State v KT (No.2) [2012] PGNC 154; N4831 (12 October 2012)

N4831

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 13 OF 2012

THE STATE

-V-

"K T"
(NO. 2)

Wabag: Gauli AJ.
2012: 10 & 12 October

CRIMINAL LAW – Sentence – Rape – Criminal Code, section 347 – One on one rape – Guilty on trial – Victim under 13 years of age – Tied mouth and hands – Sexually penetrated her in a village house – Both close relatives as first cousins – Placed some trust – First time offender – Juvenile – Use of violence – Sentenced to 5 years – Sentence partly suspended – Time in custody deducted – Sentence be served in Boys Town.

Cases Cited:

Maima v. Sma [1972] PNGLR 267.
The State v. Taulaola Pakai (2010) N4125.
Paulus Mandasitip & Or v. The State [1978] PNGLR 128
John Aubuku v. The State [1987] PNGLR 267
Kuri Willie v. The State [1987] PNGLR 298
The State v. James Yali [2006] PGNC 26; N2989 (19 January 2006).
The State v. Herami Yakani & Ors (Unreported) CR. 337 of 2011; (30 March 2012)
The State v. Penias [1994] PNGLR 48
The State v. Apa Kuman [2000] PNGLR 313
The State v. "JT" (Unreported) CR. 1132 of 2011; (22 June 2012)

Counsel

Mr. M. Ruari, for the State
Mr. M. Mwawesi, for the Prisoner

SENTENCE

12 October, 2012

1. GAULI AJ: This is the decision on sentence on a rape charge. The prisoner "KT", a juvenile aged 16 years, was convicted on one count of rape charged under section 347 (1) of the Criminal Code after running a trial. The prisoner and the victim "DS", a girl aged 13 years, are first cousins and they both come from Teremanda village, Wabag in Enga Province. In the year 2011 when this incident happened, they were both the students enrolled at Yei Primary School and were both in Grade 5B class.
   
2. The brief facts are that on the 21st of September 2011 during a school holiday at Teremanda village, about12.00 midday, the accused lured the victim to a house where he was residing by taking the victims' wool cap after he removed it from her. The victim followed him to the house. When the victim went in to pick up her wool cap, the accused closed the door, he tied her mouth and hands with a piece of clothe while in a room and he sexually penetrated her.
   

THE LAW

3. The Criminal Code as amended by the Parliament provides the penalty for the offence of rape as follows:
   

347 Definition of rape.

(1) A person who sexually penetrate a person is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where the offender under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

ANTICEDENT REPORT

4. The accused has no prior criminal records.
   

PRE SENTENCE REPORT (PSR)

5. Defence counsel provided a PSR, marked Exhibit "E". The prisoner is now 16 years old. He comes from a family of 3 boys and 3 girls. He is the 6th born in the family. At the time of the offence the prisoner was 15 years old and he was a grade 5 student at Yai Primary School. He was suspended from school following the commission of this offence. He is physically in good health. He has no prior criminal records. The victim's parents want the prisoner to serve part custodial sentence and to pay compensation. Both the victim and the prisoner are close to each other that non-custodial sentence would not be appropriate. The prisoner's parents are willing to pay compensation of K3,000.00 cash plus 4 large pigs to reconcile with the victim and her parents and relatives.
   
6. The Juvenile Court Officer, Mr. Andrew Rai, recommended in the PSR that the prisoner is a suitable candidate for probation supervision. And that two (2) years custodial sentence be served at Erap Boys Town in Morobe Province where he can do his Grades 5 & 6 education and the balance be suspended on condition to pay compensation within 6 months from the date of the order.
   

ALLOCUTUS

7. Before sentencing, the prisoner said that he has never being to court before including the Village Court until this incident. Now that he is found guilty and convicted, he said sorry to his own parents and to the victim and her parents for what he did. He asked the court for mercy and he wants to be released on probation.
   

MITIGATING FACTORS

8. The prisoner is a first time young offender.
   

AGGRAVATING FACTORS

9. The prisoner used his physical strength and overcome a 12 year old female child. He tied her mouth and hands before sexually penetrating her. He used violence. The victim is closely related to the prisoner as first cousins therefore there was some trust placed in the prisoner.
   

DEFENCE SUBMISSION

10. Mr. Mwawesi submitted that rape is a crime of violence that carry a maximum penalty of life year imprisonment therefore the courts are inclined to impose custodial sentence. He submitted the court to exercise its vested powers given under section 19 (1) of the Criminal Code to impose a fixed term of years and to have the sentence be suspended with conditions as recommended in the PSR.
    

STATE'S SUBMISSION

11. Mr. Ruari submitted that the prisoner is found guilty after trial for the charge of rape under section 347 (1) of the Criminal Code, the maximum penalty being 15 years but subject to Subsection (2). And he sighted three aggravating factors: – (1) use of violence, by luring the victim to a house and tied her up before he sexually penetrated her; (2) the victim has suffered physical injury to her private part; and (3) the prisoner was related to the victim as first cousin and there would be some trust placed on him. But there is only one mitigating factor and that is – the prisoner is very young offender.
    
12. Mr. Ruari referred the court to the case of The State v. James Yali [2006] PGNC 26; N2989 (19 January 2006), where His Honour Cannings J, provided the principles on sentencing on rape. In that case the prisoner, a Member of the Parliament, was sentenced to 12 years imprisonment for raping his wife's sister who was 17 years old. His Honor suggested the starting point to be 10 years and the sentence may either go upward or downward depending on the circumstance of the case.
    
13. The prosecutor also referred to one of the cases I dealt with namely the case of The State v. Herami Yakani & Ors (Unreported) CR. 337 of 2011; (30th March 2012), by Gauli AJ. This was a gang rape on the under aged girl by four armed men at night in her house with violence. I sentenced the prisoners to 20 years imprisonment with 8 years suspended. The prosecutor left the court to exercise its discretion to impose appropriate sentence in the present case.
    

DECISION OF THE COURT

14. Rape is a very serious offence that has a maximum penalty of 15 years. It is a crime of violation on a female person's body. The females being physically weak in body are most unlikely to resist or overcome the strength of a male person involving violent crimes such as rape. I would only reinforce the words of His Honour Injia J (as he then was), in The State v. Penias [1994] PNGLR 48:
    

"Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women became subjects of sex, and sex alone, to men like the offender, who prey upon them and rape them. But women, after all, are human beings just like men. They have the rights and opportunities equal to men, as guaranteed to them under the Constitution. They are entitled to be respected and fairly treated. ..."

15. In sentencing in rape or sexual penetratation cases, it is trite law that maximum penalty is reserved only to the worst category of cases, as per the case in Maima v. Sma [1972] PNGLR 267 and The State v. Taulaola Pakai (2010) N4125. It is also a well established law that youthfulness is a mitigating factor, as per the Supreme Court decision in Paulus Mandasitip v. The State [1978] PNGLR 128. When dealing with youthful first offenders, the court need to consider alternative forms of sentences such as imposing good behaviour bonds or probation and that imprisonment should be the last resort, as per the Supreme Court decision in Kuri Willie v. The State [1987] PNGLR 298.
    
16. The Supreme Court in John Aubuku v. The State [1987] PNGLR 267, set out the guidelines to be taken in appropriate cases in sentencing on rape. It held that rape is a serious crime to be punished by immediate custodial sentence with a starting point at five years but the sentence should be higher if one or more of the following aggravating features are present:
    
    1. violence over and above the force necessary to rape;
    2. use of weapon to frighten or wound the victim;
    100. the rape is repeated;
    4. the rape has been carefully planned;
    5. the accused has previous conviction of rape or other serious offences of sexual violence;
    6. the victim is either very old or very young;
    7. the effect upon the victim whether physical or mental.
       
17. I have considered the sentences imposed in the two cases referred to by Mr. Ruari, namely The State v. James Yali and The State v. Herami Yakani & Ors (above). In both cases the prisoners were adults. In James Yali case the victim was 17 years old, who was the accused's sister in-law. There was trust involved. While in the second mention case the victim was below the age of 16 years. I consider that these two cases are not relevant to the present case in terms of the age difference of the prisoner and the victim and the circumstance in which the offences were committed. Each case must be treated on its own merits and circumstances when considering sentence.
    
18. In the present case, both the victim and the prisoner were below the age of 16 years at the time of the offence. Their age difference is about 2 - 3 years. It is a one on one rape incident and it appears to be one of an opportunity rather than any deliberate planning involved. That opportunity arose when the prisoner saw the victim with her two very young sisters, one being a 11 months old baby. He took advantage of the situation and he did what he did. I also take into account of the prisoner's mitigating and aggravating factors. His mitigating factors are that he has no prior conviction and that he is a very young or youthful offender. While his aggravating factors are:
    
    • (a) The use of violence. He lured the victim to a house. The prisoner been two years older than the victim, he used his physical strength to tie up the victim and sexually penetrated her.
      
    • (b) The victim suffered physical injury to her private part. She was only 12 years old and it was a very painful experience for her.
      
    • (c) The prisoner and the victim are close relatives as first cousins. There would be some trust placed on the prisoner.
      
19. There can be no doubt that the aggravating factors outweigh the mitigating factors. The prisoner and the victim are close relatives and they reside close to each other at the same village. The prisoner or his parents made no attempts to reconcile with the victim and her parents since the commission of the crime on 21st September 2011, though they live in the same community. They now indicated to pay compensation after the prisoner is found guilty.
    
20. I am mindful that sending young offenders to prison are likely to be incarcerated with bad influences by the hardcore criminals to become even worse than when they first go in to prison. The court has the duty to protect young offenders from being imprisoned to avoid bad influences from those hardcore criminals in the prison. The court has vested powers of sentencing options under section 19 (1) of the Criminal Code. They include placing the young offenders on good behaviour or probation in appropriate cases. In the circumstances where the victim and the prisoner are close relatives who reside in the same village, I do not consider placing the prisoner on good behaviour as appropriate. There must be some separation of the prisoner from the victim with partly suspended sentence for probation would be appropriate.
    
21. In a number of decided cases, the sentence range in rape cases has being between 5 years to life imprisonment particularly on the adult offenders. Rape is a prevalent offence therefore the sentence ought to have a deterrent purpose. Just as the court has the duty to protect the young offenders from being imprisoned, the court also has the equal duty to protect young children who might fall victims of rape in future. In The State v. Apa Kuman [2000] PNGLR 313, His Honour Kirriwom J, sentenced a 16 year old youth to 4 years with partly suspended sentence on plea of guilty for raping a 7 year old female child. The victim was alone in the garden collecting firewood when the accused saw her. He took her to a coffee garden and sexually penetrated her. He then told her to lick his erected penis and when she refused, he placed the bush knife on her throat. And when she shouted the accused cut her on her stomach causing injuries. He was under the influence of drugs. That case appears to be more serious than the present case. However the injuries were inflicted on the victim after she was sexually penetrated. In the present case the prisoner issued threats to the victim after she was sexually penetrated that he will chop her neck off if she revealed the incident to anyone. Both cases are distinct in nature in that there was force applied, though not life threatening, before the sexual penetration took place. In the present case, the only difference is that the prisoner has forced the matter to trial thereby the victim had to be called to testify in court.
    
22. In The State v. "JT" (Unreported) CR. 1132 of 2011; (22 June 2012), I sentenced the juvenile offender on plea of guilty to 4 years which was wholly suspended, for sexually penetrating his girlfriend while they were both under the influence of alcohol. He was charged under section 229A of the Criminal Code. The victim and the prisoner were both 15 years old at the time of the offence. The offender is currently a student at Wabag Secondary School and he had plans to marry the victim after he completes his education. The circumstances of the case in "JT" (above), differs in some extent to the present case. It would not be appropriate to suspend the sentence wholly in the present case for the reasons that the prisoner is no longer a student in any of the schools around Wabag District and he raped his close relative who lives close to him. In my view a partly suspended sentence would be more appropriate.
    
23. For reasons I have alluded to above, I consider that the appropriate sentence to be imposed in the present case is 5 years imprisonment to a first time young offender convicted on trial for rape where force is applied with time in custody deducted and part of the sentence suspended.
    

SENTENCE:

24. You "K.T" are convicted and sentenced to five (5) years imprisonment. A period of 8 months 2 weeks is deducted for time in custody. You will serve the term of two (2) years 3 months and 2 weeks at Erap Boys Town in Lae. The remaining term of two (2) years will be suspended for probation supervision on CONDITIONS that you are:
    
    1. To pay compensation of K3,000.00 cash plus 4 large pigs to the victim and her parents within six months of the date of this order.
    2. Not to re-offend during the period of your probation.
    3. To remain at your Teremanda village during the period of probation.
    4. You are to report to the Juvenile Court Officer Mr. Andrew Rai in Wabag seven (7) days after your release from the Erap Boys Town for probation supervision and thereafter as and when the JCO requires you.
    5. Should you breach any of the above conditions, you will be arrested and returned to serve your suspended sentence of two years in full.
       

25. Your bail will be refunded. The guarantors sureties be refunded if paid.

Sentenced accordingly

_______________________________________

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