present. Therefore it falls into the most serious of the categories of armed robbery identified by the Supreme Court in Gimble v The State [1988-89] PNGLR 271 (Bredmeyer J, Los J, Hinchliffe J) and Tau Jim Anis v The State (2000) SC642 (Sheehan J, Jalina J, Kirriwom J). He referred to the judgment of Sevua J in The State v Jimmy Yasama Lep (1996) N1495, in which his Honour highlighted the violation of constitutional rights that occurs whenever a person violently invades another person's home and commits criminal offences within it. A sentence of 10 to 15 years imprisonment would be appropriate.

16. As to the rape, Mr Popeu submitted that the maximum penalty was life imprisonment. This was a pack rape. That circumstance of aggravation was charged in the indictment, by virtue of the offenders being jointly charged in the one indictment. Other aggravating factors were that the offences were committed within the family home with other members of the family present and in the middle of the night. The sentence should be more than 15 years each.

17. General aggravating factors were that the offenders pleaded not guilty, forcing the victims to relive the trauma of what happened, and they expressed no remorse.

18. The offences of armed robbery and rape were committed separately and therefore the sentences should be imposed cumulatively.

PRE-SENTENCE REPORTS

19. To help me make a decision on the appropriate sentences and determine whether any should be suspended I requested and received pre-sentence reports under Section 13(2) of the Probation Act. The reports, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service are summarised below.

Lucas Soroken Sembengo
Male aged 23 years

Family background: parents are from Nuku District, West Sepik Province – second born of 4 children – he is the only male – he was born and raised in Barema and has no plans to reside elsewhere.

Family supportive – father is old and needs offender's assistance in working their oil palm block – says that he faced difficulties since Lucas has been in custody – pleads for leniency for his son.

Offender is single – unemployed.

Education: very limited: dropped out of school in grade 1.

Financial status: relies on revenue generated by the family's oil palm block.

Health: poor – legs are paralysed – eyesight has become blurred while in custody.

Community and religious characteristics: He was previously a member of the SSEC, then switched to the Catholic Church – while he has been in gaol, he has joined God's 21st Ministry co-founded by detainees Korak Mekorie and David Jackson Gawi who have since been released.

Community support solid – community leader Willie Bandi says offender has no bad record – has known him since childhood.

Attitude of victims: Henni Sivilien said that the offenders had treated her like a dog – they had gained entry to her family's house armed with offensive weapons and repeatedly raped her, treating her without respect as a mother and neighbour – none of them had apologised – she confirmed that compensation had been paid but said that it does not equate with the pain and suffering she and her family had been through. Melkius Sivilien said he was threatened and forced to hide while his wife was pack-raped and his family had suffered a lot. Neither victim supported a non-custodial sentence.

Conclusion: the pre-sentence report concludes that the offender is a suitable candidate for probation supervision with special conditions to deter him from re-offending.

Raphael Lawrence Mandal
Male aged 23 years

Family background: father from Nuku District, West Sepik Province, mother from Kaliai, WNB – oldest of 7 children – he was born and raised in Barema and has no plans to reside elsewhere.

Family supportive – father is a bit blind and weak – his mother relies on him a lot as he has taken over many roles and responsibilities from his father – regards him as a helpful and hardworking son – the family has missed him greatly since he has been in custody – it has made life very difficult for the rest of the family – needs offender's assistance in working their oil palm block.

Offender is married with one child – unemployed.

Education: very limited: dropped out of school in grade 2 at Barema Primary.

Financial status: relies on revenue generated by the family's oil palm block.

Health: poor – has been hospitalised while in custody.

Community and religious characteristics: a member of the Catholic Church, but not a committed member – while he has been in gaol, he has joined God's 21st Ministry co-founded by detainees Korak Mekorie and David Jackson Gawi who have since been released.

Community support solid: community leader Willie Bandi says offender has no bad record – has known him since childhood – regards him as a family man – perhaps the influence of liquor led him to commit offences.

Attitude of victims: Henni Sivilien said that the offenders had treated her like a dog – they had gained entry to her family's house armed with offensive weapons and repeatedly raped her, treating her without respect as a mother and neighbour – none of them had apologised – she confirmed that compensation had been paid but said that it does not equate with the pain and suffering she and her family had been through. Melkius Sivilien said he was threatened and forced to hide while his wife was pack-raped and his family had suffered a lot. Neither victim supported a non-custodial sentence.

Conclusion: the pre-sentence report concludes that the offender is a suitable candidate for probation supervision with special conditions to deter him from re-offending.

Bob Alois Wafu
Male aged 23 years

Family background: parents from Nuku District, West Sepik Province – oldest of 9 children – he was born and raised in Barema and has no plans to reside elsewhere.

Family supportive – father died in 2000 – his mother relies on him a lot and misses his assistance since he has been in custody – very supportive of her son and asks the court to consider a non-custodial sentence.

Offender is single – unemployed.

Education: completed grade 8 at Barema Primary in 2002.

Financial status: relies on revenue generated by the family's oil palm block.

Health: OK.

Community and religious characteristics: a member of the Catholic Church – while he has been in gaol, he has joined God's 21st Ministry co-founded by detainees Korak Mekorie and David Jackson Gawi who have since been released.

Community support solid: community leader Willie Bandi says offender has no bad record – confirms that the offender was responsible for handling the work on the family's block following the death of his father.

Attitude of victims: Henni Sivilien said that the offenders had treated her like a dog – they had gained entry to her family's house armed with offensive weapons and repeatedly raped her, treating her without respect as a mother and neighbour – none of them had apologised – she confirmed that compensation had been paid but said that it does not equate with the pain and suffering she and her family had been through. Melkius Sivilien said he was threatened and forced to hide while his wife was pack-raped and his family had suffered a lot. Neither victim supported a non-custodial sentence.

Conclusion: the pre-sentence report concludes that the offender is a suitable candidate for probation supervision for an extensive period subject to conditions.

DECISION MAKING PROCESS

20. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: I will fix an appropriate head sentence, in terms of years, for (a) the armed robbery convictions; and (b) the rape convictions;
  
• step 2: I will determine whether the sentences are to be served cumulatively or concurrently;
  
• step 3: I will consider whether any part of the sentences should be suspended.
  

STEP 1(a): WHAT IS THE HEAD SENTENCE FOR THE ARMED ROBBERY CONVICTIONS?

21. In setting an appropriate head sentence I will address the issues this way:

(i) What is the maximum penalty?

(ii) What is the starting point?

(iii) What are the considerations to be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point?

(iv) Applying those considerations to this case, what is the head sentence?

(i) What is the maximum penalty?

22. Under Section 386(2) of the Criminal Code it is life imprisonment.

(ii) Starting point

23. Mr Popeu was correct to submit that this case falls within the most serious category of armed robbery: a family home with the occupants present. The starting point is therefore ten years. (Gimble v The State [1988-89] PNGLR 271, Supreme Court, Bredmeyer J, Los J, Hinchliffe J; and Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC642, Supreme Court, Amet CJ, Woods J, Kirriwom J.)

(iii) Relevant considerations

24. I regard the following as considerations to take into account in deciding whether the sentence should be above or below the starting point:

1. Did the offenders not commit actual violence during the course of the robbery?
   
2. Did the offenders not threaten the victims of the robbery with violence?
   
3. Did the offenders not put the victims or innocent bystanders in real danger of being injured or killed?
   
4. Did the offenders ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly?
   
5. Did the offenders steal money or property of a relatively small value?
   
6. Did one or other of the offenders play a relatively minor role in the robbery?
   
7. Did one or other of the offenders give himself up after the robbery?
   
8. Did the offenders cooperate with the police in their investigations?
   
9. Have the offenders done anything tangible towards repairing their wrong, eg offering compensation to the victims, repaying what they have stolen, personally or publicly apologising for what they did?
   
10. Have the offenders pleaded guilty?
    
11. Have the offenders genuinely expressed remorse?
    
12. Is this their first offence?
    
13. Can the offenders be regarded as a youthful offenders or are their personal circumstances such that they should mitigate the sentence?
    
14. Are there any other circumstances of the robbery or the offenders that warrant mitigation of the head sentence?
    

25. Numbers 1 to 6 focus on the circumstances of the robbery. All armed robberies are bad and their effect on the victims can be traumatic, devastating and long lasting. But the gravity and the circumstances of each robbery are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

26. Numbers 7 to 11 focus on what each offender has done since the robbery and how he has conducted himself.

27. Numbers 12 to 14 look at the personal circumstances of each offender and take account of other factors not previously considered.

(iv) Application of considerations to arrive at head sentence

28. I apply the above considerations as follows:

1. No, there was actual physical violence as the mother of the home was raped. I reject Mr Asan's submission that no-one was injured. The fact that a woman was raped adds to the seriousness of the robbery.
   
2. No there were threats of violence against both the father and mother of the house.
   
3. No the gang had weapons, so there was a real danger that someone would be killed or injured.
   
4. No there were vulnerable victims present. The father of the house, Melkius Sivilien, is a fairly old man. The mother of the house was a vulnerable victim, as were the children present in the house.
   
5. Yes the amount of money and property stolen was relatively small: K546.00. However, to people living a simple life like these victims it no doubt was a lot of money.
   
6. No each offender played a major role in the robbery.
   
7. No none of them gave themselves up.
   
8. Yes they co-operated with the police.
   
9. Yes they have paid some compensation. About K3,000.00 was paid in the month leading up to their trial. However, none of them have apologised for what they did.
   
10. No none of them pleaded guilty.
    
11. No they have not expressed remorse.
    
12. Yes this is the first offence for each of them.
    
13. No none of them can be regarded as youthful offenders.
    
14. Yes there are aspects of the offenders' personal circumstances that warrant mitigating the head sentence. They have a similar upbringing. All were born and raised at Barema. All have a limited education. All have never been formally employed. All are supported by their families. In each case the offender is a key person in his family in that the rest of the family relies on him to work the family oil palm block. The pre-sentence reports of all them give the impression that the trouble that they have caused is out of character.
    

29. To recap, I regard the following as strong mitigating factors:

• No 9 – paid some compensation;
  
• No 12 – first offenders;
  
• No 14 – family supportive and depends on each of them.
  

30. I regard the following as strong aggravating factors:

• No 1 – actual violence;
  
• No 2 – threats of violence;
  
• No 3 – gang weapons, including a home-made gun;
  
• No 4 – all victims were in the vulnerable category.
  

31. The other factors are not significantly mitigating (Nos 5 and 8) or not significantly aggravating (Nos 6, 7, 10, 11 and 13).

32. After weighing all these factors and bearing in mind that there are three strong mitigating factors compared to five strong aggravating factors, I consider that the head sentence should be above the starting point. This was a bad armed gang robbery of a family sleeping in their home.

33. I accordingly fix a head sentence of 12 years imprisonment.

STEP 1(b): WHAT IS THE HEAD SENTENCE FOR THE RAPE CONVICTIONS?

34. In setting an appropriate head sentence I will take the same general approach as for the armed robbery conviction. That is:

(i) What is the maximum penalty?

(ii) What is the starting point?

(iii) What are the relevant considerations?

(iv) Applying those considerations to this case, what is the head sentence?

(i) Maximum penalty

35. The issue is whether circumstances of aggravation were charged in the indictment. If they were, the maximum is life imprisonment. If not, the maximum is 15 years. (The State v Dibol Petrus Kopal (2004) N2778, National Court, Lay J; The State v James Yali (2006) N2989, National Court, Cannings J; The State v Jeffery Wangi (2006) N3016, National Court, Cannings J.)

36. "Circumstances of aggravation" are defined by Section 349A (interpretation) of the Criminal Code, which states:

For the purposes of this Division [Division V.7 (sexual offences and abduction), circumstances of aggravation include, but [are] not limited to, circumstances where—

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

(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; or

(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; or

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

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

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

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

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

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

37. The rape charge was drafted as follows:

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they ... on the 21st day of December 2003 at Barema in Papua New Guinea sexually penetrated one Henni Sivilien without her consent.

38. Mr Popeu submitted that the circumstance of aggravation in this case was that it was a pack rape. Each offender "acted in the company of the other". Therefore Section 349A(a) applied. They were charged jointly on the one indictment and thus it was clear that they were being charged for acting in the company of the others. The circumstance of aggravation was adequately pleaded.

39. I cannot uphold that submission. I follow the logic in it and it is certainly possible to draw the inference from their joint charging in the indictment that the offenders were being charged with aggravated rape under Section 349(2). However, the court must give an accused person the full protection of the law. Indictments are to be read down in the event of ambiguity. This indictment does not expressly allege that each offender acted in the company of the others. Those words in Section 349A(a) should have been expressly used. The failure to charge in the words of the provision now relied on means that they have not been charged with any circumstance of aggravation.

40. To sum up:

the maximum sentence for which each offender is liable on conviction for rape under Section 347(1) of the Criminal Code is 15 years imprisonment;

ie, the sentencing range is zero to 15 years imprisonment by virtue of Section 19 of the Criminal Code;

in determining the head sentence within that range the court is entitled to take into account any circumstances of aggravation proven, including those prescribed by Section 349A, even though they were not charged in the indictment.

(ii) Starting point

41. In Yali's case I reviewed the range of sentences being imposed for rape and other sexual offences and the sentencing trends that have emerged over the last ten or twenty years. Sentences for rape have increased. I applied a starting point for sentencing under Section 347(1) of 10 years imprisonment. I do likewise in the present case.

(iii) Relevant considerations

42. Having identified a starting point for the present case I will now identify the sort of things that should be taken into account when deciding to reduce or lift the sentence (up to the ceiling of 15 years). These are the considerations I set out in Yali's case.

1. Is there only a small age difference between the offender and the complainant?
   
2. Is the complainant well over the age of 16 years and not an old person?
   
3. Was there only one offender?
   
4. Did the offender not use or threaten to use a weapon?
   
5. Did the offender not torture or cause grievous bodily harm?
   
6. Did the offender not confine or restrain the complainant before or after the commission of the offence?
   
7. Did the offender not abuse a position of trust, authority or dependency?
   
8. Was the offender not a member of the same family or clan as the victim?
   
9. Did the victim not suffer from a serious physical or mental disability?
   
10. Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim?
    
11. Was the offence unplanned, ie was it a spontaneous incident?
    
12. Did the victim provoke or aggravate the offence?
    
13. Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape?
    
14. Did the offender treat the victim with dignity immediately after committing the offence?
    
15. Did the incident have a minimal emotional impact on the victim?
    
16. Did the offender give himself up after the incident?
    
17. Did the offender cooperate with the police in their investigations?
    
18. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did?
    
19. Has the offender not caused further trouble to the complainant or the complainant's family since the incident?
    
20. Has the offender pleaded guilty?
    
21. Has the offender genuinely expressed remorse?
    
22. Is this his first offence?
    
23. Can the offender be regarded as a youthful offender?
    
24. Will a lengthy gaol term have an adverse effect on the offender's family and others dependent on him?
    
25. Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service?
    
26. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

43. Numbers 1 to 15 focus on the circumstances of the incident.

44. Numbers 16 to 21 focus on what the offender has done since the incident and how he has conducted himself.

45. Numbers 22 to 26 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

(iv) Application of considerations

46. I now apply those factors. Unless otherwise indicated I treat all offenders equally.

1. Yes in the relevant sense there was a small age difference in that they were each mature aged men who committed offences against a mature aged (not young or old) woman.
   
2. Yes the victim I estimate was aged about 40. She was neither young nor old.
   
3. No the offenders acted in a group. Though this was not a circumstance of aggravation in the indictment it is, for sentencing purposes, an aggravating factor.
   
4. No the offenders were armed and there were at least implied threats of use of weapons.
   
5. Yes the offenders did not torture or cause grievous bodily harm to the victim.
   
6. No the offenders did confine or restrain the victim.
   
7. Yes in the cases of Raphael Lawrence Mandal and Bob Alois Wafu they did not abuse a position of trust, authority or dependency. However, in Lucas Soroken's case there was a relationship of trust owing to the fact that he used to spend time at the victim's home helping the family in their block and they would look after him in return. There was a breach of trust in his case.
   
8. Yes the offenders were not members of the same family or clan.
   
9. Yes the victim did not suffer from a serious physical or mental disability. The offender was not, in that sense, taking advantage of an especially vulnerable person.
   
10. Yes there is no suggestion that any offender was HIV positive or had AIDS or that he passed on any sexually transmitted disease to the victim.
    
11. Yes the offence was unplanned and spontaneous. It appears that the robbery and rape occurred because of a series of events that happened earlier in the day.
    
12. No the victim did not provoke or aggravate the offence.
    
13. No the victim was subject to further sexual indignities or perversions, in addition to the act of rape. In her evidence in chief the victim gave a graphic account of how each offender treated her. Lucas Soroken Sembengo was the least culpable in this regard. Raphael Lawrence Mandal and Bob Alois Wafu treated her particularly badly and said things to her, which were distressing and humiliating.
    
14. No the offenders did not treat the victim with dignity after raping her.
    
15. No the incident did not have a minimal emotional impact on the victim. I reject Mr Asan's submission that the victim did not resist and that there is no evidence of permanent emotional scarring. She was overcome physically by three men who had invaded her home, held up her husband and threatened the use of weapons. Her recently filed affidavit demonstrates the inevitable adverse emotional impact that this ordeal has had on her. Furthermore, her children were in the house when she was raped. They were young and the emotional impact on them is inevitably severe.
    
16. No the offenders did not give themselves up after the incident.
    
17. Yes they cooperated with the police.
    
18. Yes they have paid compensation but it must be remembered that the amount of K3,000.00 paid is for both the armed robbery and rape. If the money is apportioned equally, that would mean that K1,500.00 is for each offence. There were three co-offenders for each offence. So in relation to rape, the compensation has been K500.00. It could hardly be suggested that that is an adequate amount to compensate the victim of such a terrible crime. So it will not be a strong mitigating factor.
    
19. Yes the offenders have not caused further trouble to the victim and her family since the incident.
    
20. No the offenders did not plead guilty. In a rape case this can be a strong aggravating factor, as the offender, by his actions, in effect, forces the victim to relive a harrowing experience in open court. This exacerbates the adverse emotional impact of the incident.
    
21. No the offenders expressed no remorse.
    
22. Yes they are first offenders.
    
23. No they are not youthful offenders.
    
24. Yes it can reasonably be inferred that a lengthy gaol term will have an adverse effect on many people, the family of each offender.
    
25. As to whether each offender was, prior to the incident, a model citizen etc, this is a neutral factor. It appears that they did not have a bad record in the Barema community prior to this incident.
    
26. Yes as in the case of the armed robbery conviction, there are aspects of the offenders' personal circumstances that warrant mitigating the head sentence. They have a similar upbringing. All were born and raised at Barema. All have limited education. All have never been formally employed. All are supported by their families. In each case the offender is a key person in his family in that the rest of the family relies on him to work the family oil palm block. The pre-sentence reports of all of them give the impression that the trouble that they have caused is out of character.
    

Recap

47. I regard the following as strong mitigating factors:

• No 5 – no torture or grievous bodily harm;
  
• No 19 – no further trouble;
  
• No 22 – first offenders;
  
• No 24 – effect of gaol term on offenders families;
  
• No 26 – family supportive and depends on them.
  

48. I regard the following as strong aggravating factors:

• No 3 – offenders acted in a group;
  
• No 4 – offenders were armed;
  
• No 7 – breach of trust by Lucas Soroken Sembengo;
  
• No 12 – victim did nothing to provoke the offenders;
  
• No 13 – high degree of sexual indignity by Raphael Lawrence Mandal and Bob Alois Wafu;
  
• No 14 – did not treat the victim with dignity;
  
• No 15 – high degree of adverse emotional impact and children present;
  
• No 20 – forcing a trial;
  
• No 21 – no remorse;
  

49. The other factors are not significantly mitigating (Nos 1, 2, 7 (for Raphael and Bob), 8, 9, 10, 11, 17 and 18), not significantly aggravating (Nos 6, 13 (for Lucas), 16 and 23) or neutral (No 25).

50. After weighing all these factors and bearing in mind that there are nine strong aggravating factors compared to five strong mitigating factors, I consider that the head sentence should be lifted above the starting point of 10 years.

51. The factors for which the offenders have been dealt with differently (Nos 7 and 13) cancel each other out, which means that they will all get the same sentence.

52. I fix a head sentence of 13 years imprisonment.

STEP 2: SHOULD THE SENTENCES BE SERVED CUMULATIVELY OR CONCURRENTLY?

53. I summarised the principles to apply when deciding whether to make sentences cumulative or concurrent in The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919.

54. That is:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

55. The one transaction rule does not apply in this case. The two offences for which the offenders are being sentenced are separate and distinct. They staged an armed robbery on an innocent family's house. That was one distinct crime. They then committed another terrible crime: they raped the mother of the house. The two sentences are therefore to be served cumulatively, subject to application of the totality principle. That is:

12 years (armed robbery) + 13 years (rape) = 25 years.

56. I now look at that total sentence that each offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is 'over the top' or manifestly excessive.

57. I consider that sentencing these young men, who apart from committing these crimes have no criminal record to 25 years imprisonment each would be crushing to them and their families. I will reduce the total sentence for the two crimes to 17 years each.

STEP 3: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

58. The crimes committed are too serious to warrant suspension of any part of the sentences at this stage. That will make it hard for the offenders and their families. But that is the price that has to be paid by those who commit such terrible crimes against their neighbours. They will have to spend a considerable time in gaol. I have taken account of the poor physical condition of two of them. They will have a right to proper medical treatment while in gaol, pursuant to the Correctional Service Act.

59. However, because each offender has a positive pre-sentence report, indicating strong community and family support for each, I will identify a minimum term of imprisonment which each of them must serve, after which they will be eligible for release. Early release will be dependent on their record of behaviour while in prison and any further compensation that is paid.

60. I reject the contention that two of the offenders made in their allocutus that they are being subject to double punishment, having paid some compensation and now being sent to prison. It is not double punishment. I have taken account already of the compensation that has been paid in arriving at appropriate sentences. The compensation that has been received by the victims should not be returned to those who paid it. If that were to happen the court would be warranted in reviewing the sentences and increasing the time to be spent in prison.

SENTENCE

61. The Court makes the following order:

1 Lucas Soroken Sembengo, Raphael Lawrence Mandal and Bob Alois Wafu, having been convicted of one count of armed robbery and one count of rape, are each sentenced to a total of 17 years imprisonment in hard labour, subject to the following:

(a) a minimum of 10 years must be served in custody; and

(b) the balance of 7 years may be suspended by order of the National Court if and when an application for suspension is granted.

2 For the avoidance of doubt:

(a) suspension of any of the above sentences will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the terms of imprisonment the periods in custody that each prisoner has already spent in connexion with this matter.

Sentenced accordingly.

____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused