State v Yauramo [2017] PGNC 236; N6899 (11 September 2017)

N6899

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1019 OF 2011

THE STATE

V

LIBERIUS YAURAMO

Kimbe : Miviri AJ

2017 : 11^th September

CRIMINAL LAW - Practise & Procedure-plea-two counts of Rape-separate offences by time date-sentences cumulative-totality principle

Facts

Prisoner threatened victim his adopted daughter with a bush knife forced her into bushes nearby inserted his penis into her vagina and had sexual intercourse with her.

Five days later threatened to chop her with a bush knife forced her into the house where he forced his penis into her vagina and had sexual intercourse with her.

Held

Two separate offences by time and date each with sentence of its own. Cumulative sentences days apart separate offences not related to each other. Considering principles of Totality 16 years IHL minus time in remand.

Cases cited
Aubuku v The State [1987] PNGLR 267
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Hindemba v The State [1998] SC593
In the State v Paulus [2002] N2241
Meaoa v The State [1996] PNGLR 280
Mase and John v The State [1991] PNGLR 88
Neheya v The State [1988-89] PNGLR 175
Public Prosecutor v Sidney Kerua [1985] PNGLR 85
State v Yali [2006] N2989

Counsel:
D. Kuvi, for the State

D. Kari, for the Defendant

SENTENCE

11^th September, 2017

1. MIVIRI AJ: This is the sentence of an adopted father who pleaded guilty to two counts of sexual penetration of the victim, his adopted daughter.
   

Short facts

2. Prisoner went to look for his wife accompanied by the victim and another small daughter on the 9^th July 2011. He told the small daughter to wash in the creek whilst he sent the victim to look for and pick greens for the family meal. He threatened her with a bush knife got her into bushes nearby where he inserted his penis into her vagina and had sexual intercourse with her.
   
3. Whilst alone at home with the victim and other children on the 14^th July 2011, Prisoner threatened to chop her with a bush knife forced her into the house where he penetrated her by inserting his penis into her vagina and had sexual intercourse with her five days after the first act.
   

Law

4. Section 347 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 does not plead circumstances of aggravation that the Prisoner used a bush knife threatening her. Which means the prisoner is looking at 15 years maximum in each case.
   

Honest genuine plea

5. Your plea is honest and genuine because in your record of interview you did not initially admit to Police. By it you have saved your adopted daughter the embarrassment of coming before the court before strangers and to tell reliving the offence. She was 15 years old a grade 5 student at Ruango Primary School 2011 confirmed by a letter dated 24^th August 2011 under hand of Michael Roka the headmaster. You are a 46 year old man her adopted father. She was your daughter. Medical examination dated the 15^th July 2011 established that her hymen was absent and there was inflammation around the vaginal orifice. Doctor Sanoh Tahon of Outpatient accident and emergency department Kimbe General Hospital concluded Sexual abuse and penetration without consent. These are the physical examination made there is nothing stating as to whether or not the victim has suffered mentally.
   
6. A presentence report together with a means assessment report both dated 17^th July 2017 was filed before me following an application made earlier. I take into account the various matters that are referred like family background marital status, educational background, community history, concerns of the spouse and children as to the incarceration of their father who is the Prisoner. It is a very serious breach of trust attacking the fundamentals of family as a basic unit of society. The reasons to commit the offence are nothing other than lust above all else. You looked after her for 8 years which no doubt should have strengthened the bond between you as the father and her as daughter. And should have prevented you from committing that offence upon her twice. You had no hesitation to commit the offence initially and then five days later again. Your actions show clearly what was on your mind which is lust. You treated her like a sex object for your pleasure as you saw fit. Your wife must be commended for the actions that she took in the face of your violence exerted upon her. She was a very brave woman to stand up and to defy you and saved the girl victim from further and continued sexual abuse. What would have become of the victim if you were not stopped by your wife? Case law before this court has demonstrated very aggravated indignities of sexual perversions leading to pregnancies Neheya, The State v [1988-89] PNGLR 175.
   
7. The recommendation by the Probation report fails miserably to consider the seriousness of the offence. It is repeated against the victim without concern for the welfare well- being of the family. Prisoner had no excuse he had a wife and could have resorted to her to satisfy his sexual urges. He does not have any excuse at all for the offence that he committed. He is not a 15, 16, 17 or 18 year old experimenting in life. He is a grown man who ought to know what is right and wrong. It should be he who should be leading his daughter as to what is right and wrong, not to abuse and sexually violate her as he did. Her educational advancement has been impaired by his action.
   
8. The crime of Rape is a very serious invasion of privacy. It involves intimacy only right in consenting adults or persons such as in matrimony. To be committed as depicted here degrades a woman in this case the adopted daughter to nothing less than an object for sexual gratification by the father. She is vulnerable and her youthfulness and innocence has been exploited by her adopted father. When perpetrated as here where the daughter looks to the defendant as the father figure it dismantles the core family union and is very serious when it is the basic unit of society, the cornerstone of society. To use violence upon the mother who runs away as any normal human being would do in the face of domestic violence over and above accepted norm in society and then to use it as a stepping stone to perpetrate a violent degrading sexual violation of the adopted daughter is clearly evidence of one who has a sick mind. A mind invested with evil clearly evident by the second attack just five days apart upon the victim calls for stern and punitive action in sentencing against the father prisoner.
   
9. If the actions are carefully looked at it is as if the Prisoner is running a scheme where the first ploy is to get the wife out of the picture and then to arm himself with a bush knife to threaten and to cause fear and intimidation into the mind of the victim and to lure by skilful and tactful violence to attain sexual gratification for himself at the expense and the misery of the daughter. It is a very serious breach of trust and a very aggravating feature of the case that must not be brushed aside politely but visited with stern deterrent and punitive sentence reflecting the values that society through the law places in the rights and dignity of our women folk in this case our daughters. I would be doing injustice to ignore the level of violence here. It far outweighs the mitigation and proportionate to it would be nothing other than a strong punitive and custodial term.
   

Mitigation

10. The prisoner is 46 years old educated to grade 6 at Balsaki originally from Dumbit, Maprik East Sepik Province. He is married with 6 natural children including the victim as adopted daughter. According to the presentence report he looked after the victim for 8 years and was demanding compensation for looking after her. Naturally she is the daughter of the brother of his wife. He depends for his up keep on his 2 hectare oil palm block from which he earns up to K1, 500 and also sale of garden food. His brother in law who is the natural father of the victim has demanded K10, 000 compensation for the breach clearly not on par with the Criminal Compensation Act.
    
11. In Aubuku v The State [1987] PNGLR 267, the Supreme Court endeavoured to set out guidelines applicable to assist in the determination, appropriation and proportioning of an appropriate sentence in given cases of rape. It is a 30 year old case but the guidelines it sets out are good and practicable, It stated:

“(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.”

12. The facts and circumstances of the offence calls for an immediate custodial term applicable. Had the mother not disclosed immediately there and then the matter would have grown a life and existence of its own, devastating each side of the family. In State v Yali [2006] N2989, the prisoner had committed rape upon the victim who is the 17 years old small sister of his de facto wife. A trial was run. The prisoner 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. In Meaoa (supra) the Supreme Court confirmed the 14 years IHL that was imposed. Not only has the Supreme Court confirmed the sentences imposed but has also increased it where this court has imposed sentences not proportionate to the facts and circumstances as in Hindemba v The State [1998] SC593 the 10 years on a guilty plea to rape of a 10 year old school girl on her way home after school who was grabbed by the appellant, carried into bushes nearby, threatened with a pocket knife and sexually penetrated causing injuries to her vagina. He was a first time 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 persisted on each case without second thoughts that she was your adopted daughter that you had looked after for 8 years. It is a very prevalent offence. 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 adopted daughter to submit to your lust. Your guilty plea is genuine and considerate that you know you have committed a very serious wrong. It is an attack on the family a very serious matter as the family is the basic unit of society its protection is vital to ensuring a strong vibrant community.
    
15. Each offence is separated by time date and set apart one from the other. And sentencing will be in that regard as in Mase and John v The State [1991] PNGLR 88 where armed robbery abduction and rape was considered whether individual sentences were appropriate or cumulative and the totality principle. Mase (supra) followed the earlier cases of Public Prosecutor v Sidney Kerua [1985] PNGLR 85 and Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214 where 18 years was reduced to 14 years IHL.
    
16. I determine that the offences are separate in time, date and for the purposes of sentencing will draw their individual sentences upon you separately one from the other. And both will be cumulative not concurrent as in Mase (supra). The sentence will reflect the age of your daughter 15 years old and you 46 years old, a very large gap. The serious breach of trust between adopted father and daughter in addition to the threat and use of a bush knife. But a significant factor will be your guilty plea which will show out in the sentence drawn for each offence. Which would have been a lot different if a trial was run? Earlier this week State v Manuel Weiki (2017) N6871, I sentenced the Prisoner to 14 years IHL after trial. He was armed with a bush knife in the garden and threatened his sister in law and penetrated her vagina and had sexual intercourse with her. Here, the prisoner has pleaded guilty to the two charges of rape.
    
17. In the State v Paulus [2002] N2241, the prisoner pretended to help the victim to help her to find her husband. They went from one location to another. At a location where she went to relieve her bladder he went in after her and tried to rape her. She put up a fight making it impossible for him to penetrate her. He took out a knife and stabbed her on her back. He pleaded guilty and the court sentenced him to 9 years IHL for attempted rape. The range given here would be between a minimum of 9 years and 12 years IHL on each count but reduced on the basis of Totality.
    
18. Accordingly I adjudge and order as follows, for the rape committed on the victim on the 9^th July 2011 you are sentenced to 8 years IHL.
    
19. For the rape committed on the victim on the 14^th July 2011 you are sentenced to 8 years IHL. Both sentences are to be served cumulatively giving the total sentence of 16 years IHL. In accordance with the principles of totality I consider that the aggregate effect is proportionate to the general circumstances of the offence, particulars which I have discussed and set out above. To reduce further would be disproportionate to the facts and circumstances of the case. I deduct the time he has spent on remand awaiting from the head sentence.

Orders Accordingly.

_____________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant