State v Minja (No.2) [2011] PGNC 70; N4332 (21 June 2011)

N4332

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 900 OF 2008

STATE

V

KENNETH MINJA (No. 2)

Wewak: Ipang AJ
2011: 21 June

CRIMINAL LAW – Criminal Code – s 347(1) & (2) – aggravated rape – abduction, threat with knife, stabbed wound, injury to vagina – victim age 15 years – two (2) incidents of rape – 16 years imprisonment minus pre-trial custody.

Cases Cited

Goli Golu -v- State [1997] PNGLR 653
State -v- Joe Sime CR No: 1078 of 2004
State –v- Douglas Jogioba CR No: 1765 of 2005
State –v-Nautim Mausen (No2) CR No: 596 of 2004
State –v- Alex Matasol CR No: 928 of 1997
State –v- Nick Teptep (2004) N2612
Lawrence Hindemba –v- The state (1998) SC593
State –v- Kenneth Penias [1994] PNGLR 48

Counsel

Mr. F. Popeu, for the State

Mr. J. Kolkia, for the Accused

DECISION ON SENTENCE

21 June, 2011

1. IPANG AJ: The offender pleaded not guilty on one count of rape pursuant to Section 437(1) & (2) of the Criminal Code Act, chapter 262 (as amended) and an alternate count of sexual penetration of a child 'DS' under the age of 16 years pursuant to Section 229 A (1) of the Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002. A trial was conducted. At the conclusion of the trial I convicted him on the charge of rape. He now appears before me for sentencing.
   
2. The facts as I found are as follows. On the 11th November, 2007 the offender was at Sotmeri Village. On that day and around 8:00pm the victim 'D S' was at her sister's housing eating sago and fish. She was sitting on the step of the house. The offender approached the victim from her back, grabbed her covered her mouth with his hands and pulled her away from the house.
   
3. Inside the bushes, the offender threatened the victim with a small bayonet knife, forced her on the ground and forcefully removed her clothes. The offender also removed his own clothes. The offender then sexually penetrated the victim's vagina, with his penis. After releasing his sperm into the victim's vagina, the offender forced the victim to wear her clothes. The accused then forced her to walk to the side of the river and forced her onto a canoe. He then paddled the canoe to an island, where the accused has his house there.
   
4. On the island, the offender took the victim to his house and again had sexuall intercourse with her without her consent. At all material time, the offender had a knife in his possession and had used the knife to threaten the victim.
   
5. The victim's father after realizing that her daughter was not in the house went out searching for her. He called out for her but there was no response. He asked relatives but still could not locate the victim. He checked the canoes but all the canoes were there. The next morning which was on the 12 November 2007, the victim's father heard that his daughter was on the island so he paddled across the river to the island and asked her daughter to return.
   
6. After the victim had returned and after been told of what happened to her, the victim was taken to the Gawi Health Centre for medical examination and treatment and later the matter was reported to the police. The medical report revealed no spermatozoa but moderate pus cells and the presence of few epithelial cells. Presence of pus cells are due to inflammation on the vagina which means forced breathness and soreness.
   
7. In his statement on the allocutus, the offender apologized and said he thought the victim was his girlfriend so he did that. He asked if he could pay compensation to the victim.
   

Submission by Defence Counsel

8. The Defence Counsel submitted the following mitigating factors in favor of the offender and these are:
   

1. He is a first time offender

2. There is no existing relationship of trust, dependency or authority.

3. Isolated incident and not a persistent sexual abuse.

4. Co-operated well with the police.

5. Victim did not fall pregnant.

6. Offender did not pass on any STD.

7. Offender has shown remorse and under took to pay compensation.

Defence Counsel submitted that these mitigating factors can be measured against the following aggravating factors:

1. Offender was found guilty after the trial

2. The age difference; and

3. The victim did not consent.

9. Counsel referred the court to the case of Goli Golu –v- State [1997] PNGLR 653 and reminded the court that the maximum prescribed penalty should only be imposed on the worst type of case depending on the circumstances of the particular case. In State –v- Joe Sime CR. No. 1078 of 2004 Cannings J sentenced a prisoner to 10 years after trial where the prisoner, raped his niece, aged 16 years after threatening her with an axe.

10. In State –v- Alex Matasol CR .No. 928 of 1997 the court found the prisoner guilty after trial and imposed a term of 6 years, where the victim was threatened by the prisoner with a bush knife but there was no aggravated physical violence.Defence Counsel submitted that in the present case the mitigating factors outweighed the aggravating factors and suggested 13 years as head sentence.

11. Distinction can be drawn from the present case to those cases referred to the Court by the defense counsel. In Joe Sime's case though a sentence of 10 years after trial was imposed, the case involved use of threat with an axe and involved no element of aggravated physical violence. There also exist a relationship of trust and dependency as victim is the offender's niece.

12. In Douglas Jogioba's case though it was a sentenced of 10 years after trial was imposed, there existed a relationship between the prisoner and the victim to that of a teacher to student. In Alex Matasol's case involved only threat with use of bush knife.

13. All these cases, Douglas Jogioba, Nautim Mausen and Alex Matasol involved elements of threat with use of offensive weapons unlike the present case where it involved offender been drunk with use of threat followed by threat which materialized into a stabbed wound and use of aggravated physical violence i.e. covered the victims mouth with both hands, dragged her into the nearby bushes more like abducting her and it involved two (2) incidents of rape and sexual penetration.

Submission by State Prosecutors

14. State Prosecutor submitted that the Court should take into account the views of the community and reaction from the courts to the offence to assist this Court arrive at an appropriate sentence. In State –v- Nick Teptep (2004) N2612 Sevua, J expressed the following views.

Rape has become a prevalent violent crime. Respect for the dignity of our women folk has diminished because of people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the court must reflect some of these values, but more so, the society utter revulsion of this kind of violation and degradation of women. I know that the courts in recent times have been increasing sentences for rape and pack rape and this in my view reflect the attitude that enough is enough and that women folks look to the courts for protection.

15. In Lawrence Hindemba -v- State (1998) SC 593, the Supreme Court said;

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of society have been repeatedly re – iterated in many cases by this court and the National Court including the much celebrated case of John Aubuku –v- The State 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 societies demands for tougher sentences: See James Meaoa -v- The State SC 504 (1996),Thomas Waim -v- The State SC 519 (1997), and Sinclair Matagal -v- The State Unreported Judgments in SCRA No 95 of 1996 (4 June 1998) These and many other cases show that sentences for plea to rape with aggravating features such as young age of victims, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14 – 18 years.

16. In the case of State -v- Kenneth Penias (1994) PNGCR 48 at p.51, Injia AJ (as he then was) stated;

'Rape constitutes an invasion of privacy of the most intimate parts of a women's body. Women become objects of sex and sex along 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 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. Unfortunately has become a prevalent offence in this country. 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 centers, who once enjoyed freedom and tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuka's case said that people who commit rape must be punished with strong punitive sentence'.

17. After the case of John Aubuku -v- The State (1987) PNGLR 26, in which sentencing guidelines for rape cases were set, courts in the recent times have emphasized the need for increased sentencing tariffs for rape cases. See Lawrence Hidemba –v- The State (Supra) and State –v- Nick Teptep (supre) and The State –v- Tomitom (2008) N3301.

Considerations on Sentence

18. There is almost nothing infavour of the offender except perhaps he had not sexually transmitted any diseases to the victim and he is a first time offender. This is when I balanced out the mitigating factors against the aggravating factors.

19. The prisoner under influence of alcohol, armed with a small bayonet knife, threatened and dragged the victim into the nearby bushes; the prisoner covered the victims' mouth with his hands. Inside the bushes, he forced victim to remove her clothes and sexually penetrated her. She felt pain in her vagina. After ejaculating his sperm into the victims' vagina, the prisoner threatened and forced the victim to walk to his canoe and he paddled to the island.

20. On the island, the prisoner threatened and forced the victim and sexually penetrated the victim. During the second incident, the prisoner stabbed the victim with a knife at her back. The next morning after searching for his daughter everywhere, the victim's father went to the island and got his daughter. The medical report is consistent with the allegation of rape which I have convicted the prisoner already.

21. This is a case where I have noted that the victim had suffered a great deal at the hands of the prisoner on the 11th November 2007. The victim was of a young age under 16 years, was the subject of abduction, threatened with force, suffered injury – knife wound and injury to her vagina as per medical report.

22. I take into account the ordeal the victim has gone through to come to court and tell the court the horrific experiences she had gone through. The sentence therefore has to be greater to reflect the public interest in preventing and discouraging rape with aggravating circumstances.

Sentence

23. In all the circumstances, I consider the appropriate sentence to be 16 years imprisonment minus pre-trial period in custody which is 3 years 2 months. Prisoner is now ordered to serve the balance of 12 years 10 months imprisonment.

____________________________________
Public Solicitor: Lawyer for the State

Paul Paraka Lawyers: Lawyer for the Prisoner