State v Kera (No.2) [2016] PGNC 325; N6540 (24 August 2016)

N6540

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.183 OF 2014

THE STATE

V

ULELO KERA (N0.2)

Kokopo: Lenalia, J

2016: 18^th& 24^thAugust

CRIMINAL LAW– Rape of two biological daughters –Sentence after finding of guilty – Sentence – Factors for consideration – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2)

CRIMINAL LAW – Sentence after finding of guilty for six (6) counts of rape, one (1) count of indecent act, one (1) count of assault – Both victims daughters of accused – Charges involved serious aggravating circumstances including breach of trust, authority and dependency.

Cases Cited:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Ian Napolean Setep v The State (2001) SC666
John Aubuku-v-The State [1987] PNGLR 267
Lawrence Indemba v The State (1998) SC593
Robert Solomon v The State (2007) SC871
The State v Peter Kaudik [1987] PNGLR 201
The State v Kenneth Penias [1994] PNGLR 48
The State-v-Penias Moke (No.2) (2004) N2635
The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569
The State v Luke Sitban (11.6.04) N2566
The State v Philip Komo (19.11.09) N3816
The State v Jerome Deila (20.8.09) N3840
The State v Steven Tari Nangimon Garasai (2010) N4155

Other case cited

R v Peter John Kastercum (1972) 56 Cr App R 296

Counsel:

Mr. L. Rangan, for State
Mr. P. Yange, for Accused

25^th August, 2016

1. LENALIA, J: The prisoner was charged with eight (8) counts of rape, two counts of indecent acts, one of sexual touching, and two (2) counts of assaults contrary to and s.347(2),s.349 and s.335 of the Criminal Code. He pleaded not guilty and a trial was conducted during which the two victims came to court and testified publicly about what the prisoner, their biological father did to them.

2. He was found guilty of six (6) counts of rape, one for indecent act, and one for common assault. Five of those rape charges were committed against victim J. K. (Joy Kera) and one against R. K (Rachael Kera). Out of the total number of thirteen charges, he was found guilty of eight counts.

Addresses on Sentence

3. On 18^th this month, the court heard parties on their addresses on what should be the appropriate penalty. On his last say, the prisoner said sorry to his lawyer and asked for mercy because he is now 53 years old now. He said sorry to the two victims and said, his children have accused him of killing their mother that is his wife. He expressed sorrow to his other children. He asked the court to take into account, the fact that he is from another Province.

4. Mr. Yange submitted that the prisoner has been found guilty of serious charges because, the offences were committed in the family home. Counsel asked the court to take into account the offender has accepted the blame and expressed remorse for what he did to his two biological daughters.

5. Mr. Rangan addressed the court on the seriousness of the charges. Counsel submitted on what he referred to page 17 of the judgment on verdict and said, it could have been a typing error on Count 11. On that page, the court recorded “found guilty & convicted”. I will refer to this later. He asked the court to consider compensation because; the victims are the prisoner’s biological daughters.

Application of Law

6. The National Court and Supreme Court Judges have often expressed great concern over the crime of rape and other sexual offences where men taking the advantage on the weaker members of our societies like on this case. Obviously gender violence must be addressed and contained somehow. The Parliament has legislated and the courts must treat rape and similar cases very seriously. An example of such concern can be found in The State v Kaudik [1987] PNGLR 201 where, Amet J, (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences where the Committee said:

“Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value.”

7. In the National Court case of The State v Kenneth Penias [1994] PNGLR 48, Injia J (as he then was) expressed similar concern where His Honour said:

“Rape constitutes an invasion of the most intimate part of a women’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 or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, 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.”

8. In Lawrence Indemba v The State (1998) SC593, the Supreme Court there expressed very serious concern about the crime of rape since rape is so prevalent and so violent.

“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(1997)SC519, 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”.

9. The crimes that the prisoner committed are very serious indeed. First, the victims are the offenders own biological daughters. There was breach of trust, authority or dependency. The closer the relationship is the more serious breach of trust becomes: The State-v-Penias Moke (No.2) (2004) N2635. This is the reason why the law provides that in an ordinary rape without aggravations, the maximum penalty is 15 years.

10. But where the crime of rape is committed with circumstances of aggravations as defined by Subsection (2) of the section charged and pursuant to the definition in s.347A (2) (a)-(k) of the Code, on circumstances of aggravations, offenders must prepare to meet life imprisonment: The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569.

11. In The State v Philip Komo (19.11.09) N3816, the offender was charged with aggravated rape of his step-daughter breaching the relationship of trust, authority or dependency. The case went through a trial and the offender was found guilty. He was sentenced to 18 years imprisonment. 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. The offender was sentenced to 15 years imprisonment.

12. Up to date, the Supreme Court has not set any specific sentencing range for the crime of rape with serious aggravations. However it is clear from decisions on appeals in cases of rape the said Court keeps saying that offences like rape and other sexual offences with aggravations, ought to be met by imposition of high penalties. For instance, in Robert Solomon v The State (2007) SC871 the Supreme Court reduced the sentence of 20 years each on 3 counts of aggravated rape, by 12 years resulting in sentence of 8 years each which were served consecutively making a total of 24 years.

13. The victim in that case was the prisoner’s half-sister. She was subjected to rape and sexual torment at the offender’s hands for over 5 years. The relationship resulted in her getting pregnant and giving birth to a child. He treated her as a sex slave and she was a prisoner in her own home.

14. The victim of that case was kept at such treatment with torment until some help came from outsiders then thereafter she was able to run away. The offender in that case was charged for sexual penetration with circumstances of aggravation.

15. While the guidelines on starting points in the above cases may now be regarded as out of date, especially in view of the amendments made to the Criminal Code in 2002, the regime of aggravating and mitigating circumstances remain relevant consideration. I note and adopt the view expressed by Kandakasi J in The State v Luke Sitban (11.6.04) N2566, which was followed by Cannings J in The State v Joe Sime (CR1078 of 2004), that the proper starting point for cases of aggravated rape is 15 years.
16. Rape is a serious crime and the maximum penalty provided under s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 is 15 years imprisonment. When rape is committed with circumstances of aggravations, Subsection (2) of the same section states that where an offence of rape is committed with circumstances of aggravation, an accused person could be liable to life imprisonment. The court has discretion under s.19 of the Criminal Code to impose a term lower than the both maximums depending on circumstances and provisions under which an offender is charged. This section states:

“347. DEFENITION 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.”

17. On the above definition, Subsection (2) refers to “circumstances of aggravations”. Those are factors which make the offence of rape serious when it is committed against a victim. Further definition of aggravating circumstances is contained s.1 of the Criminal Code 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.”

18. In addition to the above definitions, the term “circumstances of aggravations “can also be found in s.349A (a) (i) of the Criminal Code as amended. 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).”

19. The prisoner’s case falls under Subsection (e)(f)and (h)of the above section. He committed the crimes of rape whilst having custody of the two young girls in their family home at the Baliora Police Barracks, Kokopo. The court notes that, there were threats issued against the two victims.

20. The crimes were committed in the prisoner’s house and because, there was fear of any harm to them, they kept quiet because according to the evidence of the two victims, if they raised an alarm, the prisoner would come and attack them. It was established on trial that the victims submitted to the abuse because of fear of harm, threats and intimidations by the prisoner. Section 347A (1) -(3) of the Criminal Code Amended defines consent in the following terms:

(1) For purposes of this Part, “consent” means free and voluntary agreement.
(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:-

• (a) the person submits to the act because of the use of violence or force on that person or someone else; or
• (b) the person submits because of the threats or intimidation against that person or someone else; or
• (c) the person submits because of fear of harm to that person or to someone else; or
• (d) the person submits because he is unlawfully detained; or
• (e) the person is asleep, unconscious or so affected by alcohol or other drug so as to be incapable of freely consenting; or
• (f) the person is incapable on understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
• (g) the person is mistaken about the sexual nature of the act or the identity of the person; or
• (h) the person mistakenly believes that the act is for medical or hygienic purposes; or
• (i) the accused induces the person to engage in the activity by abusing a position of trust, power of authority; or
• (j) the person having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
• (k) the agreement is expressed by words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following :-

• (a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and
• (b) a person is not to be regarded as having consented to a sexual act just because –
  • (i) he did not physically resist; or
  • (ii) reckless or willful blindness; or
  • (iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.”

(Emphasis added).

21. Judges of this Court have repeatedly expressed various sentiments and concerns about the crime of rape where it is committed with violence and breach of trust against the will and non-consent of victims of rape. The crime of rape is so serious such that to deter this crime, deterrent sentences must be imposed due to factors referred to in the above cases like psychological trauma caused to victims of sexual abuse.

22. Young girls are so vulnerable to sexual crimes. The victims of this case were and are supposed to be at the mercy of their father whom the law expects to be their protectors. Instead, people like this offender if I can put what I want to say into PNG terms, “em i tanim pellet” (he turned the plate upside down) against his own seeds and committed these heinous crimes upon his own two biological daughters. Where is love and respect for children and their mother? The evidence of the two complainants revealed some uninteresting developments of what occurred between the three of you. The following are aggravating circumstances in these cases:

➢ Prisoner was a Senior Constable of the Police Force.
➢ Both complainants biological daughters of prisoner,
➢ You commenced the abuse against the victim J. K even while their mother was still alive.
➢ At times sexual intercourse took place in full view of one of the victims watching.
➢ Rape was repeated against J. K.
➢ Threats of violence used to both victims.
➢ Serious breach of trust, authority and dependency.
➢ The prisoner contained the victims in house not allowing them to move freely.
➢ Did not allow the complainants to continue their education.
➢ Out of such sexual abuse, J. K got pregnant.
➢ J. K gave birth to a child.
➢ In case of J. K, she revealed in evidence that, the accused had even tried to kill her because of her pregnancy.
➢

23. Since the offence of rape is so prevalent, the Courts must continue to impose sentences that will justify the pain, suffering and psychological traumas and damage caused to infant children or teenage victims suffered, and are suffering and will continue to suffer. I agree with comments by various Judges of this Court on the concern that is usually raised by Judges that whatever terms of years are imposed by the Courts upon any offenders cannot be measured against the pain, suffering and trauma suffered by victims of any particular case.

24. The prisoner being a policeman must realize that you caused psychological and physical damage to both complainants. The two have suffered much and will continue to suffer and endure until they grow old. Sexual abuse whether by rape or other sexual offences under the Criminal Code is so prevalent indeed.

25. Due to the rise in sexual crimes, it is so prevalent, that, immediate punitive sentences must be considered. Judges have been imposing heavy penalties in rape cases, and sexual abuse with breach of trust but however such penalties do not seem to deter anyone: John Aubuku-v-The State [1987] PNGLR 267 and see also Lawrence Hindemba-v-The State (1998) SC 593.

26. The offences committed by the prisoner did not arise from one transaction. It was a “continuing episode”. The principle on “one transaction or continuing episode” rule states that:

“When a number of offences arise out on ‘one transaction or continuing episode’ any terms of imprisonment are usually made concurrent, but not necessarily so.”

(See R v Peter John Kastercum (1972) 56 Cr App R 296, Ian Napoleon Setep v The State (2001) SC666 or The State v Steven Tari Nangimon Garasai (2010) N4155, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205).

27. Having considered all addresses on sentence by the prisoner, his lawyer and that by the prosecution counsel, I consider consecutive and concurrent sentences should be imposed. Before that, Mr. Rangan on his address on sentence alluded to the fact that, there may have been a typo error on the finding for Count 11. That count was a finding of guilty for indecent acts where the prisoner peeped into the toilet while victim R. K was releasing herself. Having said that the prisoner is sentence in the following terms:

Count 1. He is sentence to 12 years imprisonment.

Count 2. He is sentence to 10 years, concurrent with Count 1.

Count 5. Sentence to 12 years consecutive upon Count 1= 24 years

Count 6.Sentence to 9 years concurrent upon Count 5.

Count 7.Sentence to 10 years concurrent on Count 5.

Count 8. Sentenced to 12 years cumulative on Count 5 = 36 years.

Count 11. Sentenced to 1 year, concurrently upon Count 8.

Count 13. Sentenced to 1 year, consecutive on Count 8 = 37 years.

28. The total number of years the prisoner will serve is 37 years. The court suspends 15 years on condition that after he serves the balance he shall be of good behaviour for 2 years. The total balance sentence the offender shall serve is 22 years. The custody period shall be deducted and he shall serve the balance.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Islands Legal Services : Lawyer for the Accused