N6420
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1060 OF 2016

THE STATE

V
SPINDA KWATOU MATAGEWANA

Alotau :  Toliken, J.
2016:   14th June &20th July.

CRIMINAL LAW – Sentence – Rape – Plea – Spousal Rape - Digital Penetration with fingers and size “D” battery – Rape preceded and followed with physical assault – Smearing and insertion of lime into victims vagina – Degrading and dehumanising – Mitigating and aggravating factors considered – Appropriate sentence – 8 years – Partial suspension on terms - Criminal Code Ch. 262, ss6, 347, 347C, 349A.

Cases Cited:
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
John Aubuku v The State [1987] PNGLR 267
Setep v The State (2001) SC666
Stanley Sabiu v The State (2007) SC 866 
Thomas Waim v The State (1997) SC 519
The State v Biason Benson Samson (2005) N2799 
The State v Felix Gerenua; CR NO. 886 of 2015 (12th Feb 2016)
 The State vPennias Mokei (No 2) (2004) N2655
The State v Simon Majoge; CR NO. 1212 of 2013 (25.09.15)

Counsel:

R. Roalakona, for the State
C.Kambua, for the prisoner

JUDGMENT ON SENTENCE

20th July, 2015

1.	TOLIKEN J.	On 14th June 2016 the prisoner, Spinda Kwatou Matagewana, pleaded guilty to an indictment charging him with one count of rape with a circumstance of aggravation thereby contravening Section 347(1) (2) of the Criminal Code Ch. 262 (the Code). He was charged that –

“… on the 10th day of December 2014 [at Libiya Village, Esa’ala, Milne Bay Province, he] sexually penetrated one Jacinta Sakapu without her consent.

AND AT THAT time, [he] was in a position of trust, authority or dependency in that he was the husband of Jacinta Sakapu.

2.	The supporting facts are that on 10th of December 2014, the prisoner was with his wife, the complainant, at their home at Bituma Island. An argument a rose between them over alleged affairs by the complainant with another man.

3.	  During the argument, the complainant poured a bottle of lime on the prisoner and the lime spilt all over his body. The prisoner got angry, so he took some of the lime and shoved them into the complainant’s vagina using his fingers. He then got a size “D” battery and pushed it into the complainant’s vagina. The complainant ran away that night and reported the matter.
 
4.	I was satisfied that evidence in the committal court depositions which included admissions by the prisoner, supported the charge, confirmed the plea and according convicted the prisoner.

5.	I administered the allocutus and heard submissions from counsel, but was unable to pass sentence. I do so now.
  
6.	The offence of  rape is defined by Section 347 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.

7.	It must be noted here that rape is no longer restricted to unconsented sexual intercourse or penetration between a man and a woman who are not married. The amendments brought about by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No 27 of 2002), s17, departed from the common law position (codified under the old provision for rape under the Code), that one cannot rape his own wife. The law, thus, now recognizes that there can be spousal rape or that a man can rape his own wife. Furthermore, the offence is also now gender neutral. In other words, rape can now be committed by both genders by the use of the generic term “person” in the definition of the offence. But, how can a woman rape another person, one might ask?

8.	The answer lies in the definition of the term “sexual penetration” by the Code. Section 6 provides –

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 than in the course of a procedure carried out in good faith for medical or hygienic purposes.

9.	So penetration (and hence rape) can be achieved by the insertion of a penis, other body part(s) or any object to any extent into the vagina, anus or mouth of another person. The slightest entry into these human orifices is sufficient to complete penetration.

10.	Section 347 also differentiates between what can be termed simple rape and one committed with circumstances of aggravation, and provides different penalties for them. The maximum penalty for simple rape is 15 years imprisonment while it is life imprisonment for rape with circumstances of aggravation. Circumstances of aggravation are defined by Section 349A and include but not limited to the following – 

(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).

11.	It is perhaps also instructive to mention that the Parliament has amended the Code yet again, by creating a specific offence called “Aggravated Rape” when it recently inserted Section 347C into the Code. (Criminal Code (Amendment) Act 2013 (No. 6 of 2013), s2.)  The offence is committed where a person “sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent whilst armed with a dangerous weapon or offensive weapon or instrument; or in company with one or more other persons; or causes grievous bodily harm to a person, before, after, or in the course of the offence; or if the victim is a child under the age of 10 years.” This offence is punishable by death.

12.	The above is a brief summary of the offence of rape (and aggravated rape) under the current law and the circumstances under which it can be committed, what constitutes the offence and who can commit the offence.

13.	Turning now the case at hand, the prisoner was charged under Subsection (2) of Section 347 and therefore is liable to be sentenced to life imprisonment.

14.	The maximum penalty is, however, as we know, usually imposed on the worst instances of a particular offence. Hence, whether the prisoner here will get a life sentence will depend, firstly, on whether his offence can be considered to be in the worst category, and secondly, according to the circumstances peculiar to his case. (Goli Golu v The  State [1979] PNGLR 653; Avia Aihi v The  State (No.3) [1982] PNGLR 92)

15.	The prisoner is 34 years old and comes from Gumwawana Island in the Esa’ala District. He was formerly married to the complainant but they have since separated and they have a child. He dropped out of Grade 3, which can hardly be called an education, hence, he is illiterate. He is an ordinary villager and lives a simple subsistence life. He is the 3rd born in a family of 8 siblings. Both his parents are deceased. He has no prior convictions and had been in pre-conviction custody for 1 year and 5 months. 

16.	The prisoner had written statement read for him when asked to address the Court before sentence. This is what he said;

I Spinda Magewana would like confess before God, to the Court and to the State for [breaching] the law of my country Papua New Guinea, my community in the society and lastly and her families for what I have done. 

I Spinda Matagewana  of Tokai village in Bituma Island, Dobu LLG, Esa’ ala District … I committed this offence to my wife Jacinta Sikapu, my wife on 1st week of December 2014 and I was charged [for] sexual penetration for pushing the size D battery into her vagina.  And now I apologise to this Court, State, my country, PNG and community in the society for what I have done to my wife (victim).

With these your honour, grant my humble request to the Court, that the Court give me mercy to go home to do compensation to my wife for what I have done  to her (when I go to the village).

But my reason on why I did this to her was, she always go around with a man namely Kevin, and this man got a baby with my wife. Si I now pleaded to this Court to given me probation or good behaviour bond to go back and look after my wife Jacinta. I have learned so much [while] in custody for 1 year and 6 months. And this was my first time to these custody and Police cells.  And I will not do anything such as this. That is all I have to say and thank you your honour and everybody. (Sic.)   

17.	Ms. Kambua, for the prisoner submitted that this is not a worst case of rape. Counsel said that the prisoner was frustrated and angry over his wife’s continuous affair with another man from whom she had a child while she and the prisoner were still living together. The prisoner was therefore provoked in the non-legal sense. An appropriate sentence, counsel said, should therefore be 10 years, part of which should be suspended.

18.	The prisoner has a favourable Pre-sentence Report. The prisoner confessed his offence and has offered to pay customary compensation to the complainant. He is considered to a suitable candidate for probation, and it is recommend that if probation considered, then it should include additional conditions such as community service, payment of compensation, non-consumption, selling, buying and processing of illicit alcohol, and marijuana.

19.	Ms. Roalakona, submitted for the State that this offence was committed with circumstances of aggravation - the abuse of trust by the prisoner in respect of his wife whom he should protect and not abuse. The alleged extra-marital affairs by the complainant were not an excuse for the rape. Personal violence on the complainant preceded the act of penetration, and the offence of rape (be it penile or digital) is such a prevalent offence that an appropriate sentence should be 15 years, Counsel submitted.

20.	So, is this a worst case of rape when viewed objectively? The seriousness of an offence can be determined by assessing the harm (actual or reasonably foreseeable) and the culpability of the prisoner. A good indicator of the level and degree of harm and culpability, thus the seriousness of the offence, would be the presence of circumstances of aggravation enumerated under Section 349A, such as  - 

(a)	whether the prisoner was in the company of another person or 	persons; or
	(b)	whether at the time of, or immediately before or after the 				commission of the offence, the prisoner used or threatened to use a 		weapon; or
(c)	whether at the time of, or immediately before or after the commission of the offence, the prisoner tortured or caused grievous bodily harm to the complainant; or
	(d)	whether the accused person confined or restrained the complainant 		before or after the commission of the offence; or
	(e)	whether the prisoner, in committing the offence, abused a position 		of trust, authority or dependency; or
	(f)	whether the prisoner is a member of the same family or clan as the 		complainant; or
	(g)	whether the complainant has a serious physical or mental 			disability; or
	(h)	the complainant was pregnant at the time of the offence; or
	(i)	the prisoner knew that he had Human Immunodeficiency Virus 			(HIV) or Acquired Immune Deficiency Syndrome (AIDS).

21.	The above considerations basically legislated some of the considerations which the Supreme Court in John Aubuku v The State [1987] PNGLR 267, had held to aggravate the offence of rape. Other considerations in John Aubuku  are: 
	
	  (a)	whether the rape was repeated;
	(b)	whether the rape had been carefully planned;
	(c)	whether the prisoner has a previous conviction for rape;
	(d)	whether the complainant was very old or very young, and
	(e)	 any physical or psychological effect of the offence on the 			complainant.

22.	Other relevant considerations may include -

	(i)	whether the complainant was subjected to further degrading and 		dehumanizing treatment;
	(ii)	whether the complainant became pregnant as a result of the rape;
	(iii)	if  the complainant was attending school, whether she was forced 		to terminate her education;
	(iv)	whether the complainant was infected with a Sexually 				Transmitted Infection other than HIV or AIDS, such as syphilis, 		gonorrhoea or Chlamydia and other such infections;
	(v) 	whether the prisoner has subjected the complainant to previous 			violence; 
	(vii)	whether the prisoner was under the influence of intoxicating liquor 		or drugs;
	(vii)	whether the prisoner had used alcohol or drugs to facilitate the 			rape.
	(viii)	whether penetration was penile, digital, use of other body parts or 		objects;
	(ix)	whether the complainant was abducted;
	(x)	whether the offence was committed in the course of a house 			invasion such a break and enter or burglary or in the course of a 		robbery.

23.	Some of these considerations were espoused by Cannings J. in The State v Biason Benson Samson (2005) N2799 and The State v Pennias Mokei (No 2) (2004) N2655, in respect of offences of sexual penetration of children, which, I would think should apply equally to rape cases. The Supreme Court in Stanley Sabiu v The State (2007) SC 866 said that these were useful considerations, but emphasised that it is for the sentencing court to determine an appropriate sentence after considering all the circumstances of the case before him.
 
24.	The presence or absence of the above factors will determine the level or degree of harm and culpability, hence, the seriousness or otherwise of the offence. This will in turn assist the court in setting a starting point.

25.	Where none of the above factors exist, culpability will be low, but where they exist, then, culpability will be assessed according to the number and quality of factors that exist in a particular case. Where several factors exist then culpability will naturally be high.

26.	The Supreme Court in John Aubuku provided some guidelines for starting points for rape under the repealed provision. These are –
(1)  	for rape committed by an adult without any aggravating or 			mitigating features, the starting point should 5 years;
(2)	for rape committed by two or more persons acting together, or by a 		person who has broken into or otherwise gained access to a place 		where the victim is living, or by a person who is in a 		 		responsibility towards the victim, or by a person who abducts the 		victim and holds her captive, the starting point should be 8 years;
(3)	for rape committed as part of a concerted campaign, where the 			accused represents more than an ordinary danger, a sentence of 15 		years or more may be appropriate;
(4)	for rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will be appropriate.

27.	These starting points may now be out-dated, but the relevant considerations pertaining thereto, are still very much relevant today as they were 29 years ago when John Aubuku was decided. I am not aware of any subsequent Supreme Court decision that has tried to review the starting points set in John Aubuku. Needless to say, the Supreme Court has on occasion expressed the view that given the ever increasing incidence of the offence, sentences must progressively increase from the tariffs set in John Aubuku. (Thomas Waim v The State (1997) SC 519; Setep v The State (2001) SC666) 

28.	Several factors exist in the case at hand. There was abuse of trust, the prisoner assaulted the complainant prior to, and after the rape, shoved lime into the complainant's vagina using his fingers and inserted a "D" size battery into her vagina which was degrading, humiliating and dehumanizing. Viewed objectively, the offence is not a worst case of rape. Given that this was not penile penetration, I would set a starting point of at 10 years. 

29.	The following factors mitigate the offence:

	(1)	The prisoner pleaded guilty early to his charge, thus, saving 			money and time for the State and further saved the 3 complainant           the trauma of re-living her experience had the case gone to trial.
	(2)	He co-operated with the police by making early admissions in his 		Record of interview.
	(3)	He is a first time offender.
	(4)	He was provoked in the non-legal sense, firstly by the 				complainant's infidelity when she continued her extra-marital affair 		with someone with whom she had had a child while married to the 		prisoner and secondly when she poured lime on him. 
	(5)	He seemed to be genuinely remorseful and has offered to 				compensate the complainant.
	(6) 	He did not pre-plan to rape the complainant, but reacted 				spontaneously when the complainant poured lime on him in a 			situation which would definitely have been highly charged already.
	(7)	He is a simple, illiterate and unsophisticated villager.

30.	There are, however, aggravating factors against the prisoner. These are:

(1)	There was serious breach of trust because the complainant was his 	wife. 
	(2)	He subjected his wife to degrading, humiliating and dehumanizing 		treatment when he first by shoving lime into the complainant's 			vagina with his fingers and then inserting a battery to her vagina.                    This would have taken a reasonable amount of force for him to                    subdue and sufficiently restrain the complainant. It is does not                      matter whether or not others were present when this happened, 			even though that would have aggravated or exacerbated her shame.

	(3)	The offence of rape - penile or otherwise - is a very prevalent 			offence.

31.	What then should be an appropriate sentence for the prisoner? 

32.	This is a case of spousal rape. The prisoner sexually penetrated his wife’s vagina, not with his penis, but with his lime- smeared fingers and by inserting a D size battery into her vagina without her consent. Digital penetration may be considered as not as serious as penile penetration. However, the seriousness of the act will be determined by things such as, whether the prisoner acted with total disregard to the dignity of the victim, the relationship between them and the frequency of the act, and where penetration is with the insertion of an object, the type of object used and any injury suffered or which may be reasonably foreseen to be done on the victim. 

33.	I have had occasion to deal with at least two matters involving spousal rape – one digital and the other penile. In The State v Simon Majoge; CR NO. 1212 of 2013 (25.09.15), the offender had taken his wife to a club to buy beer. After buying the beer they went to a friend’s house where he drank the beer while his wife waited. After a while the wife returned to their house to put their children to bed, but not without the offender telling her to return quickly. The wife took a while to return as their youngest child would not go to bed quickly. That made the offender angry so he followed his wife to the house. He asked her why she did not return quickly and she told him the reason. He then told her to put the child to bed quickly which she did. 

34.	When she finally came out, the offender beat her with a 2 meter long bamboo stick on her legs and back. He knocked her down to the ground and dragged her under the house and started to strip her off her clothes. She resisted, asking why he was doing this to her. However, the offender did not stop and finally stripped her naked by tearing off her clothes. He then pushed her to the ground again and sexually penetrated her vagina without her consent. After that he dragged her to the road and assaulted her again with sticks and stones.

35.	 He then took her back to the house and told her to go and fetch water for him to drink which she did. The prisoner took the glass of water from her and poured it on her naked buttocks saying “Dispela ass i no save harim tok. Mi kapsaitim wara bai em harim tok.” (“This bum does not listen. I will pour water on it so that it will listen.”). The wife managed to get away and reported the matter to the police. 

36.	The only mitigating factor in the prisoner’s favour there, was that he was a first time offender. His aggravating factors included assaulting the victim to subdue her submission before raping her, there was a breach of trust and he subjected the victim to further indignity after raping her. I fixed a starting point of 10 years and imposed a head sentence of 11 years, less time in custody. None of the balance was suspended.

37.	In The State v Felix Gerenua; CR NO. 886 of 2015 (12th Feb 2016), the offender sexually penetrated his estranged wife’s vagina with his fingers. He had met his wife at a garden and asked her for sex. When she refused, he grabbed her and digitally penetrated her with his fingers. The couple had been having marital issues which were made worst by the victim’s parent’s controlling influence over their daughter, and so they had been living apart for some time. I sentenced the offender there to 4 years imprisonment less time in custody. I wholly suspended the sentence and placed the offender on 3 years probation with additional conditions. The offender there was charged for simple rape and pleaded guilty.

38.	So what should be an appropriate head sentence here? The facts of this case fall somewhere in between Majoge and Gerenua. The prisoner digitally penetrated his wife, in what was also a strained marriage. But the prisoner went further. He stuffed lime into his wife’s vagina with his fingers. This would have definitely hurt her, and in fact she did say that she felt great pain. The prisoner did not stop there. Rather, he got a size “D” dry cell battery and inserted it into the victim’s vagina. His action, like that of Majoge, was degrading and humiliating.

39.	Granted, the prisoner’s wife might have indeed been having an affair with another man, but the prisoner had no right to mete out that kind treatment on her. I accepted that he would have been under some emotional stress by having to live with his wife’s infidelity. He was therefore provoked in the non-legal sense, which, I take not only to be a mere mitigating factor, but an extenuating circumstance that has the effect of reducing the gravity of the prisoner’s offence.

40.	All things considered, I think that an appropriate sentence for the prisoner should be 8 years imprisonment. I therefore sentence the prisoner to 8 years imprisonment, from which the 1 year and 5 months he was in custody in custody prior to his conviction is deducted. That should leave a balance of 6 years and 7 months.

41.	 Should any of this be suspended? The prisoner has a good pre-sentence report which actually recommends probation supervision for him. I will therefore suspend 3 years from the balance of his sentence and place him on probation for a period of 3 years with the following conditions –

1.	Upon his release he shall perform 100 hours of unpaid community service for the Bitma Aid post.
2.	Within 6 months of his release he shall reconcile customarily with Jacinta Skapu, which ceremony shall be witnesses by the Police Station Commander of Esa’ala Police Station, the Ward Councillor, Village Court Magistrates and Church leaders.
3.	The prisoner shall not buy, sell, process or consumed any form of liquor, legal or otherwise.
4.	The prisoner is to refrain from causing any further sexual or physical abuse on Jacinta Sakapu, whether or not the two of them decide to resume relationship.

42.	The prisoner will serve 3 years and 7 months (the unsuspended portion of his sentence) at Giligili Corrective Institution.
Ordered accordingly. 
____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor    : Lawyer for the Prisoner