State v Titibai [2014] PGNC 117; N5744 (23 April 2014)

N5744

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.381OF 2013

THE STATE

-V-

HERMAN TITIBAI

Kokopo: Lenalia, J.
2014: 20th March, 3rd 14th & 23rd April

CRIMINAL LAW – Aggravated rape – Plea of guilty – Section 347 (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 – Aggravated rape – Breach of trust - one off incident – Rape of step-daughter – Prisoner aged 44 years – Victim aged 26 years.

CRIMINAL LAW – Sentencing principles in rape cases – Circumstances of aggravations – The prisoner a step-father of the victim – Accused married to the mother of the victim – Threatened violence during the rape – Appropriate sentence 15 years imprisonment.

Cases cited

Maima v Sma [1972] PNGLR 49
John Aubuku v The State [1987] PNGLR 267
The State v Kenneth Penias [1994] PNGLR 48
The State v Thomas Waim [1995] PNGLR 187
Thomas Waim v The State (2.5.97) SC519
Lawrence Indemba v The State (27.10.98) SC593
The State-v-Penias Moke (No.2) (2004) N2635
The State-v-Biason Benson Samson (2005) N2799
The State-v- Ndrakum Pu-Uh (2005) N2949
The State v Tomitom (2008) N3301
The State v Irox Winston, (2003) N2347
The State v Philip Komo (19.11.09) N3816,
The State v Jerome Deila (20.8.09) N3840
Counsel

Mr. L. Rangan, for the State
Mr. S.Inisi, for the Accused

SENTENCE

23rd April, 2014

1. .LENALIA, J: The prisoner Herman Titibai of Taulil No.2 village, Toma, Vunadidir Local Level Government, Central Gazelle District pleaded guilty to one count of aggravated rape contrary to s.347 (2) of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
   

2. Circumstances of aggravation are pleaded in the indictment because the prosecution say, Francesca Titibai was then in a relationship of trust, authority and dependency with or to the prisoner. The second leg of aggravation is that, the accused confined or restrained Francisca Titibai before committing the offence.

Facts

3. The record of interview from questions 23 to 25 and their answers contain admissions in relation to the aggravated rape that took place in a family house at Taulil village, Gazelle District E. N. B. Province.

4. The statement by the victim Francisca Titibai (Ex. "B1" and "B2" confirms the prisoner's guilty plea in which she says that the prisoner is her step-father. On the night of 18th January 2013, at their family house, the prisoner called the victim out from her room and spoke angrily to her because she had had a child out of wedlock and she was impregnated by another man.

5. After talking to her, the prisoner used his hands to close the victim's mouth and thereafter he sexually penetrated her. During the course of the ordeal, she tried to call out but the prisoner pushed his fingers into her mouth to stop her from calling out.

6. The offence took place when the mother of the victim was in Kavieng. Her mother is teaching somewhere in New Ireland Province. She comes from Anir Island, Namatanai District. According to the facts, the mother of the victim had earlier married to a man who is the father of the victim. The mother left that first husband and got remarried to the prisoner. This happened when the victim was very small.

7. In law the prisoner is a step-father of the victim in terms of s.6A (2) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Addresses on Sentence

8. On the part of the prisoner, in his allocutus, he expressed great remorse for what had occurred which the prisoner said was out of frustration and anger. He said sorry to the victim and to the court. He said, at the time he committed the offence, his wife is not from this Province and she was not with him because she is away in New Ireland Province teaching. He asked the court to be merciful to him on sentence.

9. Mr. Inisi of counsel for the prisoner asked the court to consider the following mitigations together with the terms of the pre-sentence and means-assessment reports:

➢ The prisoner's early expression of remorse to the police investigating officers,
➢ His guilty plea,
➢ That he is the first time offender,
➢ No embarrassment caused to the victim compared to where if there was a trial if he pleaded not guilty,
➢ Compensation was made to the victim's uncles before he came to court,
➢ No weapons were used,
➢ No sexual deceases passed on the victim,
➢ Comments by the victim in the pre-sentence report, no injuries caused and
➢ There was genuine forgiveness in the family environment

10. Ms. Gore who stood in for Mr. Kupmain submitted on the seriousness of the charge of rape. Counsel submitted that, this case involved breach of trust, authority and dependency. Both counsel referred to the case of The State v Ilam Peter (2006) N3090 where retired Judge, Justice Lay sentenced the offender to 14 years imprisonment on the offender for a charge of rape and sexual touching of his daughter.

Law

11. The charge of rape is very serious indeed since, sexual intercourse is had against the will of a female party. As usually in rape cases, this crime involves the weakest members in the community. The crime committed by the prisoner is defined in s.347 (2) of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002as follows:

"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."

12. Aggravating circumstance associated with the charge is pleaded on the indictment.

13. Criminal law practice establishes that the maximum penalty must be reserved for the worst type case encountered in practice. The general principle of sentencing in criminal practice in this jurisdiction is the maximum penalty is reserved for the worst cases encountered in practice: Maima v Sma [1972] PNGLR 49. The maximum penalty for rape is 15 years in ordinary rape cases. In case where the rape is aggravated by circumstances of aggravations as was in this current case, the prescribed maximum is life imprisonment because there was an existing relationship of trust, authority or dependency between the prisoner and the victim. This is subject to s.19 of the Criminal Code.

14. Sexual abuse of young children is very common in this Province. In this country there is an out-cry to increase punishments for sexual offences. Death penalty has been proposed for the offence of rape. The theme of sexual abuse of our women and young girls whether under age 12 or above is being seriously and adequately addressed by the Parliament. This resulted in amending certain provisions of the Criminal Code which are now contained in the Amended Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002.

15. Pursuant to s.347 (2) of the Criminal Code, the prisoner's case falls into the aggravations referred to as "circumstances of aggravation". This phrase is further highlighted by the definition in s.6A (1) & (2) of the Criminal Code. This provision reads:

"6A.RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY.

(1)When the term "relationship of trust, authority or dependency" is used in the definition of the offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A relationship of trust, authority or dependency" includes,

but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

16. Further definition of the terms "circumstances of aggravation" is provided for in s.1 of the Criminal Code which states:

"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."

17. Breach of trust is of the most severe kind where sexual abuse takes place in a homely environment. In particular when it occurs between parents and children, brothers and sisters, mothers and sons and the extended family as defined by s.6A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, see (See The State-v-Mitige Neheya [1988-89] PNGLR. 174 & The State-v-Sottie Apusa [1988-89] PNGLR. 170

18. Mr. Inisi of counsel for the prisoner urged the court to take into account his client's case situation where the father is performing motherly responsibilities because the mother is away teaching in another province. Certainly, the Court will consider the fact that the accused had paid compensation. But compensation is not paying for someone's crime like in the instant case where the prisoner accused abused his step-daughter. With respect, in my view, there is nothing that can be considered in favour of the prisoner

19. Though Section 347 (2) of the Criminal Code makes an offender liable to life imprisonment, depending on the circumstances of each case, Section 19 (1) (a), 19(1) (d) and 19(6) confer discretion on the Court to sentence the offender to a lesser term or to suspend part or the entire sentence.

20. In this case the victim was at the age 26 years. Due to the fact that, the accused is the step-father of the victim, the Court finds that there was an existing relationship of trust, authority and dependency by virtue of Section 6A (2) (a) & (b) of the Criminal Code.

21. The case of The State-v-Penias Moke (No.2) (2004) N2635 establishes that, the more closer the relationship to an accused is to the victim, the penalty ought to be high. In your case the court found that the victim is your step-daughter. According to her statement and comments in the pre-sentence report, she addresses you as "father".

22. In considering the circumstances of a particular case, Cannings J. in The State-v-Biason Benson Samson (2005) N2799 restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously mentioned in The State-v-Pennias Mokei (No 2) (supra). Such considerations were also adopted by Lay J in The State-v- Ndrakum Pu-Uh (2005) N2949.

(a) Is there only a small age difference between the offender and the victim?

(b) Is the victim not far under the age of 16 years?

(c) Was there consent?

(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

(h) Was it an isolated incident?

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police in their investigations?

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

(l) Has the offender caused further trouble to the victim or the victim's family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

23. I adopt the above considerations and apply them to the circumstances of the instant case. I am of the view that the above considerations are useful guidelines to be considered in sentencing for child sexual penetration cases. I emphasize here the fact that, in any case of rape or sexual charges, it is up to a trial judge to determine the sentence to be imposed after having considered all of the circumstances of the particular case before him.

24. The case before this court is one of rape. I consider the principles of sentencing in rape cases set in previous cases. In John Aubuku v The State [1987] PNGLR 267 the Supreme Court approved sentencing guidelines for rape, and stated that immediate punitive custodial sentence is required unless there are exceptional circumstances. 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; and The State v Nick Teptep (2004) N2612).

25. Justice Kandakasi set out a useful discussion on sentencing trends in rape cases in The State v Tomitom (2008) N3301. His Honour observed that sentences for the crime of rape has increased in recent years whereby aggravated rape should now attract 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 incurred sentences of up to 25 years.

26. The Supreme Court expressed serious concern about rape cases in Lawrence Hindemba v State (supra) where it said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the 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, 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 view 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 SC519 (1997), and Sinclair Matagal v The State Unreported Judgment 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 victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

27. The above statement reveals that sentence for rape with aggravations should be high. The sentencing trend in more recent rape cases has seen an increase because of factors such as offenders using force, or where victims are of young age, or where there has been threatened force on victims and injuries caused to the victims, or where there has been abduction followed by rape. Such cases should attract sentences between 15 to 20 years. I fully endorse the force of the argument for higher penalties in cases of aggravated rape.

28. I am of the view that, to achieve the intention of the parliament the Courts need to follow Lawrence Hindemba v State (supra) with some adjustment according to the circumstances of each case and then depending on circumstances of each case, the range should be extended upward where the courts find that there are multiple factors of aggravations. This is the trend that has been followed so far in many cases.

29. I also note that the corners raised by the Supreme Court cases of John Aubuku v The State, Thomas Waim v The State, Lawrence Hindemba v The State (supra) and other cases on rape were made prior to the Criminal Code Amended provisions were effected and any suggested sentencing range may in my view would be outdated. However the discussion of law and the principles stated are good law.

30. Retired Judge, Hon. Justice Sevua raised the similar sentiments in The State v Nick Teptep (2004) N2612 where the Court there said:

"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."

31. I refer to two similar cases as the one before me. In The State v Philip Komo (19.11.09) N3816, the offender was charged with aggravated rape of his step-daughter similar to the instant case. It was a trial and the offender was found guilty. He was sentenced to 18 years by Ellis J in Kavieng. In The State v Jerome Deila (20.8.09) N3840 a similar case as the one before me, aggravated by existing relationship of trust, authority or dependency, Davani J sentenced the offender to 15 years.

32. Many other judgments of both the Supreme and the National Courts have adopted and applied the principles I have referred to. Some of those judgments are my own but I don't want to refer to them as I feel uncomfortable referring to my own with some of them not being tested by the High Court.

33. In The State v Irox Winston, (2003) N2347, Justice Kandakasi expressed a valid statement on constitutional responsibilities of the Courts where His Honour said:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people's wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

34. I adopt what the Judge said in the above case and apply it on this case. The Constitution places great responsibility on the Courts to seriously consider the peoples whishes on sentencing offenders for offences such as the one before me. National Court judges should ensure at the same time that, the kind of sentence they arrive at must be reflective of the people's wish. This is in addition to taking into account all the other relevant considerations such as principles laid down by the Supreme Court and the current sentencing trends by Judges of the National Courts and then arrive at a sentence that should be reflective of all of those considerations.

35. Except for those offences carrying mandatory minimum or maximum penalties, the National Court has unfettered discretion to impose a term of years to an appropriate sentence in each case. The Court will have regard to basic principles of sentencing that, each case must be sentenced on its own facts and that the maximum is reserved for the worst type case or cases. In Stanley Sabiu-v-The State (2007) SC866 the Supreme Court after reviewing suggested guidelines for sexual penetration cases in the National Court cases of The State-v-Pennias Mokei (No 2) (2004) N2635 and The State-v-Ndrakum Pu-Uh (2005) N2949, said:

"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him."

36. The prisoner's case is aggravated by first the breach of trust the victim reposed on him as a step-father. Secondly, by the time the offence was committed, the prisoner was 44 years of age. The victim was at the age of 26 years. The age gap was about 18 years difference.

37. I have considered addresses by the prisoner in allocutus, and the address on sentence by his lawyer and the State Prosecutor. I have also considered the terms of the pre-sentence and means-assessment reports. I consider the fact that the prisoner pleaded guilty to this very serious case and this is his first appearance in this Court. The Court also considers comments by ex Counsellor Nelson Malip of Taulil No.2 village, that of Pastor Joel Piniau and the victim.

38. Comments by the Pastor establish that the prisoner is changed person. That since the offender committed this offence, he visited the offender and counseled him. On penalty, both the Pastor Joel and Mr. Malip say they would leave it up to the Court to decide an appropriate penalty for the prisoner.

39. Having considered all aggravating circumstances together with all mitigations, the victim of this case was very closely related to the prisoner and although no harm or violence was caused to the victim, by custom in Pidgin, 'em pikinini ia maski baxarapim em'. Rape and other sexual offences occurring in homes in the family environments are very, very prevalent in this Province. There is now no respect for the dignity of our children and women. There may be no other ways to stop these types of sexual crimes but for the Courts to impose tougher penalties on offenders like the prisoner so that there is a signal sent out to the public at large that, there have always been laws to protect the rights of women including under aged children.

40. I am of the view that any sentences impose must reflect the serious view taken by the Parliament when it amended the sexual offences in the Criminal Code. I consider a custodial sentence of 15 years is sufficient. The Court suspends 4 years from this sentence on the following conditions:

(a) After serving 11 years, he shall enter into recognizance to keep the peace for 2 years.
(b) Shall further pay K400.00 to the uncles of the victim, since he has made prior compensation of sixty fathoms of Tolai shell money.
(c) The prisoner shall serve the balance of 11 years in hard labour.
(d) Any custody period can be deducted from the above balance.

____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused