State v Kerenga [2017] PGNC 252; N6946 (17 August 2017)

N6946

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 268 OF 2017

THE STATE

V

WAIM KANUA KERENGA

Kundiawa: Salika DCJ
2017: 16^th & 17^th August

CRIMINAL LAW – Charge of sexual penetration – Section 347(1) of the Criminal Code – guilty plea – victim looked upon him as her father – prisoner looked after victim for7 years – prisoner in position of trust – he abused the trust of victim – sentenced to 20 years imprisonment.

Case Cited:
John Aubuku v. The State [1987] PNGLR 267
The State v. Billy Turmur and Sou Mesak (2011) N4349
The State v. Kenneth Penias (1994) PNGLR 48
The State v. Pais Steven Sou (2004) N2588
The State v. Sou Mesak and others (2009) N3907

Counsel:

Ms. Roalakona, for the State
Mr. M Gene, for the Accused

DECISION ON SENTENCE

17^th August, 2017

1. SALIKA DCJ, INTRODUCTION: Waim Kanua Kerenga pleaded guilty to one count of sexual penetration of Mol Kiak Simeon by inserting his penis into her vagina without her consent. He also pleaded guilty to circumstances of aggravation in that about the material time he was in a position of trust, authority and dependency in that he was the guardian of Mol Kiak Simeon. The State had alleged that he was the adopted father of the victim. However, the prisoner said he was not the adopted father of the victim. It is however not disputed that he looked after the victim for 7 years and the victim looked upon him as her father or adopted father. I have given the prisoner the benefit of the doubt that he was not her adopted father but a guardian of care father of sort.
   

FACTS

2. On first June 2016, between 9 and 10 pm, Waim Kanua Kerenga took her, Mol Kiak Simeon, to Kupau in Dirimaugo Village and slept at the pig house. There at the pig house he threatened the complainant and hit her with an iron rod and forcefully sexually penetrated the victim by inserting his penis into her vagina without her consent. After this incident he would then have sex with the complainant whenever he wanted to. The State Says that when the accused sexually penetrated the complainant he did so without her consent and thereby contravened section 347 (1) (2) with the circumstances of aggravation under section 349A (e) of the Criminal Code Act (as amended) in that the accused was in a position of trust, authority and dependency in that he was the victims guardian.
   

ISSUE

3. The Court must now consider the appropriate sentence to impose on the prisoner.
   

THE LAW

4. The first place to get our hearing on the issue of what sentence to impose is where the law says is the penalty to be imposed. Section 347(1) and (2) of the Criminal Code says:-
   

“(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.”

Section 348A (c) of the Criminal Code Act (as amended):-

“A person who attempts to commit the crime of rape is guilty of a crime.

Penalty: imprisonment for a term of fourteen (14) years.

CASE PRECEDENTS

5. The National Court in the State v. Sou Mesak and others (2009) N3907 said:-
   

“The case before me is one of rape. The offence of rape is always serious because it offends against humanity’s standard of decency and analogous to the crime of robbery.” You know in armed robbery cases, a robber steals from someone who helplessly watches what is going on and he or she is robbed of whatever property they may have. Likewise, in rape case, sexual intercourse is forced upon the victim against her wish. When sex which is the intimate relationship is had without consent, there is no love.”

6. In the State v. Kenneth Penias (1994) PNGLR 48 Injia J (as he then was) said:-

“further to the above, I would add some of my own remarks. 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 like the prisoner, who prey upon them and rape them. But woman 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 with they choose to be, at any time and day. At times, because of their gender, with which comes insecurity, they need protection of men. Unfortunately, rape has become a prevalent offence in this country. Woman in towns and in villages are leaving in fear because of the pervasive conduct of men like the prisoner. Our women in small communities, in the villages and remote islands, and 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.”

7. In The State v. Pais Steven Sou (2004) N2588 the National Court said:-
   

“Parliament in appreciating the seriousness of the offence of rape has on behalf of the people, prohibited such conduct. It did so by enacting s.347 of the Criminal Code and prescribed a maximum penalty of life imprisonment. A number of Supreme Court decisions have elaborated on the relevant sentencing guidelines in this kind of cases. The much-celebrated case of John Aubuku v. The State [1987] PNGLR 267, is an example. These cases make it clear that the offence of rape is a serious crime and it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. Sentences range from 5 years for rape by an adult without any aggravating or mitigating features, to life imprisonment where there are aggravating features, such as perverseness, mental disorders or other serious aggravating factors.”

8. Again the National Court in the State v. Billy Turmur and Sou Mesak (2011) N4349 said:-
   

“Rape committed by more than one person or pack rape at it is known in Papua New Guinea is unthinkable, is unbearable and is inhuman to the victim, parents and relatives. The agony undergone by the victim is also unbearable and unforgettable. It is a scar of her life time because it was never consent to by the victim of rape. “MK” is no exception.”

Everyday rape is committed on innocent women and young girls. “MK” (the victim) was an innocent young virgin girl at 15 years old at the time she was sexually penetrated by the defendants. There shall never be any reasonable explanations by the defendants to the victim of why they had sexually penetrated her without her consent, but they know they had done damage to the victim.

Tougher deterrent sentences in the form of custodial sentences should be considered by the courts, even those involved are juveniles, or those recommended for non-custodial sentences by the Community Based Corrections (CBC) as well as Rehabilitation Services.

9. In John Aubuku v. The State (1987) PNGLR 267, the Supreme Court set out the ranges of sentence for rape offences. It suggested a range of sentence for 5 years to 15 years as starting point and more where aggravating factors are present. That was in 1987 and since then sentences for rapes have markedly increased.
   
10. Sentences imposed for aggravated rapes have ranged from 5 to 27 years imprisonment with sentences between 13 to 18 years as middle of range sentences. The history of the victim in this case is sad. Her mother died when she was a baby. She does not know her biological father. She was taken by Simeon Mond, her first adopted father and when she was 9 years Simeon Mond is alleged to have first raped her. Then she was taken by Kanua Waim the prisoner in this case and he took care of her for 7 years. She has always been a very vulnerable person.
    
11. The person kept saying he was not the victims adopted father. I accept that. However, the victim regarded him as her father. Why would she not regard him as her father because he had looked after her for 7 years? She looked upon him for security and everything else. She was entering womanhood only to end up in this way as a betrayed victim.

12. Her “father” her security and provider turned into a monster. He invaded her privacy and severed the relationship she once had with him as her “father” or guardian, her security and provider, was now a person who raped her. Her trauma can only be spoken of by herself.
    
13. I consider this case to be a very bad case of emotional, physical and psychological trauma. She was assaulted for refusing to take her clothes off. She endured real physical harm wounding, violence and forced rape of a child. Where one has looked after a child for 7 years and the child was entering womanhood is raped by that person a despicable act. Rape sentences imposed by the Courts do not appear to have any effect on deterring the crime of rape. Attitude of men in PNG have not changed. Men continue to sexually assault women at will.
    
14. All women have the same rights and opportunities as men. They are equal to men. That is guaranteed to them under the Constitution. They are entitled to be respected and fairly treated not only as women but as fellow human beings.
    
15. I note from the case that the prisoner’s motive for looking after the victim may have been for his own sexual gratification. I come to make that conclusion because he is saying he is not her adopted father and that he never signed any formal papers to adopt the victim. So why did he raise or look after her for 7 years from maybe a 9 year old girl to 16 years. Did he raise her for 7 years so that she could become his wife? Did he raise her for that purpose? It is possible that he did that reminds me of the old story of Hansel and Gretel who ended up in the home of an evil witch who pretended to be good to them by giving them the best food so that they could get bigger and fat quickly. She was only fattening them for her own gratification so she could then devour them. It is hard to comprehend that humanity can be like that.
    

MITIGATING FACTORS

16. The following are the mitigating factors:-
    
    • (a) He pleaded guilty to the charge
    • (b) He is a first time offender
    • (c) He cooperated with the police
    • (d) No clear evidence that victim was 14 years old
      

AGGRAVATING FACTORS

17. The following are the aggravating factors:-
    
    • (a) He was in a position of trust, security and dependency
    • (b) He used weapons to assault the victim
    • (c) He used force
    • (d) He penetrated her vagina without her consent
    • (e) He treated her as his wife
    • (f) She treated him before the rape as her father
      

PERSONAL PARTICUALRS

18. The prisoner is from Dumai Village, Yongomugl in the Sinasina Yongomugl District of the Simbu Province. He is 31 years old. He is educated to grade 10 level and is a Seventh Day Adventist and sustains himself through subsistence farming.
    

SENTENCE

19. The sentence I am about to impose on the prisoner takes into account the following factors:-
    
    • The gravity of the offence
      • - violence and weapons used to get her consent
    • The community disapprove of such actions and behaviour
      • - forcing a woman to consent is degrading a women and her person.
    • Serve as a warning as a deterrence to others.
      • - evidence shows the sentences imposed by the Courts appear not to deter offenders to commit this crime.
    • Punish the offender
      • - offender knows a wrong has been committed and so must accept responsibility.
    • Protect women
      • - it is the Courts duty to put violent offenders away by separating them away for long periods from the communities so that people and woman feel safe.
        
20. Considering all the mitigating and aggravating circumstances, I impose a term of 20 years imprisonment with hard labour. He has been in custody of 1 year. That is deducted from the 20 years. The remaining balance he is to serve is 19 years.
    

Sentenced accordingly.
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused