State v Masaiong (No.2) [2013] PGNC 273; N5240 (14 March 2013)

N5240

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 308 OF 2012

THE STATE

V

AMBROSE MASAIONG (N0.2)

Kokopo: Lenalia, J.
2013: 4th & 14th March

CRIMINAL LAW – Sexual Offence – One count of rape – Sentence after a finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (1) & (2).

CRIMINAL LAW – One count of sexual penetration by insertion of finger into the victim's vagina by definition of s.6 of Criminal Code (Sexual Offences and Crimes Against Children) Act No.27 of 2002.

Held:

1. Where an offender pleads guilty or not guilty and later found guilty to a charge of rape pursuant to s.347(1) by other means other than by penile entry, the penalty imposed should not be higher than those imposed for rape under s.6 (a) of the Code.

2. Where such offence is committed with circumstances of aggravations such as breach of trust, authority or dependency, or where the victim is under the age of 12 years, the penalty should be just about the sentencing range for rape simpliciter cases depending on all circumstances of each case.

Cases cited:

Maima-v-Sma [1972] PNGLR 49
John Aubuku-v-The State [1987] PNGLR 267
John Elipa Kalabus-v-The State [1988] PNGLR 193
The State-v-Lawrie Patrick & 3 Ors [1995] PNGLR 195
The State-v- Kenneth Penias [1994] PNGLR 48
The State-v-Thomas Waim [1995] PNGLR 187
Thomas Waim-v-The State (1997) SC519
Lawrence Hindemba-v-The State (1998) SC593
The State-v-Alphones Apou (2003) N2431
The State-v-Nick Teptep (2004) N2612
The State-v-Pais Steven Sau (2004) N2588
The State-v-Dibol Petrus Kopal (2004) N2778
The State-v-Moses Jafisa Winga (No.2) (2005) N2952
The State-v-James Yali (2006) N2989
The State-v-Tomitom (2008) N3301
The State-v-Henry Umue (21.10.09) Cr.No.454 of 2008

Counsel

Mr. L. Rangan, for the State
Mr. T. Potoura, for the Accused

14th March, 2013

1. LENALIA, J: The prisoner was found guilty of one count of rape laid pursuant to Section 347 of the Criminal Code Amended where the State invoked s.6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act for rape by insertion of his fingers into the vagina of the victim. The above Sections are defined by the wording provided in those Sections in the following terms:

"347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

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

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

2. On this case circumstances of aggravations were not pleaded on the indictment. The next provision that defines sexual penetration is section 6 which states:

"6. SEXUAL PENETRATION.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is-

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other then in the course of a procedure carried ouust in good faith for medical or hygienic purposes."

Address in Allocutus.

3. On his last say, the prisoner said he is sorry to the Court and the family of the victim. He said, he has been found guilty and he requested for mercy from the Court when he is punished. He asked the Court to consider his background circumstances saying he is married with two children. And that if he is sent to prison, his family will suffer.

Defence submission on Sentence.

4. Mr. Potoura addressed his written submission. Counsel asked the Court to consider the prisoner's background circumstances and his personal antecedents. He comes from Lamusmus village in Kavieng, New Ireland Province. He is currently married to a woman from Rainau village in Bitapaka Local Level Government area, E. N. B. Province. They have two young children.

5. Counsel argued in submission that, the issue for the Court to decide is was the instant case the worst type case of rape encountered in practice. Counsel cited cases in his written submission to substantiate his submission that, the case before this case was not a worst type case of rape as it was insertion by fingers and not a case of penile sexual rape penetration as in other case he quoted. Counsel asked the Court for leniency because his client is the first time offender with no records of previous convictions. He asked the Court to consider sentencing options provided for under s.19 of the Criminal Code and for the Court to sentence the prisoner accordingly.

Prosecution submission of Sentence.

6. Mr. Rangan of counsel for the State submitted that, this case was the case of rape by insertion of the accused fingers into the vagina of the victim as defined by the Act in issue. Counsel agreed with parts of the defence submission on the sentencing discretion of the Court to impose an appropriate sentence.

7. Counsel referred to the last paragraph of the Ward Committee Mr. Anton Kavanamur saying, the Court should impose a deterrent sentence on the prisoner in order that other youths in the Bitapaka LLG area must see and ge the message that, there is a law to protect girls and women alike.

Pre-Sentence and Means Assessment Reports.

8. The Court has read the pre-sentence and means-assessment reports where a number of persons were contacted in the earlier report by the Senior Community Base Correction Officer Mr. David Simiriong.

9. Ward Committee Anton Kavanamur was contacted for his comments about this offence. Ward Leader of Tapo Ward, George Uratigil, Nelson John, and Chairman of the Parish Pastoral Council at Tapo expressed their willingness to assist in the process of settling on this case which had gone past such stage.

Victim Impact Statements.

10. On the victim impact statements (Irene Maur), the victim commented that the experience created by the accused haunts her and every time she sees the accused she hates him. Sometimes she is so carried away in class with the thought of recalling what the accused did to her. She is currently doing her Grade 12 at Malabonga Secondary School. Every time she does that, it hurts her and this affects her performances in her education.

11. In case of the mother of the victim (Hendriella Maur), she expresses similar sentiments. He feels hurt because the prisoner is like a brother in-law of the victim because after the incident, the victim could not walk well due to pain from scratches Iren suffered her vagina. She is now concern that since she has other daughters, she does not want them to be affected in anyway and the community should not tolerate this kind of practice.

12. The Ward Committee, Anton Kavanamur of Rainau village, Bitapaka Local Level Government expressed an interesting aspect of how the incident between the prisoner and the victim has caused a rift between the family of the prisoner's wife and that of the Irene's family line. The reason he is concern is because the victim is related to the prisoner's wife as a cousin sister and the prisoner is the brother in-law to the victim. He asked the Court to consider a punishment that can act as a deterrent and other young people will see and appreciate the fact that there is a law that protects women and girls.

Application of law.

13. The nature of this case would be similar to sexual touching charges brought pursuant to s.229B of the Act. May be because of the force nature and circumstances under which this offence was committed that the prosecution chose to charge the accused for rape. Rape in this case was not penile penetration but was done by definition of s.6 (b) of the Act. This provision states that where a person introduces any part of his or her body or any objects other than by the penis, into the vagina, anus or mouth of another person is sexual penetration by definition of s.347 or any other sexual penetration cases under the Criminal Code Amended.

14. Rape with circumstances of aggravation under section 347(2) Criminal Code carries a maximum penalty of life imprisonment. Where there were no aggravations, the penalty is 15 years imprisonment.

15. To clearly reflect the view of the general public that sexual offences are repulsive and contrary to common decency and values and that sexual offenders must be severely punished as legislature has enacted stern penalties designed to protect the victims of such offences particularly women and children and other vulnerable persons. The amendment to s.347 Criminal Code in 2002 introduced two penalty provisions for rape – "rape simpliciter" attracts a maximum penalty of 15 years imprisonment while the maximum of life imprisonment is prescribed for "aggravated rape".

16. Judges of both the National and Supreme Courts have expressed great concern on rape case in various ways. I cite and quote some cases now to illustrate the sentencing trends on rape cases and those persons who have appealed to the Supreme Court. For instance, in The State-v- Kenneth Penias [1994] PNGLR 48 at p.51 Injia, AJ (as he then was) expressed the following sentiments on rape cases:

"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. Unfortunately, rape has become a prevalent offence in this country. Women in towns and in 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 tranquility, 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."

17. In a latter case that of The State-v-Nick Teptep (2004) N2612, Sevua, J (now retired) echoed similar sentiments. His Honour remarked:

"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, reflect the attitude that enough is enough and that the women folks look to the Courts for protection."

18. I fully endorse these well-expressed statements by their Honours.

19. In John Aubuku-v-The State [1987] PNGLR 267 the Supreme Court set out seven sentencing guidelines for rape, and stated that immediate punitive custodial sentence is required unless there are exceptional circumstances present. The guidelines recommended sentences between five (5) years for rape in less serious cases of rape to life imprisonment. Since the late 90's, the courts have varied and increased the recommended tariffs, considering them as outdated given the increase in such crimes. (See Thomas Waim-v-The State (1997) SC519; Lawrence Hindemba-v-The State (1998) SC593.

20. In The State-v-Tomitom (2008) N3301 Justice Kandakasi set out a useful discussion on the development of the law and the sentencing trends in rape cases, and observed that sentences for rape has increased in recent years whereby aggravated rape now attracts sentences of over 15 years imprisonment. It appears that in the more serious cases involving gang rapes after abduction of a victim and the use of weapons have increased sentences of up to 25 years.

21. On the penalty regime, in a case in the Province in The State-v-Henry Umue (21.10.09) Cr.No.454 of 2008, the accused was found guilty by this Court on two separate counts of raping his two nieces. The victims were the daughters of the prisoner's wife elder sister. He was sentenced to 25 years consecutive sentences. The Court there made the following comments at paragraphs 35 and 36:

"On my part, I say the crime of rape is forceful sexual intercourse upon our women who become easy prey because they are by nature weak and lack physical ability to resist when attacked. This is why in the cases I have cited above and even the ones below have suggested that sentences for rape cases and in cases of abuse of trust must increase dramatically. The law protects people who are most vulnerable to circumstances beyond their control."

22. In The State-v-Moses Jafisa Winga (No.2) (2005) N2952, the prisoner was found guilty on two charges of rape of a close relative with circumstances of aggravations. Kandakasi J sentenced him to consecutive sentences of 26 years.

23. In The State-v-Pais Steven Sau (2004) N2588, it was a guilty plea by an adult male offender in aggravating circumstances. In that case, the offender, a mature single man related to the victim, abducted and raped a married woman in the presence of two of the victim's small children. The offence was committed in a breach of trust situation. He was sentenced to 15 years.

24. In The State-v-James Yali (2006) N2989, the prisoner was aged 41 and a serving member of the National Parliament and Governor of Madang Province. Cannings J sentenced him to 12 years after a trial. He was convicted for raping his de-facto wife's sister. The victim was aged seventeen years old.

25. In The State-v-Alphones Apou (2003) N2431, Davani J, sentenced the offender to 16 years who pleaded guilty to a gang rape of a 15 years old girl. She was held for seven hours and offensive weapons were used to threaten her.

26. In The State-v-Dibol Petrus Kopal (2004) N2778, Lay J, sentenced the prisoner to 15 years. That case was a trial and the circumstances of aggravations were not pleaded on the indictment. His Honour found on the trial that, as the proven facts of the case disclosed circumstances of aggravations, such should be taken into account on sentence.

27. In The State-v-Thomas Waim [1995] PNGLR 187, it was a case of pack rape. The prisoner was one of the men who raped the victim after they abducted her and introduced her to her friends who later took turns to rape her. The prisoner was charged with four counts of rape with various aggravations. He was sentenced to 25 years.

28. Rape is one of the most serious violent crimes in our criminal law. In The State-v-Peter Kaudik [1987] PNGLR 201, the court there held that, "the offence of rape is a serious crime which calls for immediate punitive custodial sentence than in wholly exceptional circumstances".

29. On this case, I have the view that in cases where an offender has been found guilty, no other exceptional circumstances should dissuade a Judge from imposing a sentence that would be considered as deterrent not only to the offender but to others or the general public. I adopt what His Honour, Amet, J (as he then was) said in Peter Kaudik case at page 207 (supra): "The sentence of this Court I believe should reflect the society's utter revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same right as do men, in their private persons."

30. An important aspect of sentencing is the consideration of the relationship of a victim to an offender. I note the State did not invoke and plead the breach of the trust relationship in the indictment. On their relationship, the prisoner is married to the victim's cousin sister. That is, the prisoner's wife is the daughter of Irene's uncle. The victim says in her impact statement that, the prisoner is her brother in-law.

31. Circumstances of aggravation were not pleaded on indictment but the evidence on trial clearly indicates that, by custom of the Rainau people, the prisoner though he comes from Lamusmus village in Kavieng, New Ireland Province, he is married to Florence Kauba from Rainau village Tapo, Bitapaka Local Level Government, E. N. B. Province, he has been accepted as part of the people from Rainau. By custom he is required to accept and respect the customs of his in-laws. This is evident from the comments by those who were contacted in the pre-sentence report and the impact statement of Anton Kavanamur.

32. Under the Act, circumstances of aggravations are set out in Section 349A in the following terms:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant' or

(g) the complainant has a serious physical or mental disability; or

(h) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

33. Section 1 of the Criminal Code also defines the phrase "circumstances of aggravation" in the following terms:

"circumstances of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

34. And although it was a one-off incident only, the prisoner is liable to a greater punishment than one where he would have been liable if circumstances of aggravation were not present.

35. One will note that where an offence in committed with underage girls, the theme of the Act is very specific in that, it provides for very high penalty for such cases and where there exists any relationship of trust between the offender and the victim, the prescribed maximum is life imprisonment. I should also quote s.229A although not relevant on this case, it carries the same message and the warning must be made loud and clear. It states:

"(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

36. In fact the prisoner could be sentenced today to life imprisonment according to s.347 (2) of the Act. The public must be aware that there is a law protecting the young girls, young women and the mothers alike. Sexual abuse of young children in this Province and this country as a whole is quite prevalent. Life imprisonment is again referred to in the section charge. Where an offence is committed with "circumstances of aggravation", an offender is liable to life imprisonment.

37. I have cited and quoted those provisions related legislations and passages from various case law authorities to show how serious is the charge of rape and other sexual crimes.

38. Your case went by trial. According to the case of John Elipa Kalabus-v-The State [1988] PNGLR 193 at 197, where an accused makes an expression of remorse early after the commission of an offence, the more favourable it would be for the accused. On this case, the victim came and testified in court about what the prisoner did to her. In law "the general principles of sentencing is the maximum sentence is reserved for the worst type cases": Maima-v-Sma [1972] PNGLR 49, see also John Elipa Kalabus-v-The State (supra).

39. When the victim was giving her evidence, the Court could tell and infer from her demeanour that she had to bare the shame of what she was telling the court. Relating the story of what occurred to her privately to a friend would be different from telling it to the Court and public who sat in court.

40. The Court takes into consideration the psychological trauma and the degradation she had to go through and the fear, continuing insecurity, the fear she now has against the prisoner are consequences that a sentencing Court must consider.

41. It was said in the above case that contrition and remorse expressed at the trial has less weight. As stated in the immediate above case, any remorse and contrition are usually matters to be weighed on sentence in favour of an accused if they are manifested in a plea of guilty. (See also The State-v-Lawrie Patrick & 3 Ors [1995] PNGLR 195).

42. Having considered the relationship between the prisoner and the victim and all factors raised by counsels and those comments expressed in the pre-sentence report and the impact statements, and having consideration of the fact that the prisoner comes from another Province, the Court considers that to restore normalcy between the prisoner and the victim's relatives, the Court must order some form of compensation to be paid by the prisoner to the victim and her line apart from any other penalty that the Court will give.

43. All cases that were cited to me were penile rape cases. On the instant case, it was rape by insertion of the prisoner's fingers into the vagina of the victim. I hold the view that sexual penetration by insertion of either fingers or any objects in term of s.6 (b) of the Act, sentences should be less than those for rape simpliciter. If rape by insertion of any objects is aggravated by an existing relationship of trust, authority of dependency and where a victim is under the age of 12 years, should attract similar sentences as those imposed for ordinary rape cases.

44. In the circumstances of the instant case, there are various elements of betrayal of the trust which the court has mentioned on this discussion. The victim reposed trust in you as a brother in-law or what she put in her victim impact statement as "tabu".

45. At the relevant time you were about 27 years old. The victim was 17 years. You were much older than Irene. Your role as a father with two children would be akin to those of a teacher or a mentor for younger generations. Instead you defiled your own tabu. It is my view that a deterrent custodial sentence should be imposed.

46. Considering counsels addresses on mitigations and aggravations and considering the terms of the pre-sentence and means assessment reports and the victim impact statements, the Court should impose a sentence that should restore your relationship with your young family and your in-laws.

47. The prisoner is sentenced to a term of 7 years imprisonment. The court suspends the whole sentence on the following conditions:

1. The prisoner shall pay to the victim and her family an amount of K700.00 cash. His bail money of K500.00 is now converted into part payment of this cash amount. The remaining portion of this amount shall be paid within 14 days.
   
2. Further to the above order, the prisoner shall pay 100 fathoms of Tolai shell money to the victim and her mother. Such compensation shall be paid within 1 month.
   
3. The prisoner shall be engaged to perform or does community work for the Bitapaka Local Level Government Office every Monday of each week for a period of 3 months commencing on 18th March.
   
4. The Ward Committee Mr. Anton Kavanamur of Rainau village is now appointed to be the overseer or supervisor to arrange with the aforementioned LLG for manual job description on which the prisoner shall be engaged in.
   
5. After his release form the work commitment of Order 3 and 4 of this order, the prisoner shall keep the peace and be of good behaviour for 2 years.
   

____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused