State v Kekene (No.2) [2014] PGNC 140; N5768 (28 March 2014)

N5768

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NO.790 OF 2012

THE STATE

V

BENSON KEKENE
(NO.2)

Kokopo: Lenalia, J.
2014: 11th, 20th & 28th March.

CRIMINAL LAW – Three counts of aggravated rape – Sentence after findings of guilty to each count – Principles of sentencing

CRIMINAL LAW – Rape cases aggravated by threats of violence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2).

CRIMINAL LAW – Weapon used to threaten victim – No injuries or other aggravating factors – First time offender – Prevalence of offence – Parliament amending law on sexual crimes – Effect of – Sentence of 15 years imposed - Section 347 of Criminal Code.

Cases cited:
The Secretary for Law v Suares [1974] PNGLR 288
The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
John Aubuku v The State [1982] PNGLR 267
State v Peter Kaudik [1987] PNGLR 201
Thomas Waim-v-The State (1997) SC519
Lawrence Hindemba v State (1998) SC593
The State-v-Alphones Apou (2003) N2431
The State-v-Pais Steven Sau (2004) N2588
The State v Nick Teptep (2004) N2612
The State-v-Dibol Petrus Kopal (2004) N2778
The State-v-James Yali (2006) N2989
The State v Tomitom (2008) N3301

Counsel

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

28th March, 2014

1. LENALIA, J: On 11th this month, the prisoner, Benson Kekene was found guilty on three counts of aggravated rape pursuant to s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, (the Criminal Code). He was found guilty on the evidence which established that, on 23rd day of May 2012 at Kinabot Stage 1, Kokopo town, he sexually penetrated Serra Ronny against her will.

2. The evidence on trial was that, at the relevant date, the prisoner allured the victim into a banana patch on the top of the hill, he then used a small bush-knife to threaten her and thereafter, he sexually penetrated her against her will. After releasing his sperm, he rested for some time and he repeated sex two other times. Whilst doing what he did to the victim, he used his hands to block the mouth of the complainant to stop her from calling out and at the same time, threatened to cut her if she shouted.

3. What remains for the court to do now is to determine what penalty should be given to the offender.

Addresses on Sentence.

4. On his address on his final say, the prisoner said, he is sorry for committing this offence. He said sorry to the victim and her parents, to his parents and to the State and asked if the court could consider giving him a good behaviour bond.

5. Mr. Kaluwin of counsel representing the prisoner submitted the following mitigations and asked the court to consider them on sentence:

• First time offender,
  
• No injuries were caused to the victim,
  
• There may have been prior relationship between the prisoner and victim,
  
• The court to consider the pre-sentence and means assessment reports and comments by the victim asking for K1,000.00 compensation and a good behaviour bond be given to the prisoner.
  

6. Counsel submitted that his is an appropriate case where the court should consider restorative justice and the court should consider imposing a term of not more than 5 years and have it fully suspended.

7. Mr. Rangan of counsel for the submitted State that since this were rape cases aggravated by threat of violence, the court should consider punitive penalties and to take into account the fact the three offences were committed together and that they arose out of the same set of circumstances and the court should consider concurrent sentences.

Law

8. The three charges on which you were found guilty of are all serious in nature. They are serious because, the law on sexual penetration without consent of the victim, the prisoner could be sentenced to long terms of imprisonment. In the instant case where circumstances of aggravations were established by the prosecution evidence, the prisoner can be sentence to life imprisonment. This is subject to the sentencing discretion provided by s.19 of the Criminal Code.
The phrase "circumstances of aggravation" is referred to in s.347 (2) of the Criminal Code but it does not clearly identify what constitutes circumstances of aggravations. I quote both Subsection (1) and (2) of the above section. It states:

"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."

9. Note the difference between ordinary cases of rape and those cases which are aggravated by circumstances of aggravations. Circumstances of aggravation were pleaded on indictment as well the evidence on trial clearly established that, the prisoner used his hands to close the victim's mouth to stop her from calling out for help. He also had laid his bush-knife near where they were having sex and he warned her then threatened her that if she shouted, he would cut her up.

10. Circumstances of aggravations are not fully defined in Subsection (2) of the above Section, but s.1 of the Criminal Code defines the phrase "circumstances of aggravation" in the following words:

"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."

11. Further definition of the term can be found in s.349A (a)(i) of the Criminal Code. There may be other forms of aggravations and as such. The phrase or definition cannot be limited to what is defined in that provision. It states:

"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 tortures 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 complainant was pregnant at the time of the offence; or

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

12. The prisoner's case falls under Subsection (b) of the above section. He committed the crime three times so that the offences you committed occurred one after the other and although the prisoner said in his evidence that the acts of sexual intercourse it may have been consensual acts, he is liable to a greater punishment than one where he would have been liable if circumstances of aggravation were not present.

13. In fact, Benson, you must understand that today, you could be sentenced to life imprisonment according to s.347 (2) of the Act. The public must be made aware and be warned of the seriousness of such crimes as rape or other sexual crimes that there is law protecting victims from sexual abuse from predators who take advantage of young girls like the one you raped.

14. As the evidence shows, within that one or two hours hold up of the victim, you repeatedly had forceful sexual intercourse upon her. You said in your evidence that sex was consensual. You were represented by able counsels who know well the law about sexual penetration on the Criminal Code Amendment Act where s.229F provides that, in cases of sexual offences brought under Division 2A, consent is not a defence.

15. The Supreme Court which is the final Court of Appeal and the National Court have often called for strong and punitive sentences as a means to deter the crime of rape: John Aubuku v The State [1982] PNGLR 267. In the above case the Supreme Court said that an offender who commits an offence of rape without any aggravations sentences should range from 5 years and upwards. But that range is now outdated but the discussion of the law is good. The Supreme Court has often expressed sentiments that rape is violation of the women's right of privacy. In Lawrence Hindemba v State (1998) SC593 the Supreme Court 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."

16. 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 ages, or where there has been threatened force on victims and injuries caused to the prosecutrix, or where there has been abduction. Such cases should attract sentences between 15 to 20 years. I acknowledge the force of the argument for higher penalties in cases of aggravated rape. 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 the case and extending the range upward where there are multiple factors of aggravations. This is the trend that has been followed so far in many cases.

17. In the case 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. This court fully endorse the above well-expressed statement by His Honour and the statements of other Judges on the issue of violent crimes against our women folks.

19. In John Aubuku v The State (supra) 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 but for today that may not be relevant because of the prevalence of the crime of rape is now much like a normal occurrence in our time today.

20. The same Court said that for serious cases of rape, life imprisonment should be considered. 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.

21. What I have referred to above has been repeatedly mention in many both National and Supreme Court cases. Reflecting such concerns first by the Courts and the community at large, Judges in the National Court have entered into a new approach in sentencing offenders in rape cases. The following judgments is a reflection of such approach.

22. 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.

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. You are a young offender. On sentencing offenders like you, such sentences must reflect the nature of this crime, and any crime for that matter. In the case of the State v Peter Kaudik [1987] PNGLR 201, judgment delivered on 8 June 1987, by Amet .J (as he then was), the court discussed various factors to be relied on when sentencing offenders in rape cases. These were;

1. Violence is used over and above the force necessary to commit the rape;

2. A weapon is used to frighten or wound the victim;

3. The rape is repeated;

4. The rape has been carefully planned;

5. The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

6. The victim is subjected to further sexual indignities or perversions;

7. The victim is either very old or very young;

8. The physical or mental effect upon the victim.

28. His Honour in that case held that where any one or more of these aggravating features are present that the sentence should be substantially higher than the figure suggested as the starting point.

29. The line of case law authorities this court has cited support the above proposition that where rape or another crime is repeated like in the instant case, a sentence imposed on an offender should be substantially higher than what would be in any suggested starting point.

30. Mr. Rangan correctly referred the court to the totality principle on sentencing for offences committed one after the other or where in the course of committing an offence, another crime is committed. On this principle, I consider the fact that, the prisoner is charged with three counts of rape.

31. Where consecutive sentences are imposed, a final review of the sentence should be made to ensure that, the total penalty is not excessive: The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110. Not only that a sentence impose is not excessive but that, where cumulative or consecutive sentences are imposed, totality sentences must not exceed the prescribed maximum penalty: The Secretary for Law v Suares [1974] PNGLR 288.

32. I note here that the crimes committed by the prisoner were committed with threats of violence and the maximum penalty is life imprisonment. Applying the principles stated in the case of The Secretary for Law v Suares (supra), such principle will not detrimentally affect whatever penalty the court will pronounce upon the prisoner this morning.

33. Having considered all addresses on sentence, the terms of the pre-sentence and means-assessment reports, the principles of law on sentencing in rape cases and the totality principle which I have just referred to, the prisoner is sentenced in the following terms:

➢ Count.1 – Sentenced to 15 years imprisonment.
➢ Count.2 – Sentenced to 8 years to be served concurrently upon Count 1.
➢ Count.3 – Sentenced to 9 years to be concurrently served within Court 1.

34. The court suspends 7 years from that sentence and you shall serve the balance of 8 years. The time spent in custody shall be deducted from the period he is to serve. The 7 years are suspended on the following conditions:

1. Upon his release, he shall enter into recognizance to keep the peace and be of good behavior for 2 years.
   
2. His bail money shall be refunded, and he is ordered to pay K600.00 compensation to the victim within six months.
   
3. The imprisonment term shall be served at Keravat Jail.
   

Sentenced accordingly.

_______________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.