State v George [2008] PGNC 52; N3358 (23 May 2008)

N3358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1160 OF 2007

THE STATE

V

EMMANUEL GEORGE
Prisoner

Waigani: David, J
2008: 16 and 23 May

CRIMINAL LAW – sentence – rape - guilty plea – victim is an in-law – prisoner residing in victim’s house – crime in victim’s room – room initially closed – eight years imprisonment in hard labour – 347 (1) Criminal Code.

Cases cited:

Goli Golu v. The State [1979] PNGLR 653
Avia Aihi v. The State (No.3) [1982] PNGLR 653
Ure Hane v. The State [1984] PNGLR 105
John Aubuku v. The State [1987] PNGLR 267
The State v. Kenneth Penias [1994] PNGLR 48
James Meaoa v The State [1996] PNGLR 280
Thomas Waim v. The State [1997] PNGLR 201
The State v. Nick Teptep (2004) N2612
The State v. Seyo Aroko (2005) N2822
The State v. James Yali (2006) N2989
The State v. Michael Waluka Lala, CR No.215 of 2004

Counsel:

T. Ai and L. Kegana, for the State
J. Mesa and M. Yawuip, for the Prisoner

DECISION ON SENTENCE

23 May, 2008

1. DAVID, J: The State presented an indictment against Emmanuel George who is from Wazu village, Kokoda in the Oro Province charging him that on 24 December 2006 at Gerehu in Papua New Guinea he engaged in an act of sexual penetration with one Marie Therize Aruo without her consent by inserting his penis into her vagina contrary to s.347 (1) of the Criminal Code. The prisoner pleaded guilty. A conviction was recorded after the Court accepted the prisoner’s guilty plea.

BRIEF FACTS

2. The Prisoner pleaded to these brief facts which were presented for the purpose of arraignment.

3. On Saturday, 23 December 2006, the victim Mary Therize Aruo went out for a dance with her daughter. They returned at about 01.30 am in the wee hours of the next day. The victim went straight to her bedroom and went to sleep.

4. Sometime later, she realised that someone was having sexual intercourse with her. She awoke and found the prisoner on top of her with his penis in her vagina. The victim pushed the prisoner away from her and she quickly got up and switched the light on. She then saw the prisoner naked. After realising that he had been recognised, the prisoner left.

5. The matter was reported to the police and the prisoner was later arrested.

MEDICAL REPORT

6. Dr. Bannick of The Private Hospital & Clinic provided the medical report in respect of the victim dated 27 December 2006.

7. The victim was examined at The Private Hospital & Clinic on 24 December 2006 following her ordeal. No external injuries were detected, but pelvic examination revealed the presence of semen around the external genitalia area and within the vagina. A swab was taken from both the external and internal part of the vagina for microscopic examination and the microscopy report confirmed the presence of spermatozoa. This confirmed that there was sexual penetration.

ALLOCATUS

8. The prisoner said sorry to the victim and also requested the Court to have mercy on him.

ANTECEDENTS

9. The prisoner is aged thirty nine years now having been born in 1969 and single. He was residing at Gerehu Stage 3A in the National Capital District with the victim and her husband Silas Aruo who is his cousin at the time of the commission of the offence. He, as alluded to earlier, is originally from Wazu village, Kokoda District in the Oro Province and is a baptised member of the Anglican Church. He received his primary education at the Kebara Community School and later attended the Kokoda Vocational School. From 1992 to 1993 he was employed as a security guard with the Department of Works in Port Moresby, but was unemployed at the time of the crime.

10. The prisoner has no prior convictions.

THE LAW

11. The prisoner is charged under s. 347 (1) of the Criminal Code to which he has pleaded guilty and his subsequent conviction. That provision creates the offence as well as prescribing the penalty. The maximum penalty is subject to subsection (2), imprisonment for fifteen years. I set out the provision below:-

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.

12. Circumstances considered as "Circumstances of aggravation" are, for the purposes of Division 7, Sexual Offences and Abduction, set out under s.349A of the Code. That provision states:

349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but 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).

13. The prisoner has not been charged with any circumstances of aggravation in the indictment to consider sentence under s.347 (2) of the Code: see also ss.1 (1), 528 (2) and 538 of the Code.

14. It is trite law that each case should be considered in the light of the different and peculiar circumstances under which they occur and that the maximum penalty is usually reserved for the worst case: see Goli Golu v. The State [1979] PNGLR 653, Ure Hane v. The State [1984] PNGLR 105 and Avia Aihi v. The State (No.3) [1982] PNGLR 653.

15. In considering an appropriate sentence to impose in a rape case, the proper approach would be to have regard to the guidelines for sentencing rape offenders which are set out in John Aubuku v. The State [1987] PNGLR 267 where five years is the starting point for rape by an adult without any aggravating factors and eight years is the starting point where two or more people gang rape a victim. The tariffs recommended there are now generally regarded as out of date as being inadequate, inappropriate and no longer applicable to the circumstances of the country today in the light of the escalation and prevalence of the crime and sentiments have been expressed by the courts to review the existing guidelines with a view to increasing sentences: see Thomas Waim v. The State (1997) SC519, Lawrence Hindemba v State (1998) SC593, James Meaoa v The State [1996} PNGLR 280 and The State v. Nick Teptep (2004) N2612. I am not aware of any new Supreme Court guidelines superseding those recommended in John Aubuku.

16. In The State v. James Yali (2006) N2989, Cannings, J suggested ten years as the starting point. While that may be a reflection of the current sentencing trend which His Honour arrived at after surveying a number of judgments delivered between 2003 and 2005 involving the offences of rape and sexual penetration of a child, it does not necessarily mean that I should depart from applying the guidelines approved by the Supreme Court in John Aubuku. Following the suggestion of His Honour will offend against the principle of stare decisis: see Schedule 2.9 of the Constitution.

17. In John Aubuku, the Supreme Court also said that rape is a serious offence which attracts an immediate custodial sentence except in very exceptional circumstances.

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

18. Mr Yawuip of counsel for the Prisoner submitted that the following mitigating factors should be taken into account in the Prisoner’s favour and they are; the prisoner’s guilty plea; he was a first time offender; he showed remorse which was consistent with the prisoner’s admission from day one; the victim did not suffer any physical injury and no weapons were used.

19. Against these, the aggravating factors he said were that there was a breach of trust and the prisoner took advantage of the drunken state of the victim.

20. Counsel referred to James Yali, The State v. Seyo Aroko (2005) N2822 and The State v. Michael Waluka Lala, CR.215 of 2004, cases involving s.347 (1) of the Code when submitting that this was not a case of the worst type and that a sentence between five to eight years was appropriate in the circumstances of this case less time already spent in custody. I discuss those cases briefly below.

21. In James Yali, the prisoner, aged 41 and a serving member of the National Parliament and Governor of the Madang Province was sentenced to twelve years after a trial. He was convicted for raping his de-facto wife’s sister. The victim was aged seventeen years. The prisoner acted alone and the victim did not suffer physical injury. The violation of trust was amongst aggravating factors that operated against the prisoner.

22. In Seyo Aroko, the prisoner aged 18 years raped a mother of a nine months old baby. The baby was separated during the attack. Some violence was used and the victim was wounded by a knife, but the attack was not pre-meditated. On a guilty plea, a sentence of eight and a half years was imposed.

23. In Michael Waluka Lala, the prisoner forced the victim to suck his penis. There was no aggravated violence; the prisoner had no prior and expressed remorse. On a guilty plea, a sentence of four years was imposed.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

24. Mr. Ai of counsel for the State submitted that the maximum penalty of fifteen years is for worse cases. This case was not. However, he submitted that whilst this case is not of the worst type, all rape cases are serious. In this case he said there was a serious breach of trust in that the prisoner was residing with the victim (his in-law) and her husband who is his cousin when the incident occurred.

25. Counsel suggested that a term of eight years was appropriate.

REMARKS

26. Whilst I accept that this is not a case of the worst type, the crime by its nature is very serious. Women are constantly being abused and violated by the opposite sex against their own free will and perceived as sex objects to satisfy their lust. I adopt the sentiments expressed by Injia, AJ (as he then was) in The State v. Kenneth Penias [1994] PNGLR 48 at p.51 where His Honour stated:

Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence.

27. In Nick Teptep, Sevua, J expressed similar sentiments. His Honour stated:-

Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.

28. I also accept the mitigating and aggravating factors advanced for and against the prisoner by counsel. I will also take into account the fact of his cooperation with the police as is demonstrated by his admission in the Record of Interview which he maintained all along up to his conviction; his antecedents; it was an invasion of the victim’s privacy when the crime took place in the victim’s own bedroom and the door to it was initially shut; the prisoner was aged about thirty seven years and the victim aged forty four years at the time.

29. In this case, the prisoner was unemployed and residing with the victim and her husband Silas Aruo, a cousin at their residence at Gerehu Stage 3A. He had been provided shelter and food by the couple in the comfort of their home for a period of about six months. The prisoner’s cousin who was employed by Porgera Joint Venture was away in Porgera when the incident occurred. What he did in preying on an innocent women in a drunken state, but in the privacy of her bedroom was a serious breach of the trust bestowed upon him whether de-facto or not. When he was supposed to look after and protect his cousin’s family when he was away on duty, he did what he did instead.

30. I also consider that this case is not as serious as James Yali and Seyo Aroko.

SENTENCE

31. I will consider an immediate punitive custodial sentence as I find no exceptional circumstances in this case.

32. I think, a sentence of eight years imprisonment in hard labour to be served at the Bomana gaol is appropriate in the circumstances of this case. The prisoner has been in custody since his arrest which I calculate to be a period of one year and five months. The pre-trial detention period shall be deducted from the head sentence leaving a period of six years and seven months to be served.

33. A warrant shall issue forthwith to give effect to this sentence.

I order accordingly.

________________________________________

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