State v Pakai [2010] PGNC 127; N4125 (12 August 2010)

N4125

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 1107 OF 2007

THE STATE

V

TAULAOLA PAKAI, MOTOUBWA KASEGALA,
JUNIOR NIMROD and MORATAYA GISIGESI

Losuia: Hartshorn J.
2010: 5th, 10th, 11th, 12th, August

CRIMINAL LAW – Sentence – Rape – conviction after trial

Facts:

The accused were all convicted for the charge of rape contrary to s.347 (1) of the Criminal Code Act. One of the co-accused led the victim to a friend's house and allowed the other co-accused including himself to take turns in raping her.

Held:

1. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered.

2. The predominant aggravating factor is that it was a multiple or gang rape.

3. All of the offenders are equally at fault, about the same age and all should suffer the same fate.

4. Junior Nimrod and Morataya Gisigesi are sentenced to 13 years imprisonment with hard labour.

5. Taulola Pakai and Motoubwa kasagala are sentenced to 13 years and 6 months imprisonment with hard labour.

6. Amount of time spent in pre-trial custody shall be deducted from the total sentences.

Cases Cited:
Maima v. Sma [1971-72] PNGLR 49
Lawrence Hindemba v. The State (1998) SC593
John Aubuku v. The State [1987] PNGLR 267
The State v. Lucas Yovura (2003) N2366
The State v. Junior Apen Sibu (No. 2) (2004) N2567
The State v. Ekondi (No 2) (2004) N2543
The State v. Garry Sasoropa (No 2) (2004) N2569
The State v. Donald Poni (2004) N2663
The State v. Bernard Nanau Porai (2005) N2944
The State v. Noutim Mausen (No.2) (2005) CR 596/04
The State v. Sorex Smek (2007) CR 318/07 Vanimo
The State v. Malcolm Sedi (2007) CR 175/06 Buka
The State v. Terence Siuana (2007) CR 183/07 Buka
The State v. Sylvester Kalubaku Tapoiguyau (2010) CR 1893/05 Losuia

Counsel:

Mr. J. Done, for the State
Mr. Kipa and Mr. G. Pipike, for the Accused

12th August, 2010

1. HARTSHORN J. The four accused have been convicted of the charge of rape pursuant to s. 347 (1) Criminal Code, that was committed on 3rd October 2005 at Okaiboma, Losuia, Milne Bay Province.

2. The brief facts are that on 3rd October 2005, the four accused were at Okaiboma Village, Losuia. At about 10pm, the accused Junior Nimrod (Nimrod) approached the victim who had just finished a singing ministry at Okaiboma Uniting Church. Nimrod asked the victim if she would go to a friend's house for the night. She agreed. Nimrod took her to the house of the accused Morataya Gisigesi (Gisigesi). Nimrod then left the house. As it was about 10pm the victim had laid down to sleep. Gisigesi then entered the house, removed the clothes of the victim and had sex with her without her consent.

3. After having had sex with the victim, Gisigesi left and the accused Taulaola Pakai (Pakai) entered, laid upon the victim and had sex with her. Pakai had a knife and threatened the victim. Pakai left and then the accused Motoubwa Kasegala (Kasegala) entered, laid upon the victim and had sex with her. As Kasegala left, Nimrod entered and found the victim crying. The victim told Nimrod what had occurred. The victim refused to have sex with Nimrod but he went ahead and had sex with the victim.

4. The offence comes under s. 347(1) Criminal Code and the penalty is prescribed as subject to Subsection (2), imprisonment for 15 years. As no circumstances of aggravation were contained in the indictment the maximum penalty of imprisonment for life, does not apply in this instance.

Circumstances of the offenders

5. Pakai is now 21 years of age and is single. His parents are alive, he is villager and a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim and requested that he be placed on a good behaviour bond.

6. Nimrod is now 20 years of age, his parents are alive but live in Lae. He lives with his grandparents and also is a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim. He requested that he be placed on a good behaviour bond so that he could remain in his village and look after his grandmother.

7. Gisigesi is now 23 years of age, his parents are alive and he has two siblings. He is also a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim, sought the mercy of the court and requested that he be placed on a good behaviour bond so that he could look after his parents in his village.

8. Kasegala is now 22 years of age, his parents are alive and he is the first of three siblings. He does not have any previous convictions. He apologised for what he had done including to the victim. He also sought a good behaviour bond so that he could look after his father who is blind in both eyes.

9. Counsel for the offenders requested that the Court take into account the following mitigating factors; that they are all first-time offenders, they were all youthful at the time of the offence and remain youthful, the age difference between the offenders and the victim is not significant being between one and three years, the victim being 15 years of age at the time, all of the offenders had expressed how remorseful they are, a compensation payment was made to the complainant and her family a few days after the offenders were arrested in October 2005 and documentary evidence to this effect was produced to the court, the complainant did not suffer any physical injury as a result of the incident, it was not a planned rape but one that just happened, there is no evidence of any sexual disease being transmitted to the complainant, although all of the offenders pleaded not guilty they were only exercising their constitutional rights, although two of the offenders had a knife and a short crowbar there was no evidence that they were used and no violence was used in the course of the rape.

10. Counsel for the accused submitted that the maximum sentence should be reserved for the worst type of rape and that this was not the worst type. He referred to the case of The State v. Donald Poni (2004) N2663, where the offender, a member of a five member gang rape, which included abduction, and a breach of trust was sentenced to 19 years in prison following a not guilty plea.

11. As to Poni's case and others where offenders have been sentenced to more than 15 years in prison, those cases would have had circumstances of aggravation included in the indictment. That is not the case here.

12. Counsel for the State submitted that the aggravating factor in this case was that it was a gang rape of the victim. He emphasised that rape is prevalent in this country and especially in Losuia. He further submitted that rape is a crime of violence and that the sentence that this Court imposes should serve as a deterrent. It was also submitted that the offenders had pleaded not guilty and thus the victim had to relive her experience. In addition, the State had incurred all the associated expenses in conducting a trial. The court was requested to consider a sentence within the range of 11 to 15 years imprisonment.

13. As I have mentioned in another decision on penalty for a charge of rape during this circuit, the general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum in this instance is 15 years as there are no circumstances of aggravation contained in the indictment.

14. The Supreme Court case of John Aubuku v. The State [1987] PNGLR 267 provided guidelines to be taken as appropriate for the sentencing for rape although since then the Supreme Court has called for sentences to be reviewed upwards: In Lawrence Hindemba v. The State [ 1998] SC 593 it was stated that;

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly reiterated 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."

15. The relevant guidelines in Aubuku's case (supra) for present purposes are:

"(1) the offence is a serious crime to be punished by an immediate custodial sentence other than in wholly exceptional circumstances,

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point (then, 5 years);

"a) violence over and above the force necessary to rape,

b) use of a weapon to frighten or wound the victim,

c) the rape is repeated,

d) the rape has been carefully planned,

e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind,

f) the victim is subjected to further sexual indignities or perversions,

g) the victim is either very old or very young,

h) the effect upon the victim, whether physical or mental,"

16. In this case the violence used could be said to be no more than was necessary to commit the rape. However two of the offenders carried a knife and a short crowbar although there is no evidence that they were used. The victim's age of 15 years is young. The other factors do not apply here.

17. As to the sentence to be imposed, I have had recourse to the following cases:

a) The State v Junior Apen Sibu (No.2) (2004) N2567 where Kandakasi J. imposed a sentence of 13 years upon a 16 year old male who raped a 10 year old relative. There were aggravating features in that case; the age of the victim and that she was a close relative.

b) The State v. Bernard Nanau Porai (2005) N2944 where Lay J. imposed a sentence of 10 years upon a 23-year-old offender who raped a 15-year-old victim. There were no aggravating circumstances.

c) The State v. Noutim Mausen (No.2) (2005) CR 596/04 where Cannings J. imposed a sentence of 10 years upon a 20-year-old offender convicted after a trial of raping a middle-aged woman. There was a threat to use a bush knife but there were no circumstances of aggravation charged.

d) The State v. Sorex Smek (2007) CR 318/07 Vanimo, where I initially imposed sentences of 9 and 10 years upon a 27 year old offender who had been found guilty of 2 counts of rape upon a victim determined as being 15 years of age. There were no circumstances of aggravation charged. These sentences were reduced when imposed consecutively to give a total sentence of 13 years.

e) The State v. Malcolm Sedi (2007) CR 175/06 Buka, where I imposed a sentence of 10 years upon a 22-year-old offender who pleaded guilty to raping a 15-year-old woman. There were no circumstances of aggravation charged.

f) The State v. Terence Siuana (2007) CR 183/07 Buka, where I imposed a sentence of 9 years upon a 20 to 25 year-old offender who pleaded guilty to raping a 19-year-old woman. There were no circumstances of aggravation charged.

g) The State v. Sylvester Kalubaku Tapoiguyau (2010) CR 1893/05 Losuia, where I imposed a sentence of 11 years with the last 2 years suspended with conditions, upon a 21-year-old offender who had pleaded not guilty to raping an 18-year-old woman. There were no circumstances of aggravation charged.

Where there was more than one offender:

h) The State v. Ekondi (No 2) (2004) N2543, where Kandakasi J imposed sentences of 25, 22, 20 and 18 years in prison against a gang of rapists. They were armed and the victim was forcibly abducted. There were several acts of rape.

i) The State v. Garry Sasoropa (No 2) (2004) N2569, where Kandakasi J sentenced to 25 and 22 years in prison for taking turns in raping a victim. Those sentences had their last 8 years suspended.

j) The State v. Donald Poni (2004) N2663, where Kandakasi J imposed a sentence of 19 years in prison against a member of a five-member gang rape which included abduction and a breach of trust.

18. As to the sentence that should be imposed, I referred earlier to the fact that all of the offenders had sought to be placed on good behaviour bonds so that they could remain in their respective villages to care for family members. In this regard I refer to the comments of Kandakasi J in The State v. Lucas Yovura (2003) N2366 where his Honour said that an offender's background or family circumstances or concerns should have little or no weight against the need to impose a sentence or punishment that best befits the offence committed. I respectfully agree with those comments. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered.

19. In this case the offenders were 17, 19, 16 and 18 years of age when they committed the offence and the victim was 15 years of age. The predominant aggravating factor in this case is the fact that it was a multiple or gang rape. All of the offenders are equally at fault, about the same age and all should suffer the same fate. I will impose a slightly greater sentence upon Pakai and Kasegala as they threatened the victim with a knife and a short crowbar respectively.

20. After taking all of the mitigating and aggravating factors into account the appropriate sentences and the ones that I impose are sentences of 13 years imprisonment with hard labour upon the accused Junior Nimrod and Morataya Gisigesi and sentences of 13 years and 6 months imprisonment with hard labour upon the accused Taulola Pakai and Motoubwa Kasegala. I do not believe it is appropriate in the circumstances that any part of the sentences should be suspended. For the avoidance of doubt there shall be deducted from their terms of imprisonment the period in custody that each of the offenders have already spent in relation to this matter.

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Office of the Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offenders