State v Malabebe [2016] PGNC 229; N6424 (16 June 2016)

N6424

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 252 OF 2013

THE STATE

V

LENDEN MALABEBE

Alotau: Toliken, J.
2016: 09^th May And
08^th, 16^th June

CRIMINAL LAW – Sentence – Rape – Sentence after trial – Mitigating and aggravating factors considered – Prior conviction for manslaughter – Need for punishment and deterrence – Appropriate sentence – 11 years – Nil suspension - Criminal Code Ch. 262; s 347(1).

Papua New Guinea Cases Cited:
Avia Aihi v The State (No. 3 [1982] PNGLR 91
Goli Golu v The State [1979] PNGLR 615
John Aubuku v The State [1987] PNGLR 267
Lawrence Hindemba v The State (1998) SC593
The State v Johannes [2014] N5644
The State v Talad [2014] N5737
The State v Kaudik [1987] PNGLR 201, His Amet J
The State v Kenneth Penias [1994] PNGLR 48

Overseas cases cited:

R v Billam [1986] 1 WLR 349

Counsel:
H. Roalakona, for the State

P. Palek, for the Prisoner

SENTENCE

16^th June, 2016

1. TOLIKEN J. The prisoner, Lenden Malabebe, was convicted after trial on 09^th of May 2016 for one count of rape contrary to Section 347 (1) of the Criminal Code Ch. 262.
   
2. The prisoner requested for a Pre-sentence Report (PSR), hence, the matter was adjourned to these sittings to allow for a report to be filed, which, had been done. On 08^th June, I administered the allocutus and heard submissions on sentence. This is my judgment on sentence.
   
3. The facts of the case are as follows: On the 27^th December 2012, there was a party at Iyavali village, Goodenough Island, Milne Bay Province, which the complainant and accused attended.
   
4. Sometime around 11.00p.m., the complainant was returning from the toilet with a friend, namely, Marena, when they were met by the accused, who had been looking for her daughter Jemma. The accused flashed a torch on the complainant’s face and said “Ah, so you are Naomi?” At that point Marena ran off towards the party area while the complainant ran off towards her house. The accused ran after her and pulled her by her shirt from the back, breaking it. He then grabbed her hand and pulled her across a dry creek. Once there, he forced her to the ground. He grabbed a stone and threatened to kill her with it if she tried to run away. He then told the complainant to start calling for his daughter Jemma.
   
5. The complainant complied and started to call out for Jemma, and they started to look for her. They crossed a bigger creek and once on the other side, the accused told the complainant to drink a can of beer that he had with him, but the complainant refused. The accused then held her tightly and then forced her to drink. After that, he asked her to have sex with him. The complainant refused, so he pulled her trousers and panties down, unzipped his own trousers and then sexually penetrated the complainant with his penis without her consent.
   
6. A medical examination of the complainant was done almost immediately after the assault. It revealed that –
   
   1. The complainant’s clothes were stained with blood.
   2. Complainant’s left side of face was swollen.
   3. Bruises on back and neck.
   4. Blood around the vulva.
   5. Scratches around and private parts.
   6. Hymen was broken.
      
7. Rape simpliciter or simple rape carries a maximum penalty of 15 years imprisonment. However, where the offence is accompanied by circumstances of aggravation, the maximum penalty is life imprisonment, subject to the Court’s discretion to impose a lesser sentence under Section of the Code.
   
8. The maximum penalty is, however, usually reserved for the worst instances of a particular offence. Each case is also treated on an individual basis and a sentence will usually be determined by the circumstances of each case. (Goli Golu v The State [1979] PNGLR 615; Avia Aihi v The State (No. 3 [1982] PNGLR 91)
   
9. I must therefore decide if this case is one that must attract the maximum penalty of 15 years imprisonment. If it is not, then, I must impose a sentence that is appropriate for the circumstances of the case. I may then consider if a suspension of the sentence or any part of it is appropriate.
   
10. The prisoner hails from Iyavali village, Goodenough Island, Milne Bay Province. At the time of the offence he was 43 years old- he is now 48. He is married with 5 children who are all currently in school. Both his parents are deceased. The prisoner was only educated up to Grade 6 and for a time was employed by Northern District Sawmill. The prisoner confessed in his PSR to one prior conviction for manslaughter for which says he was convicted and placed on 2 years good behaviour in 2007. This was not verified by the State but I will accept the prisoner’s confession to that effect.
    
11. On his address to the court on sentence, the prisoner confessed that what he did to the complainant was a disgrace to God and to the society, and that he had also broken the laws of Papua New Guinea. He pleaded for mercy and asked if he could be allowed to return to the village so that he could compensate the complainant for what he did to her. And he promised not to ever re-offend.
    
12. Mr. Palek, for the prisoner conceded that the prisoner had used force to induce the complainant’s consent, but argued that the offence was not accompanied by perversions or gross aggravating factors that would justify the imposition of the maximum penalty. And given his mitigating factors, counsel submitted that an appropriate sentence for him should be 6 – 10 years.
    
13. Mr. Palek also referred to the PSR where the prisoner shifts the blame for his offence to the complainant. There the prisoner reasoned that had the complainant not acted as messenger between his daughter and her boy friend, he would not have committed the offence. The PSR did not make any specific recommendation, but left it instead to the Court to decide an appropriate course for the prisoner.
    
14. Ms. Roalakona, for the State submitted that any mitigating factors in favour of the prisoner are out-weighed by the aggravating factors of the offence, such as the prevalence of the offence, that there was serious personal violence on the complainant and the impact of this assault on her. Counsel submitted therefore that an immediate custodial sentence should be imposed in this case for personal as well as general deterrence. She is of the view that an appropriate sentence should be 10 – 15 years.
    
15. Counsel also referred the Court to the complainant’s Victim Impact Statement, where the complainant speaks of the impact of the offence on her. She says that she was so affected by the rape that she did not want to live in the village and even contemplated suicide. She did not feel safe with the prisoner around and is concerned about her prospects of marriage. She believes that if she were to marry a man from her village, their marriage would not be stable because of this incident. And she says that the only way she can forget her ordeal is to move to another province.
    
16. The maximum penalty for rape was, until the Code was amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No. 27 of 2002), life imprisonment. Parliament in its own wisdom, however, reduced the penalty for simple rape to a mere 15 years. This, seem to be totally incongruent with the increasing incidence of the offence as well as other sexual offences.
    
17. Be that as it may, the Supreme Court had, prior to the amendments, in the case of John Aubuku v The State [1987] PNGLR 267, laid down some sentencing guidelines for the offence of rape. It held that because of the seriousness of the offence, it must be punished by an immediate punitive custodial sentence except where there are substantial exceptional circumstances. The court set a starting point of 5 years where the rape is committed by an adult where there are no aggravating or mitigating factors. Where rape is committed by two or more persons, or where a person breaks into the place where the victim is living, or by a person who stand in a position of responsibility towards the victim, or by a person who abducts and holds the victim captive, the starting point should be 8 years. But where the rape is committed as part of a concerted campaign, or where the accused represents more than an ordinary danger, a sentence of 15 years may be appropriate. 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.
    
18. John Aubuku then discusses the circumstances that may aggravate or mitigate the offence. Aggravating factors may include the use of violence over and above the force necessary to commit rape; use of a weapon to frighten or wound the victim; the rape is repeated; the rape has been carefully planned; the accused has previous convictions for rape or other serious offences of a sexual or violent kind; the victim is subjected to further sexual indignities or perversions; the victim is either very old or very young; the effect upon the victim, whether physical or mental. If one or more of these factors are present the head sentence can be fixed higher than the suggested starting points.
    
19. Relevant mitigating factors may include, a plea of guilty; the age of the defendant; the degree of involvement of the defendant in the planning and carrying into effect of the crime, but do not include the fact that the victim may be considered to have exposed herself to danger by acting imprudently and the previous sexual experience of the victim.
    
20. The prisoner John Aubuku was a policeman who raped a woman who was in police custody was sentenced to 10 years imprisonment. The Supreme Court dismissed his appeal.
    
21. The tariffs in John Aubuku have been overtaken by amendments to the Code, however, the principles enunciated there are still very relevant, but must now be applied in light of the current penalties.
    
22. Rape is a very serious offence and involves not only the violent invasion of the victim’s most intimate privacy, but often leaves victims totally emotionally devastated. It destroys the persons self worth and human dignity. In The State v Kaudik [1987] PNGLR 201, His Amet J (as he then was), cited with approval a statement by the English Court of Appeal in R v Billam [1986] 1 WLR 349 , which tersely describes the effect of rape on victims in the following terms -

“Rape is generally regarded as the most grave of all the sexual offences ...

Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse, associated violence or force and in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy. We do not believe this latter fear should be under-estimated because abortion would usually be available. This is not a choice open to all women and it is not a welcome consequence for any. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value.”

23. Injia J (as he then was) in The State v Kenneth Penias [1994] PNGLR 48 remarked that –
    

“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 ... 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 tranquillity, 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. Therefore, the sentence I will impose on the prisoner is intended to punish him and deter others.”

24. So, do the circumstances of this case warrant the imposition of maximum penalty of 15 years?
    
25. Viewed objectively, it may not necessarily be among the worst, but in all honesty, it cannot by any means be considered trivial. The harm that was done to the complainant, or that which the prisoner ought to have reasonably foreseen as being done to her, and his level of culpability are pretty high. The complainant, like every other victim of rape was psychologically affected. The prisoner used force to subdue her into submission, and in the process the complainant sustained injuries to her face, back and neck and private area. Blood was seen on her vulva and her hymen was torn, suggesting loss virginity. In the circumstances I would therefore set a starting point of 10 years.
    
26. Let me now turn to the prisoner’s mitigating and aggravating factors. First the mitigating factors. The prisoner is a first time offender. He acted alone and did not pre-plan to rape the victim. There was non-legal provocation in that he frustrated by the victim’s action in acting as a go-between, between his daughter and her boyfriend. He acted alone and did not impregnate or infect the victim with and Sexually Transmitted Infection.
    
27. There are, however, aggravating factors against him. He is not a first time offender. He confessed to having been convicted for one count of manslaughter for which he was placed on good behaviour. While manslaughter is not a sexual offence, and hence, may not be relevant in the strict sense, it is, nonetheless, a crime of violence. The prisoner used actual violence against the victim and the victim suffered physical injuries to her face, back and neck and private area. Though the violence and the injuries may seem moderate, the prisoner used more violence than what was necessary to subdue the victim. Above all that, the victim also suffered emotionally as evident from her Victim Impact Statement. Finally this is a very prevalent offence.
    
28. As the Supreme Court said in John Aubuku, this case calls for an immediate custodial sentence. I have set a starting point of 10 years. What then should be an appropriate head sentence and what should it serve to achieve?
    
29. The purpose of sentencing for any sexual offence should firstly be for punishment and secondly for personal and general deterrence.
    
30. This is a case where the prisoner had displayed total disregard for the dignity of victim. He dragged her physically into a darkened place, across a couple of creeks and then raped her. It does not matter to me that the prisoner was frustrated with the victim because she was carrying messages between his daughter and her boyfriend. There are better ways of sorting out such problem.
    
31. In any case he should have taken up his concerns with his own daughter and her boyfriend. Instead he turned on the victim and sexually violated her violently. The prisoner claims to be one of Jehovah’s witnesses but his behaviour on the night in question hardly reflects the faith of this religious group who strive to live their lives strictly by biblical prescription. If he is indeed a Witness then, he knows that he has to pay the price for his despicable behaviour.
    
32. This offence cannot be condoned. There is too much violence against women in almost all echelons of society. Every day a woman or a girl is either raped, molested, or even killed. And this atrocity against our women does not seem to abate despite the best efforts by the government and non-government agencies. Hence, an appropriate sentence must be imposed to exact respect for the rights and dignity of women and respect for the law out of our men-folk.
    
33. Both counsel cited several cases to me, but most if not all of these are cases involving circumstances of aggravation. A case which bears some similarity to the instant case, though, because of the use of threat of violence would be Lawrence Hindemba v The State (1998) SC593. There the prisoner appealed against his sentence of 10 years for raping a 10 year old girl. The appellant had grabbed the victim as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let the victim go when the victim’s sister intervened to free her and had sexual intercourse with the victim by force. During the encounter the victim was in immense pain and her vagina bled. The doctor’s report confirmed forced sexual intercourse took place with visible injuries to her vagina. The Supreme Court dismissed the appeal and increased the sentence to 15 years. The appellant there was sentenced under the old provision, but what stands out from that case is that the Supreme Court will increase a sentence if circumstances want it.
    
34. In The State v Johannes [2014] N5644, the offender was found guilty of one count of rape under Section 347(1) of the Code. He and the victim were of a similar age (early 30s) and were well known to each other, being neighbours. The offender had grabbed the victim as she was walking along a road, dragged her into the bush and sexually penetrated her without her consent. His Honour Canning J. set a starting point of 10 years. The mitigating factors were that offender acted alone, there was no torture, no confinement, no STD transmitted, no other indignity, no further trouble, first-time offender, not a large age gap. Aggravating factors: penile penetration, no consent, no provocation, emotional impact on victim, does not accept responsibility, no remorse, not a youthful offender. A head sentence of 12 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.
    
35. The State v Talad [2014] N5737), the offender was found guilty of one count of rape under Section 347(1) of the Code. The offender was aged 25 at the time and the victim, who had a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who had gone to a bushy area close to their house to bathe. There, he dragged her to another place and penetrated her vagina with his penis, without her consent. A starting point of 10 years was fixed. The court took into account that offender acted alone, there was no torture, no confinement, no sexually transmitted disease was transmitted, no other indignity, no further trouble, the offender was first-time offender, there was not a not a large age gap and the offence was remorseful. The aggravating factors were that this was a case of penile penetration, there was no provocation, the emotional impact on victim and breach of trust. The offender was sentenced to 11 years less time in custody. None of the sentence was suspended.
    
36. The sentence in the instant case, I think, should be comparable to those in The State v Johanes and The State v Talad (supra). So, having considered the prisoners mitigating and aggravating factors, and bearing in mind the need for punishment and deterrence for this type of offence, I think that an appropriate sentence should be 11 years imprisonment.
    
37. I therefore sentence the prisoner, Lenden Malabebe, to 11 years imprisonment. The period he spent in pre-trial custody (3 years, 5 months and 2 weeks) is deducted.
    
38. This is not a case that is appropriate for suspension, hence, none of the resultant sentence will be suspend. The prisoner is to serve his sentence at Giligili Corrective Institution.

Orders accordingly.
_________________________________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner