State v Weiki [2017] PGNC 205; N6871 (22 June 2017)

N6871

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 872 OF 2014

THE STATE

V

MANUEL WEIKI
Kimbe :Miviri AJ
2017 :16^th & 22^nd June

CRIMINAL LAW-PRACTISE & PROCEDURE- Trial-sexual penetration without consent-denial-alibi no notice-effect of-victim sister in law-no medical report-evidence of husband recent complaint-conduct of accused prior-credibility who to believe-belated alibi amounting to corroboration- Section 352A CCA Corrobation-guilty sexual penetration without consent.

Facts

Prisoner armed with a bush knife came from the back as victim his sister in law was weeding her peanut garden. He threatened to kill or injure her with the bush knife in the presence of her six year old daughter, dragged her into the bushes nearby. Removed her clothes and had sexual intercourse against her will by forcefully penetrating her vagina with his penis and ran away.

Held

There was a serious breach of trust as the victim was his sister in law (wife of his small brother from the same parents). The prisoner was sentenced to a term of 14 years IHL minus time in pre-trial custody.

Cases cited:
Aubuku v The State [1987] PNGLR 267
Hindemba v The State [1998] SC593
Manu Kovi vs. The State [2005] SC789
Meaoa v The State [1996] PNGLR 280
SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996),
State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24^th July 1998.
State v Yali [2006] N2989
Waim v The State [1995] PNGLR 187

Counsel:
D.Kuvi, for the State

B. Popeu, for the Defendant

SENTENCE

16^th August, 2017

1. MIVIRI AJ: This is the sentence of the court against the elder brother who committed rape upon wife of his small brother. On the 23^rd June 2017 I returned a guilty verdict after trial. Application was for a pre-sentence report by defence counsel to assist in the determination of an appropriate sentence. Which report has been considered to deliver this sentence.
   

Short facts

2. In broad day light on the 23^rd March 2014 at 9.00am in the morning Julie James had gone to her peanut garden to weed it accompanied by her 6 year old daughter. Manuel Weiki the elder brother of her husband James armed with a bush knife came and threatened her with it. She submitted in fear where he dragged her to the bushes nearby, removed her trousers then he opened her legs inserted his penis into her vagina, had sexual intercourse with her and ran away.
   

Issue

3. What is an appropriate sentence here against the Prisoner?

Law

4. Section 347 of the Criminal Code Act prescribes subject to Subsection (2), imprisonment for 15 years. And under subsection (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. The indictment pleads circumstances of aggravation that the Prisoner used a bush knife threatening her. Prisoner here can be sentenced to the maximum of life years imprisonment.
   
5. This is a very wide sentencing discretion that is given to the court which exercise is dictated by drawing a delicate balance between on the one hand, the aggravating features of the case, and on the other the mitigating features including any other special or extenuating circumstances of the case. In practical application if I were to go below 15 years I would be treating this rape as simplicitor and that would be against the Indictment which has pleaded circumstances of aggravation hence by literal reading of section 347 (1) (2) I would fall into error in law. But in both cases it is my reading that there is subjection to section 19 of the Code. It is not an automatic imposition but gradual twining down or up dictated by the facts and circumstances peculiar. The Code is not read in isolation but as one. Likened to Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) the sentences for the different offences of homicide are not the same in all respects one from the other. There ought to be differentiation to reflect the different offences respectively relatively under the Code. Here similar analogy of section 347 but differentiated on the basis of aggravation. This is to be contrasted with section 348 attempted rape that draws the penalty imprisonment for a term not exceeding 14 years.
   
6. Minimum penalty legislation has been considered in SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), where the court held that the power to suspend sentences was not fettered even though a minimum penalty was prescribed. It was considering the minimum penalty of 5 years for escaping. In the circumstances of the present case simple rape draws 15 years IHL. Here because of the plea of circumstances of aggravation in the indictment the maximum is life imprisonment.
   
7. Guidelines for rape are set out in Aubuku v The State [1987] PGSC 3; [1987] PNGLR 267 (29 July 1987) applicable and good law. Given the peculiar facts circumstances of the present case I apply and determine the following as appropriate and applicable here :

“(1) the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances;

(2) for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point;

(3) 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 position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years;

(4) 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;

(5) 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 not be inappropriate;

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point;

(a) violence over and above the force necessary to commit rape;

(b) use of a weapon to frighten or wound the victim;

(c) the rape is repeated;

(d) the rape has been carefully planned;

(e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind;

(f) the victim is subjected to further sexual indignities or perversions;

(g) the victim is either very old or very young;

(h) the effect upon the victim, whether physical or mental.

(7) matters which may be relevant to mitigation include:

(a) a plea of guilty;

(b) the age of the defendant; and

(c) the degree of involvement of the defendant in the planning and carrying into effect of the crime;

but do not include:

(d) the fact that the victim may be considered to have exposed herself to danger by acting imprudently;

and

(e) the previous sexual experience of the victim.”

Aggravation

8. Prisoner is primarily the principle offender and the victim had no blame for what was perpetrated upon her. And therefore an immediate custodial term is envisaged. There are no extenuating circumstances she was simply making a living. Prominently she was the wife of his blood brother which was a very serious breach of trust. He was the elder brother. He used a weapon, a bush knife to get her to submit to his demands. It was committed in view of her 6 year old daughter his niece. It was a trial where she was a married woman, and was made to live out what happened to her in an open public court. It was a serious matter that split the family. Further his criminality attacked the sacredness of the marriage of his small brother to the victim. No doubt the trust and love between the husband James Weiki and his wife the victim has been affected. That there will be spasms which will come along their lives because of this matter that has touched protruded into their intimacy. It will affect the family as a whole, the father and the other siblings. It was evident that there was preplanning as it was no coincidence that he was armed with a bush knife and fronted her in the garden with her 6 year old daughter when both were alone away from the family home where they all were resident. This fact also contributed in the way that he planned and executed the crime.
   
9. I make these observations in the light of the pre-sentence report that has been filed sourced notably from the defendant Manuel Weiki, his elder brother Pomat Weiki, and their father Weiki Tabinyualah. It is not a balanced presentence report and cannot be the basis upon which sentence is determined against the prisoner. Because they say the crime was never committed which is challenging the decision of the court. And that it was a make up to get the Prisoner out so that James Weiki and his wife victim would enjoy the block of their father alone. Sadly this evidence was never led in the trial to the required level in law for the court to base upon. As it was not there it could not be the basis to attack the decision of the court. What should have been concentrated upon here were mitigation and any special circumstances for consideration in favour of the Prisoner. This is not the avenue so any remarks in the probation report against will not deter the court from doings its duty according to law. A daring rape perpetrated on an immediate relative in broad day unmasked unconcealed preparedness to defy the law at all costs. There is no mercy shown in the execution or second thought in the rape. Not even the presence of the young child deterred. Prisoner was heightened with self-gratification more than anything else to him she was just an object to be treated for his pleasure. After he succumbed did he go.
   
10. There is nothing of relevance and significance that is sourced in the presentence report placed before me. The recommendation made as suitable for probation fails to consider that the Prisoner is currently serving sentence of 3 years imposed by this court presided by Justice Cannings on the 23^rd September 2016 for grievous bodily harm committed upon the principle state witness here James Weiki in this proceedings whose wife is the victim of the rape here. This becomes a prior conviction upon the prisoner and probation would not be in order in view of this. The community history of the prisoner is not sourced from leaders in the community, for example the village court magistrate there, the councillor, a pastor or church leader the primary source is the prisoner, his elder brother Pomat Weiki and their father Weiki Tabinyualah. For my purpose here I will not rely on that pre-sentence report as it is not a balanced report. There is no independent verification of what is asserted to by the Prisoner his father and brother. What is borne out by the presentence report and confirmed from court records is the prisoner is serving time for attacking the principle state witness whose wife he committed rape upon. He is not a first time offender. This will make him a repeat offender. Which fact will be considered in the sentence.
    

Mitigation

11. The Prisoner was married but wife is deceased leaving behind their three children who are with the grand parents in law. He is educated to grade 6 Galai Primary School in 1991. Applying the guidelines of Aubuku (supra) here the following factors mitigate, there is no violence over and above used here to attain the crime. There is no medical report before me as to any injury upon the victim. Prisoner does not have a previous conviction for a like offence. He is an adult male aged 28 years old. The offence was not repeated. The complainant is a married woman the wife of his small biological brother which is not mitigating but aggravating against him.
    
12. To work out contrast in sentence I am drawn to State v Yali [2006] N2989 the prisoner had committed rape upon the victim 17 years old small sister of his de facto wife. A trial was run, he was a Member of Parliament. No aggravation was charged and the court imposed 10 years. In this regard this court has on the occasions in cases of this nature that have come before it imposed heavy sentences to reflect and the Supreme court has on the appeals that have been lodged against confirmed and upheld the sentences imposed, Meaoa v The State [1996] PNGLR 280 the Supreme court stressed the vulnerability of the 12 year old girl from the mountain who did not know how to swim and whose vulnerability was taken advantage of by the appellant there.
    
13. You took advantage of your sister in law whilst she was in the garden with her 6 year old daughter who was your niece. In Meaoa (supra) the Supreme Court confirmed the 14 years IHL that was imposed. Not only confirming the sentences imposed the Supreme Court has increased sentences where this court has imposed sentences not fitting of the facts and circumstances as in Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) the 10 years on a guilty plea to rape of a 10 year old school girl on her way home after school grabbed by the appellant carried into bushes nearby threatened with a pocket knife sexually penetrated causing injuries to her vagina. He was a first offender. He appealed against the 10 years imposed by the National Court to the Supreme Court arguing that he had pleaded guilty and was a first time offender and the sentence was high. The Supreme Court viewed the contrary and used its powers to increase the sentence to 15 years IHL.
    
14. You were very cunning and determined to commit the offence. You did not cover your face but were armed with a bush knife as you set upon the victim in broad day light. Your actions did not take account of the fact that she was your sister in law. In Meaoa (supra), Hindemba (supra) and James Yali (supra), the offence is as prevalent as ever. The 14 years IHL, 15 years were imposed in 1996 and 1998 and 2006 the offence is prevalent. In your favour there is no medical report confirming the extent of the injuries that she has received: Waim, The State v [1995] PNGLR 187. But the fact is you acted as was the case in Hindemba (supra) there was nothing that mattered except your self-gratification. As in that case you were armed with a bush knife threatening your own blood sister in law to submit to your lust. You had no thoughts of your younger brother her husband, even the presence of your 6 year old niece their child did not prevent you or deter you from the offence. You made her to tell her story in front of a public court a public hearing. James Yali (supra) was decided in 2006; it is now 11 years since the offence of rape is still being committed without respect for women as equal before the law. Attack on the family in this manner is a very serious matter as the family is the basic unit of society. Its’ protection is vital to ensuring a strong vibrant community.
    
15. I ask myself is there any extenuating or special circumstances to impose a sentence other than a custodial term? I determine after due consideration of all matters set out above and apparent and identifiable that proportionate to the facts and circumstances here the aggravating factors outweigh the mitigating features of the case. There are no extenuating or special circumstances to sway otherwise than a custodial sentence. I am mindful of the fact that he is serving 3 years imposed by this court presided by Justice Cannings on the 23^rd September 2016 for grievous bodily harm committed upon the principle state witness here James Weiki in this proceedings whose wife is the victim of the rape here. That is evidence of defiance of the law on his part without second thought. It is a separate offence in time date set apart and so will not affect the sentence here.
    
16. Accordingly the sentence of the court upon you for the crime of rape is 14 years IHL and I so impose that upon you minus any time in custody.
    

Ordered Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant