State v Kombo [2009] PGNC 180; N3816 (19 November 2009)

N3816

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 302 of 2009

THE STATE

V

PHILIP KOMBO

Kavieng: Ellis J
2009: 19 November

JUDGMENT ON SENTENCE

CRIMINAL LAW – Sentence - Particular offence – Aggravated rape – Verdict of guilty – Offender raped his step-daughter - First offender – Sentenced to 18 years’ imprisonment - Criminal Code, section 347(2)

Cases cited:

John Aubuku v The State [1987] PNGLR 267
The State v Kaudik [1987] PNGLR 201
Thomas Waim v The State (1996) SC519
State v Luke Sitban N2566
State v Joe Sime (CR1078 of 2004)

Counsel:

Mr F Popeu, for the State
Mr D Kari, for the Offender

19 November, 2009

1. ELLIS, J: The offender has been found guilty of a charge of aggravated rape brought under section 347(2) of the Criminal Code for which the maximum penalty is imprisonment for life.

2. For the purposes of sentencing, the evidence considered was the evidence led during the trial which resulted in a finding that at Kesalok, on the night of 11 October 2008, the offender raped his step-daughter.

3. The findings of fact made at the conclusion of the trial were as follows:

(1) At about 7pm on the night of 11 October 2008 the offender went to the house of Yolinda Tamas.

(2) With the assistance of a security guard, and after some foul language, he got his step-daughter to join him in the car.

(3) At that time there were six people in the car: the offender, two male friends of his, a security guard and his wife, and the victim.

(4) The security and his wife were dropped off, after which there were four people left in the car.

(5) The offender then drove the vehicle to Lemakot where he bought items which included a six pack of beer and some soft drink.

(6) The offender and his two male friends drank that beer.

(7) The first and then the second of those two men were dropped off.

(8) After the only people left in the care were the offender and the victim, he drove to a secluded area where he had sexual intercourse with the victim without her consent.

(9) That was the first time the victim had ever had sexual intercourse.

(10) The conduct of the offender on that occasion included:

(a) trying to kiss the victim on the mouth;

(b) licking his finger and placing it in her vagina in an attempt to sexually arouse the victim and to enable him to have sexual intercourse with her;

(c) sucking on her breasts;

(d) putting his penis into her vagina;

(e) licking her vagina; and

(f) re-inserting his penis into her vagina and continuing to have sexual intercourse with her until he ejaculated.

(11) At no time did the victim consent to any of that conduct.

(12) On the contrary, the victim was struggling throughout that conduct.

(13) As a result of the measures the offender took in response to the victim struggling, she sustained an injury to her left shoulder which resulted in a bruise.

(14) After such conduct the offender gave the victim K40 and promised to give her K60 later.

(15) Having satisfied his sexual desires, the offender drove the victim back to the family home.

(16) They arrived at that home at about 2am.

(17) The victim did not tell her mother what had happened by reason of the presence of the offender, her step-father.

(18) However, after going to her bedroom, the victim told her sister what had happened.

(19) The next morning, after the offender had left the house, the victim told her mother what had happened and gave her mother the K40 she had received from the offender the previous evening.

(20) When the offender returned to the house an argument between the offender and the mother of the victim began.

(21) The police were called.

(22) The offender was subsequently questioned by the police.

(23) The victim was medically examined at Kavieng Hospital which revealed a ruptured hymen and the presence of sperm in the vagina.

(24) Prior to 11 October 2008 the offender had developed a sexual desire towards the victim which was the result of and was revealed by his trying to secretly observe her in her bedroom and when she washed.

(25) At all material times, the victim was the step-daughter of the offender in that he was married to her mother.

4. I have been informed that the offender has no criminal history.

5. When provided with an opportunity to address the court after being found guilty of this offence, the offender said “If the court has found me guilty then I ask the court to have leniency on me”.

6. On behalf of the offender, Mr Yagri submitted that the offender is aged 44 and had a Grade 10 education. He is currently employed by the Provincial Government in the Office of the Governor. He has spent 4 months and 2 weeks in custody. Mr Yagri submitted that the starting point in this instance was imprisonment for 15 years and suggested that the range in this instance was imprisonment for between 15 and 20 years. I was referred to decisions which involved other kinds of sexual offences. However, in my view, it is difficult to make such comparisons when both the facts and the charges differ.

7. Sentencing principles for charges of rape were set out by the Supreme Court more than 20 years ago in John Aubuku v The State [1987] PNGLR 267 and The State v Kaudik [1987] PNGLR 201. In Thomas Waim v The State (1996) SC 519 the Supreme Court noted that there had been an escalation in the prevalence and seriousness in the commission of rapes. While the guideline starting points must now be regarded as out of date, especially in view of the amendments made to the Criminal Code in 2002, the framework of aggravating and mitigating factors remains relevant. I note the view expressed by Kandakasi J in State v Luke Sitban N2566, which was apparently followed by Cannings J in State v Joe Sime (CR1078 of 2004), that the proper starting point for cases of aggravated rape is 15 years.

8. It could be said that an aggravating factor in this case is that the person the offender raped was his step-daughter although that is, of course, an ingredient of the offence. The real aggravating factor in this case is the conduct of the offender and his treatment of his step-daughter on the night in question.

9. There do not appear to be any mitigating factors in this case. I do not regard the fact that the offender has no prior convictions as a mitigating factor as I consider the preferable approach is to regard prior convictions as an aggravating factor.

Remarks to the victim on sentence

10. When describing sexual intercourse, people sometimes refer to it as making love. What you experienced that night was not love: it was lust. It is to be regretted that your introduction to sexual intercourse that night was so horrible. I hope that the completion of these proceedings will help you to put this incident behind you because you cannot undo what has happened.

11. Having reached Grade 10, I would encourage you to resume your studies and to continue your education through to Grade 12. Perhaps you will be able to set your sights on some job or other goal that will enable you to focus on the future and not the past. You might find that by continuing your studies you can make a difference not only to your own life but to your community and your country. Who knows, you might even become a rape counselor.

12. Since your step-father has shown the court that he does not know how to treat women, he will this afternoon be taken to a place where there are no women. I hope that by the time he is released from prison you already have a family of your own so that you can show your children the kind of love your mother has shown you. Finally, I salute the fortitude you showed in giving evidence in this matter. You could have taken the easy course of just staying at home and not telling your story. For people who commit crimes to be convicted of those crimes, people like you should come to court and tell their story.

Remarks to the offender on sentence

13. These days the court can consider statements which indicate the impact which an offence has had on the victim and that victim’s family. I note the following words from what the mother of the victim said in her statement:

“Philip has really destroyed my family, my health and my wellbeing has been affected too because of the pressures that I have been going through. He had no right to take away Elmyra’s virginity with force, he was supposed to be a father and a person she could trust and look up to because she did not have a father when he came to live with us. His actions have disgraced us, caused us shame and pain... My daughter Elmyra is now going through sleepless nights, nightmares, shame and feeling that she is bad and not wanting to go to school. I as her mother am going trough a lot too. I wake up worrying about Elmyra’s future, how will I talk to her and what will become of her, how she will cope with everyday life from now on, it is not easy.”

14. You not only robbed your step-daughter of her virginity when you raped her that night, you treated her like a prostitute by giving her K40 and promising her another K60. It is conduct like this that makes the word “disgusting” seem insufficient. As a result of this incident, it is clear that your daughter has been physically, mentally affected, psychologically affected and educationally affected.

15. It is conduct like yours that sets an example: a very bad example. That is why your sentence will set an example: a good example of what will happen when the lives of young women are so brutally affected by people they should be able to trust.

16. It has been said by other courts in Papua New Guinea that I should, in a case such as this, start with a sentence of imprisonment of 15 years and then increase that sentence to take into consideration any aggravating factors and reduce that sentence to take into consideration any mitigating factors. I have decided to impose a sentence higher than that starting point because of what you did to your step-daughter that night.

17. Taking into consideration what you have said and what has been said on your behalf by your lawyer. I sentence you to imprisonment with hard labour for 18 years. From that term will be deducted a period of 4 months 2 weeks to take into account the time you have already spent in prison. That leaves a term of 17 years and 7 months 2 weeks to be served from today.

Sentenced accordingly.

__________________

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offender