State v Frank (No.2) [2012] PGNC 88; N4700 (13 June 2012)

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CRIMINAL LAW – Sentence – from 'relationship rape' or 'acquaintance rape' to ' stranger rape' – gang rape or pack rape – prisoner in the pretext of assisting the victim walking her home – midway through a dark corner – closed her mouth, dragged her to the mountain slope with his three (3) accomplices, threatened her, stabbed her with a knife, undressed her and pack raped her – during the course of raping her – pushed a sharp object through her anus and pulled it out again – victim's intestine was pulled out – victim was unconscious – left alone at the place of rape till discovered the next morning.

CRIMINAL LAW – Sentence – serious aggravating factors - victim sustained a life threatening injury – causing permanent disability – through the pack rape or gang rape-medical by- pass at victim's lower abdomen made possible for victim to pass waste.

CRIMINAL LAW & PRACTICE – Sentence for gang rape or pack rape with serious aggravating factors – prevalence of the offence – not guilty plea – conviction after trial – principle of 'no quantum leap' taken into consideration –see Thomas Waim v The State (1997) SC 519 and also in State v Ian Napolean Setep (2001) SC 671 - prisoner's background taken into account, Pre-Sentence Report considered – prisoner expressed no remorse – sentencing guidelines in John Aubuku v The State [1987] PNGLR 267 addressed – need for more appropriate sentencing guidelines to be developed like in Manu Kovi –v- The State (2005) SC 789 for manslaughter, murder and wilful murder cases-See Table C for devised 5 Rape Bands.

John Aubuku v State [1987] PNGLR 267
State v Ian Napoleon Setep (2001) SC666
Rudy Yekat v The State (2000) SC665
Lawrence Hindemba v The State (1998) SC593
James Meaoa v The State (1996) SC504
Thomas Waim v The State (1997) SC519
Sinclair Matagal v The State SCRA No. 95 of 1996
State v Nick Teptep (2004) N2612
State v Kenneth Penias [1994] PNGLR 48
State v James Yali (2006) N2989
State v Donald Angavia, Paulus Moi & Clement Samoka (No. 2) (2004) N2590
Manu Kovi v The State (2005) SC789
State v Eki Kondi & 4 Others (No. 2) (2004) N2543
State v Garry Sasoropa & 2 others (No. 2) (2004) N2569
State v Ezra Hiviki (No.2) (2004) N2548
State v Flotyme Sina (No.2) (2004) N2566
State v Donald Poni (2004) N2663
State v Pais Steven Sow (2004) N2588
State Joe Kanau Tomitomi (2008) N3301
State v Alphonse Apou Dioro (2003) N2431
State v Kunija Osake (2003) N2380
State v Peter Huli Hahe Haite (2003) N2383
State v Dibol Petrus Kopal (2004) N2778
State v Philip Kila CR. No. 722 of 2006 (2009)
State v Douglas Joyioba (2007) N4085
State v James Urig CR. No. 375 of 2009 (2010)
State v Sou Mesak & 2 Ors (2009) N3907
State v Henry Umue CR. No. 454 of 2008 (21.10.09)
State v Jeffery Wangi (2006) N3016
State v Joe Sime CR. No. 1078 of 2004 (2006)
State v George Tomeme CR. No. 920 of 2002 (2007)
State v Philip Nangoe CR. No. 392 of 2006 (2007)
State v Thomas Waim [1995] PNGLR 187
State v Thomas Madi (2004) N2625
State v Lawrie Patrick [1995] PNGLR 195
State v Steven Tari Nangimon Garasai (2010) N4155
State v Komai Balal (No.2) (2005) N2822
State v Kenneth Minja (No.2) (2011) N4332
State v Baimon Johnny (2008) N3861
State v Rueben Irowen (2002) N2239
State v Henry Idab (2001) N2127
State v Inapero Susure (1997) N1880
State v Apa Kuman (2000) N2047
State v Vincent Naiwo (2004) N2710
State v Jafisa Winga (2005 N2952

1. IPANG AJ: The prisoner was found guilty on the 27th of March, 2012 on eight (8) counts of sexual penetration pursuant to s.347 (1) & (2) and one (1) count of Grevious Bodily harm pursuant to s.319 of the Criminal Code Act respectively. This court also found that the prisoner was the principal offender pursuant to s.7 of the Criminal Code Act. After finding the prisoner guilty, this court issued the order for the Pre Sentence Report and Means Assessment Report to be done. I also gave the following directions that the Pre Sentence Report and Means Assessment Report to be filed on the 13th of April, 2012 and submissions on sentence by both counsels to be filed on the 17th of April, 2012. These directions have been complied with. On the 30th of April, 2012 I heard the submissions on sentence from the parties and this is my decision on the prisoner's sentence.

2. The relevant facts for the purpose of sentencing in this case as I found are these; Between the hours of 12 midnight on the 31st December, 2009 and 1.00am on the 1st of January, 2010, the victim which will be referred to in this judgment as EE was in company of other ladies who went to the dance place at Komiufa Village. At the dance place, a fight broke out so the dance was stopped. The victim and other ladies decided to go home, when the prisoner offered to assist the victim and walk her home. So, the other ladies walked in front while the prisoner and the victim EE walked 5 to 6 metres behind them.

3. After walking some distance, and towards Bamboo trees where it was dark, the prisoner grabbed EE by her neck, closed her mouth and dragged her away from the road, down the mountain slope where there was a Kaukau garden. Three other boys who were accomplices to the prisoner assisted him. They stripped EE naked and had sexual intercourse with her by vaginal penetration and anal penetration against her will. The prisoner and his three accomplices then inserted an object in to the victim's anus. As the object was pulled out, EE's intestines was also pulled out of her stomach through her anus. She was unconscious and left in the garden till her relatives found her the next morning. As the result of the assault on her, she sustained vaginal, anal and other bodily injuries.

4. The s.347 (1) & (2) of the Criminal Code Act provides for the following penalty;

5. The prisoner was also found guilty on one count of causing grevious bodily harm. Section 319 of the Criminal Code Act reads;

"A person who unlawfully does grevious bodily harm to another person is guilty of a crime.

6. These provisions provided the maximum penalties available that the court considering the particular circumstances of each case can impose, whether it be the maximum penalty or below the maximum penalty. This raises the issue in this case as to what would be the appropriate head sentence?

7. Referring back to the relevant facts of this case, it was revealed that the prisoner had consumed alcoholic drinks known as 'live lave' and assisted the victim to walk her home. On the way at home near the bamboo trees, where it was dark, he grabbed the victim by her neck, closed her mouth and dragged her away from the road down the mountain slope to the Kaukau garden. Three of his accomplices assisted him. They stripped her naked and had sexual penetration with her by vaginal and anal penetration against her will. They then inserted an object in to her anus and pulled it out gain. When this was done, her intestine also came out. These circumstances render this case as aggravated pack or gang rape.

8. The s. 349A interpretation gives description of what situations might amount to circumstances of aggravation. For the purpose of discussion, I consider appropriate to re-state s. 349A. This provision reads:

For the purpose of this Division, circumstances of aggravation include, but not limited to, circumstances where-

9. The victim was raped by the prisoner and three others therefore it was not a single rape case but a gang or pack rape. The prisoner is very well known to the victim as her brother in-law so the rape is classified as a relationship rape' or 'acquaintance rape'. The prisoner's three (3) accomplices don't know the victim and likewise the victim does not know them, so the rape can be classified as 'stranger rape'. It can be seen further that this was not a normal gang or pack rape case but coupled with multiple aggravating factors such as abduction, threats, use of offensive weapons and infliction of permanent bodily injuries. The Medical Report dated 25th February, 2010 reported that the victim was semi conscious, instable vital signs, in hyovolaemic haemorrhagic state class II and hypothermic. Vagina-perineal lacerations and was bleeding heavily. Anus/Rectum-rectal prolapsed, bleeding, penetrated rectal injury. Abdomen-generalized abdominal tenderness.

10. Both counsels have submitted number of decided cases. It is appropriate that I will restate all these cases and other cases dealing with rape and observe the sentencing ranges imposed on these cases. This will be focused only on cases dealing with rape cases with serious aggravating factors. Number of these cases are extracted from State –v- James Yali (2005) N2989

DETAILS
No	Case	Coram	Aggravating	Mitigating	Sentence
1	State –v- Luke Sitban (No.2) (2004) N2566	Kandakasi, J	10 year old Conviction after trial No remorse No Custody Compensation	No prior conviction No physical injuries	17 years
2	State –v- Henry Nandiro (No. 2) N2668 (2004)	Kandakasi, J	Armed gang rape of 14 year old Conviction after trial Physical injuries to victim	No prior conviction	20 years
3	State v Eki Kondi & 4 Ors (No.2) N2543 (2004)	Kandakasi J	Gang abduction Rape in broad day light Offenders armed with bush knives Threat of violence to third parties Conviction after trial		18 -25 years depending on degree of participation
4	State v Donald Angavia & 2 Ors (No.2) (2004) N2590	Kandakasi J	Gang rape Breached of trust by boyfriend Convection after trial	First young offenders	17 years
5	State v Garry Sasoropa & 2 Ors (No.2) (2004) N2569	Kandakasi J	Gang rape of girlfriend & relative Repeated acts of rape Conviction after trial		22-25 years depending on prior conviction
6	State v Ezra Hiviki (No.2) (2004) N2569	Kandakasi J	Rape of 10 year old girl by matured relative Convection after trial Vaginal injuries requiring medical repair	Guilty plea First young offender Expressed remorse	13 years
7	State v Flotyme Sina (No.2) (2004) N2541	Kandakasi, J	Conviction after trial of a rape of a married women	No prior convictions No physical injuries Customary compensation paid	17 years
8	State v Luke Sitban (No.2) (2004) N2566	Kandakasi, J	Rape of 10 year old girl Conviction after trial No customary compensation paid No remorse	No prior conviction no physical injuries	17 years
9	State v Henry Nandio (No.2) (2004) N2668	Kandakasi, J	Armed gang rape of 14 year old girl Conviction after trial Physical injuries to the victim	No prior convictions	20 years
10	State v Donald Poni (2004) N2663	Kandakasi, J	Gang abduction & rape Use of weapon Offence committed in the middle of night Conviction after trial No remorse		19 years
11	State v Pais Steven Sew (2004) N2588	Kandakasi, J	Conviction after trial Rape of a married women in the presence of small children Breached of defect trust Offender known to the victim	Guilty plea First time offender	15 years
12	State v Joe Kanau Tomitom (2008) N3301	Kandakasi, J	Breach of trust	Guilty plea No weapons used First time offender No injuries sustained	15 years
13	State v Baimon Johnny (2008) N3861	Kandakasi, J	Pack or gang rape Use and treat of force Premature termination of pregnancy	Guilty plea First time offender Exspress remorse Co-operate with authorities	15 years
14	State v Alphonse Apou Dioro (2003) N2431	Davani, J	15 year girl victim Gang rape over seven (7) hours use of bush knives & other weapons	Pleaded guilty No prior conviction	16 years
15	State v Kunija Osake (2003) Nx2380	Jalina, J	Victim 11 years old girl Breach of trust	Guilty plea	18 years
16	State v Peter Huli Hahe Haite (2003) N2383	Jalina, J	Rape of 11 year old girl Prior conviction for rape offences	Guilty plea	20 years
17	State v Dibol Petrus Kopal (2004) N2778	Lay, J	Rape in course of robbery Use of weapons Conviction after trial		14 years
18	State v Kenneth Minja (No. 2) (2011) N4332	Ipang AJ	Victim was abducted & held captive Threats used Offensive weapon a knife was used Victim was stabbed Victim suffered injuries to her vagina Prisoner under influence of alcohol Greater age difference Prisoner released his sperm in to victim's vagina Rape on 2 occasions & 2 different locations	First time offender	16 years
19	State v Philip Kila CR. No. 722 of 2006 (2009)	Cannings, J	Conviction after trial Police officer aped victim in the house of police duties Treats of violence		17 years
20	State v Douglas Jogioba (2007 ) N4085	Cannings, J	Conviction after trial School teacher raped 16 year old student 2 counts one of digital penetration & one of penile penetration		10 years
21	State v James Urig CR. No. 375 of 2009 (2010)	Cannings, J	Guilty plea Offender & 2 others dragged 23 year old victim away from her sister and raped her Pack rape		16 years
22	State v Soii Mesak & 2 Ors (2009) N3907	Lenalia, J	Pack rape Victim held captive for 5 hours Conviction after trial	First time offenders No injuries No weapons used	18 years
23	State v Henry Umue CR. No. 454 of 2008 (21.10.09)	Lenalia, J	Guilty on raping his 2 nieces		25 years
24	State v James Yali 92006) N2989	Cannings, J	Conviction after trial		12 years
25	State v Jeffery Wangi (2006) N3016	Cannings, J	Victim is 8 years old	No circumstance of aggravation	14 years
26	State v Joe Sime CR. No. 1078 of 2004 (2006)	Cannings, J	Threats with use of small axe	Guilty plea Genuine remorse	10 years
27	State v George Tomeme CR. No. 920 of 2002 (2007)	Cannings, J	Conviction after trial Victim raped by six other man Offender led victim away under pretext of saving her, raped her himself		12 years
28	State v Philip Nangoe CR No. 392 of 2006 (2007)	Cannings, J	Conviction after trial Young mentally retarded women raped near the road		15 years
29	State v Thomas Waim C [1995] PNGLR 187	Sevua,J	Packed or gang raped by 30 males Offender raped victim four (4) times Force & threats used Physically assaulted	Young first time offender Pleaded guilty No permanent or serious bodily injuries	25 years (on appeal, the Supreme Court in Thomas Waim v State (20.05.97) SC519 reduced to 25 years to 18 years
30	State v Nick Teptep (2004) N2612	Sevua,J	Pacsked or gang rape No remorse	Guilty plea	14 years
31	State v Thomas Madi (2004) N2625	Sevua,J			12 years
32	State v Lawrie Patrick [1995] PNGLR 195	Sevua,J	Pack or gang raped Prisoner was intoxicated		12 years
33	State v Steven Tari Nangimon Garasai CR. No. 1022 of 2006 (2010) N4155		Multiple counts over period of time (4 counts of rape ) Conviction after trial Abuse position of trust	No prior conviction	20 years
34	State v Komai Balal (No.2) (2005) N2821	Manuhu, AJ	Offender raped his 13 years old daughter Victim tied up & left in the bush		15 years
35	State v Seyo Aroko (2005) N2822	Manuhu, AJ	Offender raped mother of 9 month old baby Some violence Victim wounded		8 years
36	State v Jafisa Winga (2005) N2952	Kandakasi, J	Conviction after trial 2 counts of rape Use of bush knife		27 years

11. In 1987, the Court in John Aubuku v State [1987] PNGLR 267 at pp.268-269 developed a sentencing guideline for rape cases. See also State –v- James Yali (supra). The sentencing guideline is re-stated in order to easily comprehend the sentencing trend in rape cases.

12. Kandakasi J in Baimon Johnny's case (supra) made observation in the earlier case of Thomas Waim v State where the initial sentence of 25 years was reduced by the Supreme Court to 18 years. Thomas Waim's case was classified as a "case of multiple rape of worst kind". However, the Supreme Court in Thomas Waim's case under the reason of "no quantum leap" reduced 25 years sentence to 18 years. Supreme Court ruled that instead of making a big jump, the Court at first instance should consider a gradual increase. The Supreme Court went on to say, "sentence that constitutes a huge jump or increase from the prevailing practices ought not to be imposed."

13. Based on the "no quantum leap" principle, the Supreme Court in State v Ian Napolean Setep (2001) SC 666 reduced the initial sentence of life imprisonment to 25 years. The Napoleon Setep's Case was a case of a convicted murderer who escaped from prison and led a gang to commit gang abduction and rape at gunpoint. The victim was repeatedly raped at various locations and finally at a house where she was introduced as the appellant's wife.

14. I fully endorsed the view of my brother Kandakasi J once again in Baimon Johnny's case (supra) and I quote;

"Despite the need for a progressive increase in sentences in view of the increase and prevalence of the offence some National Court Judges have been imposing lenient sentences. This Court went on to say that whilst it accepted the public outcries against lenient sentences cannot be the soled reason to suddenly increase sentences, a sentencing judge should nevertheless note that, this is an indication and response by the community to the kind of sentence imposed. After all, the sentencing power, the sentencing Judges exercise, is a power that belongs to the community and as such, they should respond appropriately to the community's reactions to the offence of rape or any other offence, with higher sentences than those imposed to that in similar cases."

15. In Rudy Yekat v The State (22.11.00) SC665, the Supreme Court confirmed a sentence of 8 years where the prisoner used a bush knife, threatened the victim and raped her. The Supreme Court (per Jalina, Kirriwom & Kandakasi, JJ) said;

"We fail to find how the learned trial judges erred in his judgment and the decision to impose the 8 years sentence. Indeed, the sentencing trend in this sort of cases is on the increase since the Aubuku case as shown above. This is reflective of the fact that the crime of rape is on the increase and the sentences imposed by the Courts appear not to be deterring would be offenders from committing such offences. Society is becoming unsafe for our women and girls because of offenders like the Appellant. The Appellant is very fortunate to have, in our view, received the sentence of 8 bears which is light".

16. The often much expressed quote found in National Court judgments dealing with rape cases is the 1998 Supreme Court judgment in Lawrence Hindemba v The State (1998) SC 593 which stated that:

"The crime of rape is a violent and prevalent offence. The seriousness of the re-iterated in many cases by this Court and the National Court including the 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 new to increasing the sentences given the prevalence of the offence and the society's demand 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 Judgement in SCRA No. 95 of 1996 (4th 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 ranges of 14- 18 years".

17. Rape and sexual violence fall within the classification of "attacks against the honour of women" or outrages upon human dignity. The belief that a raped woman is dishonoured or loses her dignity cannot be ruled out in many communities. In 2004, Sevua, J (as he then was) expressed similar sentiments in State v Nick Teptep (2004) N2612 that:

"Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because 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's 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, reflects the attitude that enough is enough and that women folks look to the Courts for protection."

18. If we look few years after John Aubuku's case, concerns were expressed regarding rape cases. Injia, J (as he then was) in State v Kenneth Penias [1994] PNGLR 48 made the following remarks;

"Rape constitutes an invasion of privacy of the most intimate part of a women'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 en, as guaranteed to them under our constitution. They are entitled to be respected and fairly treated."

19. Being a female can now be seen as a risk factor as women and girls are often targeted for sexual abuse on the basis of their gender. The humiliation, pain and terror inflicted by rapist are meant to degrade not just the individual woman but strip the humanity from the larger group of which she is part of. The shame of rape humiliates the family and all those associated with the rape victim. In the aftermath of such abuse, the harm done to the individual woman is often obscured or even compounded by the perceived harm to the community.

20. Rape and sexual assault often have particularly devastating consequences which, in certain instances may have a detrimental effect on the victim. It has been noted further that testifying about the event is often difficult, particularly in public, and can result in rejection by the victims family and community. In addition, traditional court practise and procedures have been known to exacerbate the victims ordeal during trial. Women who have been raped and have sought justice in the legal system commonly compare this experience to being raped a second time.

21. In 2002 when amendments were done to s.347 of the Criminal Code Act, distinction has been made between rape aggravation and rape without aggravation. For rape without aggravation (or so to say "simple rape") the maximum penalty is up to 15 years and for aggravated rape, the penalty is maximum sentence of life imprisonment. See State v Donald Angavia, Paulus Moi & Clement Samokad (No.2) (2004) N2590.

22. In State v James Yali (2006) N2989 Cannings, J made this remark and I quote;

"Recently the Supreme Court gave detailed guidelines for manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789 (per Injia DCJ, Lenalia, Lay JJ). However, the Supreme Court is yet to give sentencing guidelines for rape under the new law. It gave guidelines for rape under old law in John Aubuku v The State [1987] PNGLR 267. The tariffs or head sentences recommended are now regarded as out of date."

23. After the Supreme Court setting sentencing guidelines in John Aubuku v The State (supra), the effect of the ruling by the Supreme Court in Thomas Waim v The State (supra) with the sentencing practice of "no quantum leap" is that almost all sentences tend to cluster around starting point and toward mid –point and relatively none got to the maximum penalty of life imprisonment let alone in the 2001 the decision by Salika, J (as he then was) which later was appealed against and sentence of life imprisonment was reduced to 25 years. See State v Ian Napolean Setep (2001) SC 671.

24. Analysing the sentencing trend from the past decided cases (2003 and upwards) as stated in the Table A, the following can be the devised bands of offending for rape. It is appreciative if the Supreme Court could devise a sentencing guideline for rape cases now that the guideline set in John Aubuku's case (supra) is considered as out of date.

RAPE BAND	DETAILS	SENTENCE
1	Offending at the lower end of the spectrum where there are no aggravating factors. No serious violence No abduction No detention or captivity Victim is not very young or very old No prior conviction No physical injuries Guilty plea.	8 – 12 years Depending on circumstances of each case
2	Involves moderate violence Pre- meditation Rape involving more than one offender or an especially vulnerable victim Use of drugs, alcohol or other substances to facilitate commission of the offence Threats to prevent victim reporting the offence Offenders armed with offensive weapons Offenders had prior conviction	13 – 17 years Depending on circumstances of each case
3	Offending with serious additional violence with multiple (3 or more aggravating factors like cruel, callous or violent rape. Offenders sexually transmitted infection or disease Pregnancy or infection results Vaginal or anal injuries requiring medical repair	18 – 25 years Depending on circumstances of each case
4	Multiple offending over considerable periods of time Gang or pack rape Conviction after trial Vaginal or anal injuries requiring medical repair	26 years & above that term of years Depending on circumstances of each case
5	Rape and injuries inflicted causing death Rape whether single or pack or gang rape causing life threatening condition resulting in permanent disability.	Life Imprisonment

25. From the 5 Rape Bands, it can be revealed that all non-consensual offences involve the violation of the victim's sexual autonomy and would most likely result in harm. The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm cased in the first instance.

26. The extreme youth or old age of a victim, should be an aggravating factor. In addition, in principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be. However, the youth and immaturity of the offender must be also taken into account in each case. All the non-consensual offences involve an high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence.

27. The prisoner has also been found guilty and was convicted for causing grevious bodily harm to the victim. He was convicted under s. 319 of the Criminal Code Act, which carries a maximum penalty of up to seven (7) years.

28. During the course of pack raping or gang raping the victim, the prisoner and three of his accomplices pushed a sharp object into the victim's anus and when the object was pulled out, the victim's intestine was pulled out also. Due to the intestine been pulled out, it was damaged and a by-pass operation was done on the victim on her lower abdomen to pass her waste. The grevious bodily harm caused upon the victim has caused her permanent disability. Refer to Medical Report dated 25th February, 2010.

29. In assisting this court to consider appropriate sentence for the prisoner, Mr R. Kasito of Counsel for the prisoner referred to the following cases; State v Ruben Irowen (2002) N2239, in which a bush knife was used to inflict serious multiple injuries on the shoulder, arms and legs of the victim rendering both of them unconscious. Prisoner did not express remorse or pay any form of compensation. Prisoner pleaded guilty and was a first time offender. Prisoner was sentenced to seven (7) years imprisonment in hard labour.

30. In State v Henry Idab (2001) N2172 there was serious bush knife injuries to both of victim's hands resulting in an 85% loss of effective use of his hand. Prisoner pleaded guilty and was a first time offender. He was sentenced to 5 years imprisonment. Two years of the 5 years were suspended with strict conditions. In State v Inapero Susure (1997) N1880, the prisoner used an axe to cut the victim on his head and nose. The victim was unarmed. Prisoner pleaded guilty and co-operated well with the police. Prisoner was sentenced to 3 years. Of the 3 years, 2 years were suspended and prisoner was placed on probation. Prisoner was to serve only one (1) year imprisonment.

31. State has referred to the following cases; the cases of State v Apa Kuman (2000) N2047 and the State v Vincent Naiwo (2004) N2710. In Apa Kuman's case (supra), the prisoner cut the victim across the stomach to prevent her from calling out whilst raping her, she bled heavily and only immediate medical attention prevented death. The court took into account the prisoner as a first time offender and accordingly imposed a sentence of three (3) years imprisonment.

32. In State v Vincent Naiwo (supra), the prisoner pleaded guilty of causing grevious bodily harm to the victim. The victim was the sister in-law of the prisoner and the prisoner cut her with a bush knife which resulted in three of the victim's fingers been amputated. The court also noted that the prisoner was a first time offender and sentenced him to five (5) years imprisonment.

33. If we consider all these cases, the case which seems to fit in well with our present case would be the case of State v Apa Kuman (supra). In Apa Kuman's case, the prisoner was sentenced to three (3) years in hard labour. The distinction we can draw from Apa Kuman's case to the present case is that in the Apa Kuman's case it was a singe rape case whereas in the present case it is a gang rape or pack rape case. I, therefore consider an appropriate sentence for the prisoner for the offence of grevious bodily harm is four (4) years in hard labour.

34. Having appreciated the sentencing trend developed by Courts over the years 2003 and upwards for rape cases, I will now consider an appropriate sentence for you. In order to do that, I will take a number of factors in to consideration. I will weigh the mitigating and the aggravating factors in your favour and against you. I will take note of your personal background and what you said in allocutus. I will also consider the Pre-Sentence Report (PSR) prepared for you by the CBC office here in Goroka. I will take into account what your lawyer has submitted to be an appropriate sentence for you and likewise what the State Prosecutor has submitted to be an appropriate sentence for you.

35. Firstly, I have noted that you are aged 25 years, married with no children. You were self-employed at the time you were apprehended for this offence.

36. Secondly, I consider these factors to be against you. You pleaded not guilty; a trial was conducted and was found guilty. You were convicted after trial. You committed this offence under the pretext of walking or assisting the victim to her house. You were intoxicated. You blocked the victim's mouth with your hand and dragged her to the mountain slope, you were assisted by your three (3) other accomplice, victim was stabbed with a knife on her face, victim sustained injuries to her anus when a sharp object was pushed inside and pulled out, her intestine came out. Victim suffered permanent disability in that she can't pass waste naturally but a medical by-pass was constructed for her to do so.

37. The Pre-sentence Report (PSR) has been compiled for the purpose of your sentence. This report does not speak favourably of you. The report recommended you to be a high risk person and not suitable for a suspended sentence.

38. I also note that you did not express remorse or say sorry in your allocutus for what you have done and may be this is consistent with your plea of not guilty. I take this to mean that you are not ready to accept responsibility for what you did and try to avoid responsibility. You maintained the same when interviewed by the CBC Officer. In the PSR you blamed some boys who came after you did the offence and not you.

39. This is your first conviction. Until this offence was committed you have been a good citizen. Now that you have played a key role in the commission of this offence your name has been greatly tarnished.

40. Taking all the above stated factors carefully into consideration, weighing factors for and against you, the best appropriate sentence that I find appropriate for you would be a sentence of 27 years for eight (8 counts ) of rape and 4 years for Grevious Bodily Harm. This will be a total of 31 years sentences to be served. However, I order that these sentences be served concurrently, in that you will serve only 27 years. I deduct 2 years, 5 months as pre-trial period served in custody. This will leave a balance of 24 years, 7 months to serve. I order that you will serve the balance of 24 years, 7 months at Bihute Correctional Institution in hard labour. Warrant of Commitment will be issued according to these terms.

__________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner

RAPE 1.	Simple rape case without aggravating & mitigating factors.	5 years
RAPE 2.	Gang rape:- A person who abducts the victim & held her captive Person in position of trust towards victim	8 years
RAPE 3.	Rape committed as part of concerted campaign – accused represents more than ordinary danger.	15 years
RAPE 4.	Rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, where the accused is likely to be a danger if at large in the community.	Life Imprisonment

National Court of Papua New Guinea

State v Frank (No.2) [2012] PGNC 88; N4700 (13 June 2012)