State v Ekalia [2011] PGNC 281; N4603 (29 July 2011)

N4603

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1285 OF 2009

STATE

V

PETER FREEMAN EKALIA
Accused

Waigani: Kirriwom J
2011: 14, 15, 18, 19, 20, 21 & 29th July

Cases Cited

State v. Jeffrey Wangi [2006] N3016
James Mora Meaoa v. The State [1996] PNGLR 280
The State v. Thomas Waim [1995] PNGLR 187
Thomas Waim v. The State [1997] SCRA 519
Ian Napoleon Setep v. The State [2001] SC 666
State v. Eki Kondi & Ors No. 2 (2004) N2543
State v. Peter Kaudik [1987] PNGLR

Counsel

Mr. Bray, for the State
Mr. Nasil, for the Accused

DECISION ON SENTENCE

29th July, 2011.

1. KIRRIWOM, J: Peter Freeman Ekalia of Itipu village, Koroba, Southern Highlands Province was found guilty and convicted of four (4) counts of sexual penetration without consent with circumstances of aggravation and one (1) count of abduction. Under the Criminal Code section 350(1) he is liable to a maximum sentence of seven years for abduction and maximum sentences of life for each count of sexual penetration without consent with circumstances of aggravation.
   
2. About 2:30 – 3:00am on 16th May 2009, the victim Agnes William and two relatives were walking home from Kanudi after being dropped off at Kanudi bus stop by a taxi, when they were held up by the prisoner and another person. They were armed with a home-made gun which was held by the prisoner’s accomplice.
   
3. The victim’s relatives managed to escape by jumping into the sea and swam to safety where the alarm was raised. The incident took place almost 100 metres from the sharp corner past the Origin gas Depot towards the direction of Tatana and Baruni. All three were from Tatana.
   
4. The victim was threatened by the gun-man and pushed to the side of the road where her clothes were removed. The prisoner was the first to sexually penetrate her while his accomplice held her down. When asked to suck the prisoner’s penis the victim refused and she was struck on her forehead with the gun-butt. So she sucked the prisoner’s penis. After the prisoner, his accomplice also sexually penetrated the victim and likewise forced her to suck his penis which she did out of fear.
   
5. She was then dragged along the road towards Kanudi still naked, and just before the Origin Gas Depot turn-off, they crossed the road and followed a track that led into the hills. Some 50 metres away from the road, she was again forced to the ground and the prisoner penetrated her for the second time by inserting his penis into her vagina. When he was finished with vaginal penetration, he forced her to suck his penis again for the second time. The prisoner then got dressed and proceeded down towards the main road while his accomplice took his turn.
   
6. A search party organized by the relatives from Tatana village to save or rescue the victim arrived at the scene where the prisoner brought himself to about the same time, some walking and others in vehicles. Amongst the rescue party was Billy Moses, one of the two companions of the victim who escaped into the sea and swam to safety.
   
7. Approaching Kanudi Origin Gas Depot the search party caught the prisoner on the side of the road. They questioned him and he did not respond.
   
8. The victim heard them and called out. The prisoner’s accomplice stood up and ran for his life. Billy Moses and some villagers went up the hill and while others pursued the other man, he helped the victim down to the road.
   
9. The victim identified the prisoner as the person who sexually attacked her and punched him on his face. The relatives responded and belted up the prisoner and took him to Tatana and after dawn they delivered him to Boroko Police Station where he was locked up until this trial.
   
10. In his trial the prisoner raised a defence of alibi which the Court found it to be a false alibi. The prisoner’s explanation for being at the scene where he was picked up and taken to the Police Station did not reconcile with logic and common sense, clearly demonstrated that he made a very bad lie.
    
11. When allocatus was administered the prisoner maintained his innocence but expressed remorse nevertheless when he said that he was sorry for the lady and also for his old father. It is hard to tell whether remorse expressed in such fashion and manner is really a genuine one or a mere mechanical act of expression to say something for the sake of saying something.
    
12. Counsel for the prisoner advanced seventeen (17) points to be convinced as factors to mitigate the gravity of this crime.
    
    1. First offender;
    2. Cooperated with Police;
    3. Remorse and contrition;
    4. Victim was over the age of 16 years and was not an old woman;
    5. No abuse of trust, dependency and authority;
    6. Prisoner was not of same clan as the victim;
    7. Prisoner was not a HIV positive;
    8. Victim did not suffer any serious injuries;
    9. Prisoner caused no further trouble;
    10. Prisoner is a youthful offender;
    11. Lengthy prison sentence will have adverse effects on prisoner;
    12. Prisoner is a person of good character;
    13. He did not try to escape when caught and made it easy for the Police;
    14. Already subjected to vigilante justice in the hands of the family members of the victim;
    15. He did not retaliate at all;
    16. Spent long time in custody from 16th May 2009 to date;
    17. Prisoner’s relatives are willing to pay compensation to the victim and her people; and
        
13. Defence counsel referred me to the State v. Jeffrey Wangi [2006] N3016 and submitted that the Court must look at the starting point of ten (10) years when determining an appropriate sentence. The State submitted that the starting point should be 15 years where rape is committed with circumstances of aggravation as in this case and particularly where the accused pleads not guilty.
    
14. The case of The State v. Jeffery Wangi (supra) was that of sexual penetration of an eight year old girl by a 36 year old man who inserted his penis into her vagina without her consent.
    
15. Because the State did not charge the prisoner of rape with circumstance of aggravation, the Court imposed a near maximum term of 14 years, bearing in mind that rape simplicitor carries a maximum penalty of 15 years.
    
16. The difference between Jeffery Wangi’s case and the case before me is that the prisoner in this case was with an accomplice and both were armed with a gun and not only threatened the victim, they also assaulted her. She was not only raped once but more than once by both men. She was sexually penetrated vaginally and through her mouth. This was a trial whereas Jeffery Wangi pleaded guilty. He cooperated with the Police whereas there is no evidence that the prisoner in this case cooperated with the Police. If he had, there would have been admissions thereby resulting in a plea of guilty. And finally in Jeffery Wangi’s case the prisoner was charged with rape simplicitor whereas in this case the prisoner is charged with rape committed with circumstances of aggravation as well as abduction, another most serious charge.
    
17. Defence counsel was oblivious to the increasing trend in sentencing of offenders in sex crimes accompanied by circumstances of aggravation. Many of those cases are reported and Court has been ably assisted by Counsel for the State in that regard.
    
18. The seriousness with which the Courts view the rising and increasing incidences of brutal sexual violence and attacks on females by male persons can be appreciated from what the Supreme Court expressed in James Mora Meaoa v. The State [1996] PNGLR 280.
    
19. This was a very bad case. The victim, a 13 year old was a passenger with other members of her village in a motorized dinghy that was travelling to Lavare village from Port Moresby when due to bad weather, the dinghy capsized as it approached the mouth of Lakikamu River. The appellant was the operator of the boat. The victim and her fellow villagers who were from an inland village and did not know how to swim were all thrown into the water.
    
20. The appellant assisted the victim to shore but once on shore he took advantage of her vulnerability, forcefully penetrated her vagina with his penis. Two other persons also joined him and raped her as well. The victim suffered severe injuries to her genitalia which subsequently developed infections and she was hospitalized for 10 days. Although the injuries had healed, her long term prognoses from the doctor was that she would face hardships and difficult child birth as a mother when she is married as the result of this criminal act.
    
21. The appellant was sentenced to 14 years. He appealed against both his conviction and severity of sentence. The Supreme Court presided by Kapi, DCJ, Los, J and Doherty, J dismissed the appeal against conviction.
    
22. While addressing his appeal against severity of sentence of 14 years, the Supreme Court said at pp. 283 – 286: -
    

“The appellant also appealed against sentence. He was sentenced to 14 years in hard labour. The learned trial judge referred to the age of the girl which he estimated to be 13 at the date of trial and 12 at the date of attack, he commented that she was small and slightly built and at that she was in vulnerable position after being capsized he noted the force and the bad assault and residual injuries. He referred to her being “subjected to a bestial attack by opportunist survivors of the shipwreck”, and the appellant showed a “careless disregard for the young girl’s welfare. If the expression “take a chance” means to brutally rape any girl who happens by when a man is free to dominate her then these mens’ community needs to look at its values. They do not accord with societies (sic) common values.” With this we agree.

Mr Manek has stressed the fact that this girl and her family were from the mountains and were unable to swim, they were in a vulnerable position as inland people are at sea and the appellant took advantage of that vulnerability. We agree with counsel on this.

The Supreme Court and the National Court in previous cases have spoke of a breach of trust as an aggravating factor in sexual offences. There are classes of fiduciary relationships well recognised in the Court e.g. parent and child, school teacher and pupil, doctor and patient but there are defacto situations which the court can also consider and has considered eg a policeman and his prisoner (Aubuku v The State [1987] PNGLR 267) or situations such as this where a person in control of a vehicle or a boat has duty of care to his passengers which he abuses by taking advantage of their vulnerability to inflict injury and, in the case of a female passenger to rape her. We consider that this breach of a defacto duty towards his passengers is particularly aggravating circumstance in this case before us.

We also agree that the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they on a public road, in the gardens or as here on the coast. We agree that the right of all persons female as well as male not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless of age or background. We restate what was said by Injia J. in State v Penias [1994] PNGLR 48:

“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. Women in towns and 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 tranquillity, 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.”

The National Court in recent years has been calling for severer sentences in rape. For example Sevua J. in State v Waim [1995] PNGLR 187 has suggested that the guidelines in Aubuku should be reviewed. Referring to the decisions in Aubuku v State (supra) and State v Kaudik [1987] PNGLR 201 Sevua J. said:

"that was seven years ago. Rape is still a very prevalent crime in Papua New Guinea. Both prior and subsequent to these two cases Courts have warned over and over that sentences would increase."

We also repeat what was said by the Supreme Court on Aubuku v The State [supra].

"The extra distress that giving evidence can cause to a victim means that a plea of guilty perhaps more so than the other cases, should normally result in some reduction from what would otherwise be the appropriate sentence."

Amet J. (as he then was) said in The State v Kaudik [supra] which we quote and adopt:

"Rape is generally regarded as the most grave of all sexual offences. In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences, the reasons for this are set out as follows:

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation; after the event, quite apart from the woman's continuing insecurity, the fear of venereal disease or pregnancy."

"Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and remarked that it involved an act which we as a society attach considerable value".

We adopt and restate this and note that in the case of Peter Kaudik a case also involving a young female who was a subject of gang rape after abduction. This sentence of 12 years on a plea of guilty was imposed.

We note the particular factors in this case - the position of responsibility the appellant had to the victim, the age and vulnerability of the victim, the severe assault, the residual injuries, this was a trial where she was made to relive the experience.

We also note the high number of rapes in proportion to other crimes committed in Papua New Guinea as shown by the Judges report to the Parliament and consider that this Court must show that such behaviour will not be tolerated. In this circumstances we do not consider that the sentence was excessive and we confirm it."

23. This case is a classical example of all the bad things that this crime of sexual violence is to women of all race, age and creed, particularly as to their inherent dignity as human beings, equal right to live and move freely like men and above all the right to be respected and treated as equal and as fellow human beings.
    
24. The scenario played out in this case almost resembles the facts in The State v. Thomas Waim [1995] PNGLR 187 where the National Court (Sevua, J) sentenced the prisoner to 25 years. On appeal to the Supreme Court on severity of sentence, the Supreme Court described the term imposed as 'quantum leap' and reduced the term to 18 years. The following passage is noted from that judgment in Thomas Waim v. The State [1997] SCRA 519:
    

"We are of the opinion that the learned trial judge was quite proper in considering sentences greater than the 12 years in The State v Kaudik (supra), and, indeed, the 8 years starting point suggested in Aubuku v The State (supra). Those cases werided 10 yea0 years ago, and there has been an escalation in the prevalence and seriousness in the commission of rapes and multiple gang rapes over the period. alarming fact calls for pror proper and adequate reflection in the sentencing decisions of our courts. Thus, 12 years for gang ispe is now, in our respectful opinion, inadequate and inapiate. Some recent dect decisions of the National Court have properly reflected the community's concerns and imposed sentences o 15 and 16 years.

This is a particularly very serious case of rape. But we f the respectful viul view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase itesentencing for particularnces is reasonable and justified, depending on the particulticular circumstances of each case. But aence that constitutestutes e jump or increase from the prevailing practices ought not not be imposed."

25. Thomas Waim'Waim's case was particularly a bad one. The prisoner and his gang abducted the victim by threatening and chasing away her boyfriend at night and all through that night they raped the victim vaginally, orally and anally in several different locations in the city of Lae as they moved from one part of the city to another and in every new location more rapists joined in the frenzy.
    
26. The need for gradual and progressive increase in sentence alluded to in Thomas Waim (supra) was acknowledged by the Supreme Court in Ian Napoleon Setep v. The State [2001] SC 666 (Sawong, Gavara-Nanu & Kandakasi, JJ):
    

It should be undoubtedly clear from all of the above that, abduction and rape in themselves are very serious offences which call for stern sentences. Rape alone carries a penalty of life imprisonment subject to s. 19 of the Code, which allows for the imposition of a lower sentence than the prescribed maximum in appropriate cases. Thus when abduction or other offences gets added to that, it makes the case even more worse as opposed to a case only of rape or abduction standing alone. As noted already, the sentences that have been imposed to date have not served the intended purpose of deterring would be offenders from committing such offences. Instead, the number of this kind of offences is on the increase. It therefore, behoves the Courts to impose sentences higher and above those that have already been imposed to correspond with that increase and correct the apparent failure of the past sentences from deterring would be offenders from offending and make our society save if not nearly as save as possible for our women and girls. However, that has to done progressively, as was made clear by the Thomas Waim case.

27. Ian Napoleon Setep's case was another particularly bad case where the prisoner was an escaped convict who was serving a 30 year sentence for wilful murder. He escaped from custody and while he was at large, he was involved in a pack-rape and abduction case. He and one accomplice were convicted for abduction and rape. Both were sentenced to five years each for abduction and for the rape conviction, he was sentenced to life while his accomplice was sentenced to fifteen years.
    
28. The victim in that case was abducted at gun-point inside a dwelling house when the family was asleep and was beaten unconscious when hit on the head and taken away where she was repeatedly raped at various places throughout the night. She was even introduced as the appellant's second wife to the occupants of a house where she was also raped there as well. A home-made gun and a soft-ball bat were used as weapons. It was a trial and the victim had to relieve the ordeal she suffered at the hands of the appellant.
    
29. On appeal against severity of sentence, while recognizing the gravity of the offence itself and the need for stern deterrent sentence, the Supreme Court however on the ground of disparity of sentence between the appellant and his accomplice on the basis of justifiable grievance, reduced the life term to twenty-five years. The Supreme Court said:
    

"The victim in the present case, according to the medical evidence was sick, anxious and distressed as a result of the crimes perpetrated against her. No doubt, she was greatly traumatised and broken. Her esteem and pride as a young virgin girl was violated and so was her person. The appellant and his accomplices left the victim to bear the consequences of the uncalled for evil perpetrated against her. The onset of that can not easily be described, were left to the victim alone to deal with it. No evidence was presented before the learned trial judge of the kind of services that are available to help the victim to cope with the effects of the offence on her. It is common knowledge however, that such services are non existent in our country. We can imagine the victim's aspirations of having a good marriage and a family was shattered because of the violent and uncalled for invasion of her person. The victim is going to bear these consequences for the rest of her life. Common sense in these circumstances therefore, dictates that, her violators be given sentences that would make them feel the consequences of what they did for the rest of their lives as well subject to any good mitigating factor they may have.

The appellant was previously convicted of another violent offence of wilful murder. He was given a 30 years sentence. He escaped from the time he was serving under that sentence and committed the offence and the various unlawful and unacceptable conducts he was engaged in, in this case. He denied the charges and a trial was successfully mounted against him and was found guilty after that. These factors clearly excluded from any consideration by the learned trail judge the need for his rehabilitation and any inclination for leniency.

In all the circumstances, we agree with the learned trial judge's finding that, this was a "even more serious" case of rape. It thus calls for a severe sentence with a view to sending a message to like minded persons that the commission of such offences in such circumstances will be met with severe sentences. Society does not accept this kind of conduct. Indeed, we note that Parliament in prescribing the maximum penalty of life imprisonment, it intended that such a sentence should be imposed unless the offender was able to show that in the exercise of the Court's discretion under s. 19 of the Code a lesser sentence is appropriate. We consider it is high time now for the Courts to say enough is enough and that such offenders will not be dealt with lightly. Adequate warnings to increase sentences for rape cases have been given (see James Mora Meaoa (supra) case at page 286) and the time has come to impose the severe sentences."

30. The Supreme Court had spoken that sentences for rape or abduction and rape or rape and other unlawful acts must go up, not in leaps and bounds or 'quantum leap' as referred to in Thomas Waim, but in progressive manner
    
31. Consequently over the years the National Court has been imposing stiff penalties where justified by the circumstances as illustrated in State v. Eki Kondi & Ors (No. 2) (2004) N2543 where an armed gang abducted the victim and packed raped her repeatedly and the trial Judge imposed sentences ranging from 25 years, 22years, 20 years and 18 years to all the perpetrators.
    
32. The need to increase sentences and deter would-be criminals from becoming involved in the same violent crimes cannot be made any clearer than what is being stated day after day in Court throughout the country where rapists are getting convicted either by their own pleas of guilty or after trial.
    
33. Against this backdrop of escalating lawlessness in our towns and villages of these sexual predators or sex maniacs I must exercise my sentencing powers in determining the appropriate punishment for this prisoner. They are indeed sexual predators and sex maniacs at 2 – 3 am in the early hours of the morning while all decent law abiding people are fast asleep in bed. Only predators looking for prey lurk around in the darkness of the night at such ungodly hour in places you would not ordinarily expect anyone around at that time and at that place unless he was up to no good. This prisoner was certainly up to no good at Kanudi that night and at that time because he was not a resident of Kanudi, he is an unemployed Koroba man from Southern Highlands who lived in Erima and who made his living by selling buai and smoke at Erima. And one wonders what was he doing at such a time far away from his ordinary place of residence in the city of Port Moresby and armed to the teeth with a gun? Was he hunting for wild animals? There is no hunting ground there.
    
34. The Government should seriously look at repatriating all unemployed people living in settlements like Erima and other places in the city of Port Moresby back to their homes. They are more of nuisance and pests than being of any worth towards urban development. They are national disgrace and embarrassment. Let them roam freely and aimlessly in their own homes and provinces any hour of the night and day as they please, but not do it in towns in cities where working and law abiding citizens live and work.
    
35. I agree with Counsel for State that if there is any mitigating factor in favour of the prisoner, it is his prior good record. This is his first crime and first time in Court. However, this mitigating factor is already far out-weighed by the gravity of this offence that it is almost meaningless.
    
36. The Court does not know how old the prisoner is because he did not know his age. He could be between 30 – 40 years. The victim of his crime was a much elder woman who was once married and had six children. She was 49 years at the time of that pack-rape.
    
37. State submits that the Court must consider these aggravating circumstances:
    
    1. This was a trial and not a guilty plea. The victim was forced to come to Court and relive the horrific details and experience of what she was subjected to by this prisoner and another.
       
    2. No genuine remorse was shown by the Prisoner.
       
    100. A gun was used.
         
    4. Victim was assaulted with gun butt and punched on the face.
       
    5. She was dragged and pulled naked along the road from the scene of first rape to the second rape scene.
       
    6. Prisoner was in the company of another accomplice armed with gun.
       
    7. Victim suffered injuries to her vagina and on the face.
       
    8. Victim was demeaned and degraded when the prisoner pushed his penis inside her mouth and forced her to suck it at gun-point on two occasions.
       
    9. She was repeatedly raped in two different locations in the same isolated area and any false move on her part meant death for her but she played her cards well and she was alive to tell her story to the Court.
       
38. I have considered the submissions from both counsels in particular the address in mitigation of penalty. The prisoner is not a youthful offender. He is a mature young man who claims he does not know his age but I estimate between 30 and 40. He is therefore not entitled to the same consideration as that accorded to youthful offenders.
    
39. There was a gun used in the middle of an unoccupied long stretch of the road between Kanudi and Tatana turn-off when there was no reason for the prisoner to be there with his accomplice except to do evil deed. There was weapon, violence and another accomplice who escaped apprehension to commit this crime.
    
40. The victim was subjected to sexual perversions and indignities that she resisted and was clubbed on the forehead with the butt of the gun. The evidence of the assault on the forehead was a laceration measuring 2cm long and 1 cm deep according to Dr. Kambua's medical report.
    
41. There is no victim impact statement showing any residual collateral damage psychologically but that is not to say that as a woman the victim was not scared in her emotional and personal perception of life generally. Of course the ordeal has changed her entire life and she is and cannot be the same person anymore and she will not enjoy life in the same way as she did before this event. She is now in her early fifties.
    
42. Rape, no matter how and why it is committed, it is a very unpleasant crime against humanity. The Supreme Court had echoed this sentiment repeatedly across the law reports in some of the leading authorities by adopting the report produced by the Law Reform Commission in England and Wales and alluded to by Amet, J in State v. Peter Kaudik [1987] PNGLR.
    
43. This society is being fed to the dogs by men who are so selfish and corrupt and care about no one else except themselves. The act of sex between a man and woman is not an act of torture or evil but an expression of love and affection when a man and woman intimately unite physically in a symbolic manner to express that love and affection for each other. It is a very sacred and blessed act that God gave to mankind when he created man after the Heavens and the Earth.
    
44. When such a blessed act is abused and misused by sick people in the society, it defies logic and human comprehension. People steal when they are in need of things for their survival or to have like everybody else. People kill one another when someone does them wrong or for some other reasons. But when men use their intimate body parts, their sexual organs as weapons of misery to bring evil and life long suffering to women for their selfish lusts and sexual gratification, there is no meaning except revulsion and utter disgust from all decent and peace loving men and women. Such men don't deserve sympathy nor leniency from the Court.
    
45. I sentence the prisoner to twenty-eight years in prison less time spent in custody which is two years, two months and thirteen days. After deducting this period the prisoner is now left with twenty-five years (25), nine (9) months, two (2) weeks and three (3) days to serve.
    

________________________________________________
Public Prosecutor: Lawyers for the State
Nasil Lawyers: Lawyers for the Accused