State v Jokar (No 2) [2008] PGNC 62; N3362 (24 April 2008)

N3362

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 403 OF 2007

THE STATE
V
LUDWICK JOKAR (No. 2)
Prisoner

Wewak: Davani .J
2008: 23, 24 April

CRIMINAL LAW – sentence – aggravated rape – prisoner a village councillor – victim from a broken home – prisoner wielded power – guilty of 2 counts of aggravated rape

CRIMINAL LAW – sentence – trial conducted – appropriate sentence 6 years for each count – consideration of totality principle.

Facts

Prisoner was found guilty of 2 counts of aggravated rape after a trial. The victim lived in the same village as the prisoner where he was the village councillor. She came from a broken home. Under threats, the victim succumbed to the prisoner’s advances.

Held

Six (6) years on each count, to be served cumulatively, a total of 12 years.

Cases cited:

John Aubuku v the State [1987] PNGLR 267;
Paul Mase and Kopa Lore John v the State [1991] PNGLR 88, SC404;
The State v Thomas Waim [1995] PNGLR 187;
Lawrence Hindemba v the State (1998) SC593;
The State v Kevin Mariano [2000] PNGLR 240, N1984;
State v Robert Solomon (No. 1) CR 855 of 2005;
Robert Solomon v the State (2007) SC871;

Counsel:

L. Rangan, for the State
M. Mwawesi and F. Kirriwom, for the Prisoner

SENTENCE

24 April, 2008

1. DAVANI .J: On 23rd April, 2008, after a trial, this Court found the prisoner guilty of 2 counts of aggravated rape, charge laid pursuant to the amended s. 347 of the Criminal Code Act (‘CCA’) now found in s. 347 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (‘CCSOCAC’).

Evidence

2. &##160;e sav outt out in dein detail the facts surrounding the commission of the offence in my decision on verdict. For purposes os dec on sce, I set out the facts relevant for sentencing.

i. The vice victim ctim comes omes from a broken home;

ii. After grade 1, her parents separated and she moved to Karasau island, Wewak, with her mother and other siblings. That was in 1993. She continued to attend school and completed her grade 8 in 2000. She could not pursue high school because she did not have the school fees;

iii. Whilst she was resident on the island with her mother and guardian, the prisoner also lived there. He was the village councillor and still is;

iv. Since their move to the island, the victim and her younger siblings were not permitted by the prisoner to visit her natural father and her half brothers and sisters;

v. The victim said the prisoner sexually penetrated her without her consent, once in 2003 and once in 2005. She has a child from that relationship;

vi. The only time she visited her natural father and other family members was when they learnt of her pregnancy and reported the matter to the police.

3. ټ The vict victim lived in an environment where the prisoner wielded power. She had nobody to turn to. Within this environment, the prisoner committed the acts of sexual penetratip> 4.&##160;< The prisocceptedepted the the the court’s finding of guilt, adding that he was sorry for what had happened. He also told the court that he had a family who would now be left to fend for themselves. Against all these, I take into account the fact that rape is a serious crime which calls for immediate punitive custodial sentence. In this case, rape is committed by an adult. The victim was still a young, unmarried girl.

5. &#160ng ponitive sentences nces have been called for by the Supreme Court. (John Aubuku v the State [1987] PNGLR 267). In that case the Supreme Court shat rommity an without any aggravating or m or mitigaitigating ting featufeatures, sees sentence commence at 5 years. The National and Supreme Court in recent cases have called for a higher penalty and a review of John Aubuku (supra). (The State v Thomas Waim [1995] PNGLR 187). This was then done by the Supreme Court in Lawrence Hindemba v the State (1998) SC593 where the Supreme Court increased the appellant’s sentence from 10 to 15 years. This then resulted in the National Courts imposing higher sentences for rape involving violence, abduction etc. (The State v Kevin Mariano (2000) PNGLR 240 N1984, where a sentence of 20 years was imposed where victim was abducted at gun point, threatened into submission by use of weapons namely a knife and a gun and then repeatedly raped by prisoner and three others).

6. > (2007) SC871 decided on 30th August, 2007, the Supreme Court reduced sentence of 20 on eount pe (3ts in by 12 years. This resulted in 3 sentences each of h of 8 yea8 years tors to be s be servederved consecutively, a total of 24 years. In deciding that, the Supreme Court looked again at Paul Mase and Kopa Lore John v the State [1991] PNGLR 88, SC404, where the Supreme Court, on deciding the totality principle said;

"We do not consider that there is any hard and fast rule to be followed although it would be permissible for a sentence to take into account the maximum penalty provided by law for each offence and whether or not each offence committed falls into the worst, most serious or less serious of its kind. Also, the sentences should ensure that the total sentence imposed is not substantially above the normal sentence for the more serious (not the worst type) of the offences. The rationale behind this is ...common sense. Apart from the ‘worst type’ of cases where the maximum sentences are justified in cases of ‘more serious type’ an aggregate sentence might be too crushing...or manifestly excessive."

7. &&#160circ mstanmstances ofes of the case before the trial court in State v Robert Solomon (No. 1) CR 855 of 2005, dated 19th April, 2007, decided in Kimbe was far more serious than this case. at cahe vi the prhe prisoneisonerRr’s half sister, was subjected to sexual torment and rape at his hands for over 5 years. He treated her as a sex slave and she was a prisoner in her own home. She eventually became pregnant from him and with help from outsiders, ran away from the prisoner’s home, then laid charges against him.

8. ҈ I am boum bound by the SupCeme Court’s decision in Robert Solomon v the State (supra). Sentence for aggravated rape is now s 8 yeif I ay, against all that the trial court anrt and the Supreme Court have attempted toed to do o do over the years which is to increase sentences for rape cases.

9. Be the circumstances of thif this case are less serious than in State v Robert Solomon (supra), and taking into account the totality principle, the appropriate sentence for each count is 6 yearstence be ctive, a tota total of l of 12 ye12 years.

10. ـBaiies paes paid of d of K300.00 will be refunded upon production of the receipt.

___________________________________

Public Prosecutor: Lawyer for the State
Publiicitowyer for the Pris Prisoner