State v Deila [2009] PGNC 188; N3804 (20 August 2009)

N3804

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 418 0F 2008

BETWEEN:

THE STATE

AND:

JEROME DEILA
Prisoner

Alotau: Davani .J
2009: 19th, 20th August

SENTENCE – Guilty plea – aggravated rape – abuse of trust – accused, victim’s uncle – victim’s uncle used magical trickery, then raped victim, his niece – victim aged 18, accused aged 33 – serious aggravating factors – s.347(1)(2) of Criminal Code Act, as amended.

SENTENCE – 1 count of aggravated rape – must sentence according to rate set in single count rape case as opposed to multiple counts – totality principle - application of totality principle in multiple count cases – affects sentencing tariff set in single count cases.

Facts

Accused pleaded guilty to one count of rape after having sexually penetrated the victim. He used magical trickery in getting her to believe that she will become intelligent if she allowed him to remove hair from her genitalia that evil spirits had placed there.

What is an appropriate sentence?

Reasons

Sentencing range of 15 years set in Lawrence Hindemba v. The State (1998) SC593 is affected by the latest range of 8 years set by the Supreme Court in Robert Solomon v The State (2007) SC871. The Supreme Court in Robert Solomon (supra) held that sentencing in multiple count rape cases is affected by the totality principle resulting in the Courts not adhering to the maximum sentencing range set by earlier Supreme Courts in single count rape cases. But a sentencing court with one count of rape before it, must sentence based on the latest sentencing tariff set by the Supreme Court, in single count cases and should not be affected by the sentencing range set in Robert Solomon (supra).

Accused is sentenced to 15 years less time spent in custody of 2 years, 1 week and 1 day.

Cases law

John Aubuku v. The State [1987] PNGLR 267
Thomas Waim v. The State (1997) SC519
The State v. Patrick Kapilo (2002) N2221
Lawrence Hindemba v. The State (1998) SC593
The State v. Peter Ilam (2006) N3090
Robert Solomon v. The State (2007) SC871
The State v. Ludwick Jokar (No. 2) (2008) N3362

Counsel:

R. Yayabu, for the Prisoner
A. Lloyd and S. Lipai, for the State

SENTENCE

20th August, 2009

1. DAVANI .J: On 19th August, 2009, Jerome Deila pleaded guilty to one count of aggravated sexual penetration, charged laid under s.347 (1)(2) of the Criminal Code, as amended. This provision reads;

"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."

Evidence

2. The facts that the prisoner pleaded guilty to are that on 8th August, 2007 at Jungo Village, Misima Island, the prisoner was at the victim’s family home. At that time, she was in grade 11 and was aged 18. The prisoner, being the victim’s uncle, was with the victim and the whole family, and was entertaining them with some magical tricks. He then told the victim that he would make her clever by performing a magical trick but that the whole family would have to leave for that to happen and that they would have to switch off the lights so as not to disturb the spirits.

3. After the family left, the prisoner told the victim, one DM, that spirits of dead people had placed some hair in her genitalia and that he would have to remove them. The victim, believing the prisoner, obliged whereupon he subsequently sexually penetrated her private parts by using his finger and his penis.

4. After 3 days the victim told her mother because she felt ill and also because she failed her geography exam.

Mitigating factors

5. There are the prisoner’s guilty plea, that he is a first time offender and his expressions of remorse.

Aggravating factors

6. The prisoner is the victim’s uncle. He abused his position of trust by seducing the victim, then he had sexual intercourse with her, without her consent. There is also a large age difference, the prisoner aged about 33 at the time of the incident and the victim, only 18.

Analysis of evidence and the law

7. The offence of rape committed by those in positions of trust in this country, is very prevalent. Although the Courts have been imposing sentences reflecting the seriousness of the offence, this has not had the desired effect of deterring offenders. The Courts continue to hear these cases, countrywide. Which of course means that the children of this country, both male and female from infants as young as 3 months to adults, are very vulnerable and are at the mercy of those who call themselves their protectors. So the Courts must continue to impose sentences that will justify the pain, suffering and psychological damage the infant child or teenager suffered, is suffering and will continue to suffer. Unfortunately, the term of years to be imposed cannot be measured against the pain and suffering, both mental and physical, that the victim endured and will continue to undergo or endure.

8. The State submits that a term of years between 14 to 20 years is warranted under the circumstances. Ms Lipai for the State submits this relying on Lawrence Hindemba v. The State (1998) SC593 where on an appeal, the Supreme Court increased sentence of 10 years to 15 years. She also relied on the case of The State v. Peter Ilam (2006) N3090 dated 23rd August, 2006, where the prisoner pleaded guilty to charges of rape and sexual touching. The Court held there that the starting point for rape is 14 years.

9. Ms Yayabu for the prisoner submitted that the Court should sentence to a term of 10 years. She relied on John Aubuku v. The State [1987] PNGLR 267; Thomas Waim v. The State (1997) SC519; The State v. Patrick Kapilo (2002) N2221.

10. The State v. Patrick Kapilo (supra) is very similar to this case in that on a guilty plea to one count of rape of a 20 year old grade 12 female student, the accused was sentenced to 10 years. The similar facts are that the accused in that case coaxed the victim into having sex with him after making her believe that he could summon evil spirits at anytime and that the evil spirits would enable her to obtain large sums of money.

11. In my view, rape of a child is the most despicable act, ever. Sentences imposed by the Courts in this country have not changed the attitude of men who are determined to sexually molest or assault infants, toddlers, teenagers and adults, be it female or male. From the cases cited to me, the most recent being The State v. Peter Ilam (supra), I accept that on a guilty plea to a charge of rape and the abusing of a position of trust, sentencing must begin at 14 years. But I also take note of Robert Solomon v. The State (2007) SC871 decided on 30th August, 2007 where the Supreme Court reduced sentence of 20 years each on 3 counts of aggravated rape, by 12 years resulting in sentence of 8 years each to be served consecutively, a total of 24 years. In that case, the victim who was the prisoner’s half-sister, was subjected to rape and sexual torment at his hands for over 5 years, which resulted in her getting pregnant and giving birth to a child. He treated her as a sex slave and she was a prisoner in her own home until with some help from outsiders, she was able to run away, then lay charges against the prisoner. (See State v. Robert Solomon (No. 1) CR 855 of 2005 dated 19th April, 2007 per Davani .J).

12. So, the Supreme Court has effectively reduced the starting point in sentencing in rape cases, to 8 years. I was confronted with his dilemma when sentencing after a trial in The State v. Ludwick Jokar (No. 2) (2008) N3362, where the accused, the child’s guardian, using his position of trust and the fact that the victim came from a broken home, sexually penetrated her on 2 occasions. I sentenced him to 6 years on each count, a total of 12 years.

13. These 2 cases involved a number of counts where the totality principle was very influential in the number of years to be imposed. The same can be said of the State v. Peter Ilam (supra). But the trial Judge treated the 2 offences as one sequence of events and imposed the term of 14 years. This sentence was not appealed.

14. Obviously, the totality principle is very influential in the term of years to be imposed and that sentences to be imposed in rape cases for a separate count, is often well below the starting range set in single count rape cases. Therefore, as is the law set by the Supreme Court in Robert Solomon (supra) and considering the effluxion of time since Robert Solomon, and sentence set by an earlier Supreme Court in Lawrence Hindemba (supra), which case did not involve multiple counts and the application of the totality principle and was a guilty plea, together with Peter Ilam (supra) the sentencing range in aggravated rape, single count cases, must commence from 15 years.

15. This Court will sentence the prisoner to 15 years in hard labour. Time spent on remand of 2 years, 1 week and 1 day will be applied towards reduction of sentence.

16. The prisoner shall serve the reduced term of 12 years, 11 months, 2 weeks and 6 days in hard labour.

_________________________________________

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