State v Torona [2008] PGNC 298; N3867 (19 November 2008)

N3867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 875 of 2007

THE STATE

-V-

RAPHAEL TORONA

Buka: Kandakasi, J.
2008: 11th & 19th November

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Father abusing natural daughter – Breach of trust - Victim becoming pregnant and giving birth to child – Premature termination of schooling – Substantial age difference – Conviction after trial - No priors but serving sentence for incest - 18 years sentence imposed – Consideration of making sentence concurrent or cumulative and totality principle – Combine sentences not too crushing - No deduction of sentence - Section 229A(1) of Criminal Code.

Cases cited:

State v. Joe Kanau Tomitom (2008) N3301
John Aubuku v. The State [1987] PNGLR 267
Thomas Waim v. The State (1997) SC519
Lawrence Hindemba v. The State (1998) SC593
The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (2004) N2590
The State v. Eddie Peter (No 2) (12/10/01) N2297
The State v. Kunija Osake (2003) N2380
The State v. Ian Napoleon Setep (18/05/01) SC666
Public Prosecutor v. Don Hale, (1998) SC564
Re Application by Anderson Agiru (2001) SC671
Application of John Mua Nilkare (1997) SC536
Avia Aihi v. The State [1981] PNGLR 81
Tau Jim Anis & Ors. v. The State, (2000) SC642
The State v. Irox Winston, (2003) N2347
The State v. Pais Steven Sow (2004) N2588
The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 2004) N2567
The State v. Eki Kondi & 4 Ors (No.2) (2004) N2543
The State v Luke Sitban (No 2) (2004) N2566
The State v Henry Nandiro (No 2) (2004) N2668
The State v Dibol Petrus Kopal (2004) N2778
The State v Joe Kanau Tomitom
Thress Kumbamong v. The State (2008) SCRA 29 of 2007
The State v. Alex Noga CR 1082 2007
The State v. Peter Lare
The State v. Thomas Angup

Counsel:

L. Rangan, for the State.
P. Kaluwin, for the Accused.

DECISION ON SENTENCE

19th November, 2008

1. KANDAKASI J: Last week this Court found you guilty on one charge of rape against your own then 16 year old daughter contrary to s. 347 of the Criminal Code between October and November of 2004. The Court then heard from you and your lawyer as well as the lawyer for the State as to the kind of punishment you should receive and the Court reserved its decision to today.

2. The issue for the Court to decide is, what is an appropriate sentence for you? This issue can be determined by reference to the relevant facts, the offence and its sentencing trend and the factors in your favor as well as those against you and possibly the decisions in other similar cases.

Relevant Facts

3. Turning firstly to the relevant facts, I note before anything else that, you are serving a sentence of 5 years for the offence of incest against the same victim within the same period as the offence of rape. You have had at least two acts of sexual intercourses against your own natural daughter whilst in Madang. The only reason for putting the charge of rape to trial was because you claimed that your sexual intercourses with the victim was with her consent and that you did not rape her. At the end of the trial, this Court found that, you indeed raped her because you secured the sexual intercourse with her by force and use of threats of use of force, which included a knife. Because of the force and threats level against her, she was not able to report you earlier to anyone until she got to Bougainville where she has some supportive relatives. You committed the offence in the family home in Madang, where your new wife and your children lived. Your first wife and mother of the victim had earlier died. As a result of the sexual intercourses you had with your daughter, she gave birth to a child and her hopes of continuing in her educational pursuits abruptly came to an end.

The Offence and Sentencing Trend

4. Section 347 of the Criminal Code, creates and prescribes the offence of rape. That provision reads as follows:

"(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."

5. In my decision in The State v. Joe Kanau Tomitom (2008) N3301, which I handed down here in Buka on 21st February 2008, I reviewed the sentencing trend up to the date of the decision in that matter. For the purposes of sentencing in your case, I will repeat the discussion here.

6. I started with the observation that, Parliament, in my view, considered the offence of rape very serious and decided to prohibit it. It did so by enacting s. 347 of the Criminal Code and prescribed the 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 of rape to life imprisonment. In the lower end, are cases with no aggravating factors while those on the higher end, have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.

5. Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State (1997) 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."

6. Almost a year after the decision, in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (1998) 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."

7. The Supreme Court in arriving at that decision found that, the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. It also found that the offence was committed in the presence of the victim's schoolmates who ran away.

8. In a number of my own decisions as in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (2004) N2590, I observed that, since the decision in the above case in 1998, there has been an increase in the commission of the offence. The society has therefore been calling for increases in the kind of penalties imposed. I responded to that call 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 threats of violence after a trial. That was in The State v. Eddie Peter (No 2) (12/10/01) N2297, in 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. I also noted that, what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case.

9. I further noted that, since the pronouncement of the various sentences in rape cases up to 2004, there has never been a decline in number of rape and other sexual offences. I attributed this increase in part to the kind of the sentences imposed up to then, and observed that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. In view of that, I expressed the view that, the courts have to seriously examine the kind of sentences imposed to date, thereby repeating what the Supreme Court said in Lawrence Hindemba v. The State (supra). 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 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, except for Justice Sevua, who in my view, tried to meaningfully review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra) and imposed varying sentences with the maximum at 25 years. Unfortunately, the Supreme Court struck it down to 18 years on the basis, that the sentence imposed by the National Court was a "quantum leap."

10. I considered the concept of "no quantum leap" and noted that, there was no expressed legislative prohibition against "quantum leaps." Instead, Parliament after having considered all things, prescribed the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter, a range. However, the judges have considered it appropriate to start as low as 5 years as per John Aubuku's (supra) and are yet to impose the maximum prescribed penalty of life imprisonment, except in one case, which I will shortly mention. In the meantime, this serious offence against society is on the increase. In the circumstances, I expressed the view that it is:

"...[I]nappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society's expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

11. Bearing these in mind, I decided to impose the term of 17 years as an appropriate pronouncement against the offence in that case. 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.

12. 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 the late Jalina J in The State v. Kunija Osake (2003) 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.

13. The only case that has imposed the maximum prescribed sentence of life imprisonment is 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 (18/05/01) SC666. 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 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 sentences require progressive increases rather than jumping from a term of years to life imprisonment.

14. I then expressed the view that the two National Court judgments cited above do in fact progressively increase the sentences in rape cases. I also noted that 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. I went on to say that whilst, I agree that public outcries against lenient sentences, a sentencing judge should nevertheless note that, this is an indication and response by the community to the kind of sentences imposed. The sentencing power the sentencing judges exercise power that belongs to the community and as such, they should respond appropriately to the community's reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases.

15. I gave a number of reasons for the views I expressed. These reasons are firstly, the courts have given sufficient warning of increases 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. In that regard, I note what the Supreme Court in Public Prosecutor v. Don Hale, (1998) SC564, as 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."

16. I noted that these principles, in my view, acknowledges in a more practical way and allows for an exercise at least in that limited way, by the people themselves in 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 (2001) SC671 and Application of John Mua Nilkare (1997) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

17. Further, I noted that, in subsequent judgments of Supreme Court, as in Tau Jim Anis & Ors. v. The State, (2000) 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, (2003) 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."

18. 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 (2004) N2588. In that case, the offender, a mature single man related to the victim, abducted and raped a married woman in the presence of two of the victim's small children. The offence was committed in a breach of trust situation.

19. On the same day, 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 Sibu (N0. 2) (Unreported judgment delivered on 2004) N2567.

20. Again, on the same day, in The State v. Eki Kondi & 4 Ors (No.2) (2004) N2543, 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 were given in view of the different roles each of the offenders played and their ages.

21. Finally, in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) case, I noted all of the foregoing and went on to note that, given the numerous calls for stiffer penalties throughout the country, Parliament intervened with amendments to the Criminal Code in the year 2002, reworded s. 347 in the way it is presently. Previously, it did not distinguish between rape with aggravation and those without aggravation with acts of simple rape having a maximum sentence of up to 15 years whilst aggravated rape having a maximum sentence of up to life imprisonment. I took the view that, this change in the law meant that:

"... where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then 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."

22. In The State v Luke Sitban (No 2) (2004) N2566 and The State v Henry Nandiro (No 2) (2004) N2668, I followed the approach in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra). Justice Lay did likewise in his decision in The State v Dibol Petrus Kopal (2004) N2778. Cannings J referred to these cases and endorsed the first part of what I said in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) and refrained from making any comment in relation to the second part.

23. Neither your lawyer nor that of the State took me through the above development of the law. Indeed, your lawyer did not draw to my attention any case that might be of assistance to the Court.

24. Then in the The State v Joe Kanau Tomitom case, I commented that, it was obvious on proper consideration of the above development of the law and the sentencing trend that sentences for rape has increased. Aggravated rape has attracted sentences beyond the 15 years mark. Only those with no aggravating features have received sentences below 15 years as the 14 years imposed in The State v Dibol Petrus Kopal (supra) may illustrate
    
25. I now note with interest that, the Supreme Court in its recent decision in Thress Kumbamong v. The State (2008) SCRA 29 of 2007, reaffirmed the fact that the National Court or a sentencing judge has wider discretion under s.19 of the Criminal Code to impose a sentence the sentencing judge considers appropriate and warranted in the particular circumstance of the case before him or her. Accordingly, no sentencing judge should feel imprisoned or restricted by notions or concepts such as "no quantum leap" or "too crushing" when sentencing an offender. That decision went on to clarify that, the Supreme Court cannot regiment or restrict the wide discretion granted by s.19 of the Code, but can only provide guidelines as to what kind of factors a sentencing judge should take into account before exercising the discretion. It went on to make it clear that, since criminal sentencing is not precise science or mathematics, there will certainly be difference in the kind of sentences imposed. What matters therefore is, what is a fair and reasonable sentence in the particular circumstances of each case.
    
26. Very recently, in the case of The State v. Alex Noga CR 1082 2007 (decision delivered yesterday) for a charge under s 229A(1), in circumstances that disclose rape by a close relative, I imposed a sentence of 17 years. The victim became pregnant also and gave birth to a child. She was forced to leave school and mother the unplanned child.
    

Sentence in Your Case

14. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you. Considering first the factors in your favour, I note firstly that, you have no prior conviction. The sentence you are now serving for incest is for one of two instances of sexual intercourses you had with your biological daughter but not on the same day. I do not consider that is a prior conviction. This means therefore that, until the commission of two sexual offences, you have been a good law abiding citizen. All of that has now been tarnished by your own senseless conduct against your own daughter.

15. Secondly, I note that, you did say sorry for what you have done. However, there is no evidence of you doing anything tangible to show that you are in fact sorry for what you have done. Most of our societies are used to symbolic demonstrations of how sorry one is after committing an offence. You showed nothing. Accordingly, whilst I note that you did say sorry, I have no basis to find that it is genuine. This will become clearer as we get into the factors against you.

16. On that note, I turn to a consideration of the factors against you. Firstly, I note that you were convicted after a trial. That forced your daughter and victim of your offence to come into Court and relive the bad memories of what you did to her against her will. In so doing, you caused the State to incur unnecessary costs to secure its witnesses to come into Court and testify against you. You also unnecessarily took up the Court's time in conducting the trial and come to a decision on your verdict when you had no evidence in rebuttal.

18. Secondly, I note that you engaged in, not only one incident of sexual intercourse with the victim but at least twice against her will. Had she not become pregnant and not returned to Bougainville where she found some support, you could have continued with your sexual exploitations of your own child.

19. Thirdly, as noted, your victim became pregnant, prematurely in that, she was under aged and that she was still in primary school. This resulted in her education being terminated also prematurely. You gave her a child without any prior planning and certainly outside a proper family. You took away her virginity and denied her of the right of choosing a suitable boyfriend and eventually a husband. You landed her with shame and ridicule. She is going to live with the effects of what you have done to her for the rest of her life so you ruined her for life.

20. Thirdly, you were in a position of trust as her father. After her mother died, you and No one in your daughter's position would have expected you to violate her repeatedly in the way you did but you did. There is no evidence of the victim doing anything to attract what you did to her. You destroyed the trust and confidence she had in you as a uncle. The law allows for stern punishment of people who commit offences in breach of trusts vested in them as in your case.

21. Finally, you committed an offence that is prevalent. It is the prevalence of this offence not only in Papua New Guinea but almost the world over that has caused Parliament to amend the law by increasing the penalties for all sexual offences. This is necessary because children, young girls and women in our society need the protection of everyone in the society. They have been repeatedly violated and treated by some, only as mere sex objects as if they have no human dignity and a right to life and a right to live in our various societies. The courts have followed Parliament's wish and have imposed stiffer penalties compared to what they used to impose prior to the change in the law.

22. I find that a careful consideration of the factors both for and against you, places your case closer to the cases of The State v. Peter Lare,[1] and The State v. Thomas Angup.[2] But I do note that, those cases were bit more serious than your case. You case is closer but more serious than the case of The State v. Alex Noga (supra). There are, however, two significant differences between your case and that case. Firstly, you paid no compensation and or otherwise meet the demands of society to express you your genuine remorse. Secondly, you denied the charge and that necessitated a trial. Accordingly, I consider a sentence of 18 years which falls in between these cases is appropriate and I impose that sentence against you.
    
23. I have given some serious consideration to suspending either the whole or part of the sentence and have decided against it because there is no pre-sentence report supporting such an exercise of discretion. More importantly, however, I not that, in sexual offences by older and stronger males against younger females, there is a propensity for the offender to re-offend. This is confirmed for instance by the repeated acts of sexual intercourse over a period of time in your own case, the case of The State v. Peter Lare,[3] and The State v. Thomas Angup.[4] Imprisonment of you is the only option left for the protection of the victim and to ensure that you do not re-offend against your victim or other possible victims.
    
24. In the end, you are left to serve your sentence in prison. I note that, the period you have already spent in custody was deducted from your incest sentence and since then you have been serving your sentence. Hence, there is no pre-sentence custody period to be deducted from your sentence.
    
25. The final matter I turn to your lawyer's submission for an application of the totality principle. He made that submission after conceding to your sentences for incest and now rape should be cumulative. This is because although you committed the offences against the same person, it was at different times. As such, they were different transactions, warranting different sentences.
    
26. The cumulative effect of your 5 year sentence and now 18 years sentence for rape will result in a total sentence of 23 years. I do not consider this would be crushing on you. I note that, in places like the United States and else where, sentence beyond one's life are often imposed. For instance double or triple life sentence have been imprisoned against some worse offenders while others have receive sentence well passed 100 years. In the circumstances, I decline to reduce your total sentence on the totality principle.
    
27. That should leave you to serve your total cumulative sentence of 23 years, less the period already deducted against the sentence for incest and the period you have already served under that sentence. I order that you serve your sentence in hard labour at a Correction Service facility here in Autonomous Region of Bougainville or at the Kerevat Correction Service in the East New Britain Province. A warrant of commit in those terms shall be issued forthwith.
    

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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^[1] Supra note 2.
^[2] Supra note 5.
^[3] Supra note 2.
^[4] Supra note 5.