State v Mesak [2011] PGNC 92; N4349 (21 June 2011)

N4349

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO1032 OF 2005

THE STATE

V

BILLY TURMUR and SOU MESAK

Kokopo: Maliku AJ
2011: 02nd & 03rd, 13th & 21st June

CRIMINAL LAW – Rape committed by more than one person – Victim sustained multiple injuries – brutal sexual assault – Change of Not guilty plea to Guilty plea after trial had commenced - Defendants re arraignment - Enter guilty plea – Matter proceeded as a guilty plea – appropriate sentence considered – 18 years imprisonment in hard labour.

Cases cited:

John Aubuku -v- The State [1987] PNGLR 267
The State - v- Peter Kaudik [1987] PNGLR 201
Gimble-v- State [1988-89] PNGLR 271
Willie Paul Songul (1997) N1757
Thomas Waim -v- The State (1997) SC519.
Public Prosecutor-v- Don Hale (1998) SC564
The State- v- Lavuvat Rereke (2011) N3907

Counsel:

Mr N. Miviri, for the State
Mr M. Efi, for the defendants

21st June, 2011

1. MALIKU, AJ. The defendants (each and severally) were charged with one count of rape upon one "MK" on the 06th of February 2006 at Viviran village, Toma area, East New Britain Province, Papua New Guinea. The offence is alleged to contravene Section 347(1) of Criminal Code (Sexual Offences and Crime against Children) Act. The State also invoked Sections 7 (Principal Offenders) and 8 (Offences committed in prosecution of common purpose) of the Criminal Code Act.
   
2. I will briefly for purpose of records state below how this matter had proceeded before me.
   
3. The defendants briefly appeared before me on the 02nd of June in which Counsel representing the defendants sought leave from the court for an adjournment in order to talk to defendant Sou Mesak about a change of instructions from him. Leave was granted and the matter was adjourned to the 03rd of June. The matter resumed on the 03rd of June, both counsels advised the court that they were ready to proceed.
   

4. Mr Miviri for the State told the court that the indictment against each defendant was presented on the 09th of November 2009 before his honour Lenalia J in which each defendant had entered plea of not guilty, however for purpose of records Mr Miviri invited the court to re arraign each defendant. The defendants were arraigned and entered a plea of not guilty.

5. Mr Miviri then informed the court that the State was ready to call evidence, however prior to the first witness called, the State sought leave to tender a number of documents with consent. The documents were tendered, accepted and marked as follows:
   
   1. Record of interview of defendant Sou Mesak in Pidgin version together with English version – marked Ex "A".
      
   2. Record of interview of defendant Billy Turmur in Pidgin version together with English version- marked "B".
      
   3. Affidavit of Doctor Meli Samson of Vunapope Hospital dated 18th /04/2005- marked Ex "C".
      
   4. Affidavit of Corroborating Officer (Kolish Moab) in English – marked Ex "D"
      
   5. Affidavit of Investigating Officer (Sunema Vue dated 18th /06/2005 – marked Ex "E".
      
6. Mr Miviri advised the court that the State will call three witnesses to give oral evidence. At this juncture the State then called the first witness "M K", the victim of the alleged rape.
   
7. At the end of the witness's oral testimony Mr Efi sought leave from the court for adjournment to talk to his clients. Mr Miviri had no objections to the adjournment. Leave was granted to allow Mr Efi to talk to his clients and matter was stood over to 1.30pm.
   
8. The matter resumed at 1.30pm for Mr Efi to commence his cross examination on the State witness. Mr Efi however, sought leave from the court after he had received instructions from his clients to amend the pleas of not guilty to guilty pleas. Mr Miviri had no objections to the leave sought by defence counsel for the court to amend the pleas.
   
9. Although there was no objection on the leave sought to amend the plea by the defendants, I had to caution myself as well to satisfy myself as to whether that was proper course to take bearing in mind the defendants may later on say they were under duress or being forced to do so, or attributed from misunderstanding of the facts, or for some other reasons. Mr Efi did not assist me much with an authority on this however, my general knowledge of the law, that a person may change his or her plea at any time but before he or she is sentenced with leave from the Court. I granted leave for each defendant to amend his plea from not guilty to guilty.
   
10. Mr Miviri then at this stage correctly invited me to arraign each defendant again. Each defendant was arraigned and pleaded guilty. I entered a provisional plea of guilty for each defendant. Mr Miviri then formally tendered the file to the court which I read. Having read the facts, I then found each defendant guilty of rape and recorded the verdict accordingly. Mr Miviri then tendered the antecedent of each accused, followed by the administration of the allocutus of each accused by the court.
    

SENTENCE

11. The defendant each and severally after seeking leave from the court to amend their pleas have pleaded guilty to a charge of rape, and offence prescribed under s. 347(1) of the Criminal Code Act.

12. The indictment alleges that on the 06th of February 2005 at Viviran village, Toma, East New Britain Province, the defendants in the company of each another did each and severally sexually penetrate one "M K" without her consent.

The facts

13. On the 06th of February 2005, "M K" was walking along a bush track to visit her relatives. Along the way in the bushes she was confronted by defendant Sou Mesak, Billy Turmur and one other.

14. They grabbed hold of "MK", and forced her to remove her top, short and panty and forced her to the ground.

15. The defendant Sou Mesak inserted his penis into "M K's" vagina and had sexual intercourse with her without her consent. She was overcome by force. After that defendant Billy Turmur inserted his penis into "MK's vagina and had sexual intercourse with her without her consent. She was overcome by force.

16. After the defendants had sexually penetrated the victim they left her and ran away. "M K" then wore her clothes and went back to her village, later in the afternoon. She reported the matter to her mother and to the councillor. Police later investigated and arrested the defendants.

17. The maximum penalty for rape prescribed under section 19 of the Criminal Code Act is life imprisonment, however courts have discretion to impose a sentence other than the maximum prescribed penalty.

18. This rape was committed by more than one person. In the cases John Aubuku-v-The State [1987] PNGLR 267 a starting point of 8 years imprisonment was set. However in the case of The State-v- Kaudik [1987] PNGLR 201 a starting point of 12years was recommended.

19. I also read the case of Gimble -v- The State [1988-89] PNGLR 271 where the Supreme Court set sentencing guidelines of a plea of not guilty by young first offenders carrying weapons and threatening violence to be:

(i) Robbery of a house – starting point of seven years;

(ii) Robbery of a bank – starting point at six years;

(iii) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of five years;

(iv) Robbery of a person on the street – starting point of three years.

20. Then in the Supreme Court decision of Thomas Waim -v- The State (1996) SC 519 it was stated the 8 and 12 years imprisonment starting point for gang rape was inadequate and inappropriate having noted some of the National Court decisions at 14, 15, and 16 years of imprisonment which have properly reflected the community's view.

21. The mitigating factors are: the defendants realizing their wrongs amended their not guilty pleas to guilty pleas, no prior convictions, expression of remorse to the court by defendants, to the victim, the parents of the victim, victim's relatives, and the community.

22. The aggravating circumstance or factors: each defendant was in company with one other at the scene of the crime, used force on the victim, sexually penetrated the victim one after the other, the victim received injuries from being sexually penetrated by the defendants. The medical report of the victim by Doctor Mellie Samson tendered with consent during a short trial reveals the injuries on the victim as a result of being sexually penetrated by the defendants. These injuries are:

(i) At the back between her buttocks her laplap was soaked in fresh blood.

(ii) Fresh blood was running down her legs.

(iii) Her pants were soaked in blood.

(iv) Her perineum was covered in blood.

(v) There were bruises on the medial side of her left thighs

(vi) There were bruises around the clitoris and a one centimetre shallow laceration on the left side of the clitoris.

(vii) There were bruises on both labia major and both labia minor.

(viii) The vaginal canal was inflamed.

(ix) A small part of the hymen on the side, freshly torn was present.

(x) The rest of the vaginal hymen was absent.

(xi) The cervix was bruised all over and bleeding from the bruises.

23. In his concluding opinion Doctor Mellie Samson says, the bruises over the genitals and bleeding bruises on the cervix were a result of brutal sexual assault. The present of gram positive cocci, klebsiella infection in the vagina and a much bruised cervix and the absence of the vagina hymen is evidence of vaginal penile penetration.

24. I have read the remarks by Justice Kirriwom in State -v- Willie Paul Songul (1997) N1757 in which his Honour says "They (the defendants) had no reason whatsoever to attack an innocent person on the road minding his own business..." Although his honour's remark was in respect to a robbery charge, the principle I think is relevant and applicable to this case, in that the victim was happily minding her own business and was on her way to visit her relative when confronted by the defendants who then sexually penetrated her without her consent.

25. Rape committed by more than one person or pack rape as it is known in Papua New Guinea is unthinkable, is unbearable and is inhuman to the victim, victim's parents and relatives. The agony undergone by the victim is also unbearable and unforgettable. It is a scar of her life time because it was never consent to by the victim of rape. "MK" is no exception.

26. Everyday rape is committed on innocent women and young girls. "MK" (the victim) was an innocent young virgin girl at 15 years old at the time she was sexually penetrated by the defendants. There shall never be any reasonable explanations by the defendants to the victim of why they had sexually penetrated her without her consent, but they know they had done damage to the victim.

27. Tougher deterrent sentences in the form of custodial sentences should be considered by the courts, even when those involved are juveniles, or those recommended for non custodial sentences by the Community Based Corrections (CBC) as well as Rehabilitation Services.

28. Again in the case I had earlier resorted to, his Honour continued:

"I appreciate the remark made in R-v- Taggart (1923) 17 Cr. App. Rep. 132 cited in this Court and the Supreme Court which says that a Judge or Magistrate who sends a young man to prison for the first time takes on a grave responsibility. Such sentiment is not out of place even today but we must face the reality that most of the violent crimes against persons and property involving use of offensive weapons are orchestrated by juvenile offenders within the age group 13-25 years"

29. I agree that such sentiment is not out of place today but we must face the reality that rape is being committed by young offenders on innocent women and young girls and is on the rise whether with or without offensive weapons used. In many instances victims have been murdered after being raped.

30. In this case despite two Pre Sentence Reports tendered, I consider a custodial sentence is called for. The defendants each and severally are sentenced to 18 years imprisonment with hard labour. I deduct the period that they have been in custody and they are to serve the balance.

__________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused