State v Kuman [2017] PGNC 275; N6925 (8 September 2017)

N6925

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 341 OF 2014

THE STATE

V

PETER KUMAN

Kundiawa: Liosi AJ

2017: 19^th April & 8^th September

CRIMINAL LAW – Sentence – Rape S. 347 (1) Criminal Code – Guilty plea – Aggravated rape through restraint and use of weapon namely a coffee stick – Sentencing principles and guidelines discussed – Offenders sentenced to 12 years imprisonment in hard labour less pre-trial custody period.

Case Cited:

Goli Golu v. The State [1979] PNGLR 653
John Aubuku v. State [1987] PNGLR 201;
Lawrence Hindemba v. The State [1998] SC 593
Maima v. Sma [1972] PNGLR 49
State v. Kenneth Penias [1994] PNGLR 51
The State v. Kunija Osake [2003] N2380
The State v. Peter Huli Hahe Haite [2003] N2383
The State v. Damien Mangawi [2003] N2419
The State v. Alphonse Apou Dioro [2003] N2431
The State v. Flotyme Sina (No 2) [2004] N2541
The State v. Eki Kondi and 4 others (No.2) [2004] N2543
The State v. Ezra Hiviki (No 2) [2004] N2548
The State v. Julius Ombi (No 2) [2004] N2552
The State v. Luke Sitban (No 2) [2004] N2566
The State v. Junior Apen Sibu (No.2) [2004] N2567
The State v. Gary Sasoropa and 2 Others (No 2 [2004] N2569
The State v. Kapinias [2016] PGNC 95 N6282
The State v. Lui Gura [2014] PGNC 6193
The State v. Dii Gideon [2002] PGNC 17 N2335
The State v. Ludwick Jokar (No.2) (24.04.08) N3362

Counsel:

Mr. Emmanuel Thomas, for the State
Mr. Misil Yawip, for the Offender

DECISION ON SENTENCE

8^th September, 2017

1. LIOSI, AJ : The offender pleaded guilty to 1 Count of Rape contrary to S.347 (1)(2) of Criminal Code as amended.
   
2. The brief facts for purposes of arraignment are as follows. At around 2pm on 8^th October 2011, the accused Peter Kuman was at Kulgai just beside the main Okuk Highway in Kundiawa with his other accomplice one Costello Sikman. The victim, an adult female was taking a walk from Kundiawa town to go back to her village. The accused and his friend followed her from behind and caught up with her. The accused grabbed her shirt whilst his friend lifted her legs and they dragged her into the nearby bush. They threatened her not to scream or shout. The accused then pushed her to the ground and stripped her off her clothes. The accused forcefully opened her legs, removed his trousers and inserted his penis into her vagina. When the accused finished penetrating the victim, he went and acted as a “watchman” keeping an eye out for people whilst his accomplice forcefully penetrated the victim by inserting his penis into her vagina.
   
3. The accused then attempted to penetrate the victim again, but the victim screamed and resisted. The accused then threatened to hit her with a coffee stick and told her not to scream. He then forcefully inserted his penis into her vagina on the second occasion and sexually penetrated her. After the incident, both men ran away into the nearby coffee gardens. The victim got up, dressed herself came down to the main road, met one Kua Arnold and told him of the ordeal and the identity of the suspects involved. She then hopped on a police vehicle, went to pick up her husband in the village, came to the police station and laid an official complaint. After that, she was taken to the Kundiawa General Hospital for a medical examination. State further alleges that the accused and his accomplice sexually penetrated the victim without her consent and is contrary to Section 347(1) of the Criminal Code (as amended).
   
4. Rape is defined by S.347(1)(2) in the following terms:
   
   • (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.

5. On his statement on allocatus, the prisoner expressed remorse and apologised to the Court. He further said that he is now blind and finds it difficult to move around in prison. He did not state what caused his blindness although his counsel has tried to explain that he was assaulted before the arrest loosing complete use of his right eye.
   
6. The prisoner is from Gond Village, Kundiawa. He is a member of the catholic faith and has no formal education. He was educated up to grade 4 at Angil Primary School. He is married and has 2 children aged 5 and 2 years respectively. Presently the children are with his wife. He was assaulted before the arrest and has lost the complete use of his right eye. Whilst in prison he relies on other prisoners to assist him move around.
   
7. The maximum penalty without circumstances of aggravation is 15 years. If there are circumstances of aggravation the maximum penalty is life year subject to S.19 of the Criminal Code. S.19 of the Criminal Code provides for various sentencing options available to the Court. It provides Court the discretion to impose penalties according to circumstances of the case. The Supreme Court case of Goli Golu v. The State [1979] PNGLR 653 stands for the proposition that the maximum penalty is normally reserved for worst case offences.
   
8. In the case of State v. Kenneth Penias, (1994) PNGLR at 51; his Honour Injia AJ as he then was said;
   

“Rape constitutes an invasion of the privacy of the most intimate part of a woman’s body. Women become sex objects 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 equal rights and opportunities as men guaranteed under the Constitution. They are entitled to be respected and fairly treated.”

9. Thus custodial sentence is a starting point for the fundamental reasons given above. The maximum penalty is life year’s imprisonment if circumstance of aggravation is pleaded.
   
10. Sentencing guidelines for rape were set in the case of John Aubuku v. State [1987] PNGLR 201;

Sentencing guidelines for rape given in Aubuku’s case – Old Law

No	Circumstances in which rape committed	Starting point
1	Rape committed by an adult without any aggravating or mitigating features:	5 years
2	Rape committed by: One or more persons acting together; or persons who has broken into or otherwise gained access to a place where the victim is living; Person who is in a position of responsibility towards the victim; or person who abducts the victim and holds her captive.	8 years
3	Rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger.	15 years
4	Rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, where the accused is likely to be a danger if at large in the community.	Life imprisonment

11. Depending on the circumstances of each case, the above serve as a starting point. The sentencing trend has increased since then.
    

Comparable cases

Table 3: Sentencing for rape since 2003

No	Case	Details	Sentence
1	The State v. Kunija Osake (2003) N2380, Jalina J	Offender raped an 11-year old girl – guilty plea – breach of trust.	18 years
2	The State v. Peter Huli Hahe Haite (2003) N2383, Jalina J	Rape of 11 year-old girl – guilty plea – offender had prior convictions for rapes of young girls	20 years
3	The State v. Damien Mangawi (2003) N2419, Kandkasi J	Offender convicted of unlawful	12 years
4	The State v. Alphonse Apou Dioro (2003) N2431, Davani J	Offender pleaded guilty to gang rape of 15-year old girl – over seven hours – use of bush knives and various other weapons.	16 years
5	The State v. Flotyme Sina (No 2) (2004) N2541, Kandkasi J	Offender convicted after trial of rape of a married woman – no prior convictions – no physical injuries – customary compensation paid.	17 years
6	The State v. Eki Kondi and 4 others (No 2) (2004) N2543, Kandkasi J	Gang abduction and rape in broad daylight – offenders armed with bush knives – threats of violence to third parties – conviction after trial.	18-25 years, depending on degree and participation and age
7	The State v. Ezra Hiviki (No 2) (2004) N2548, Kandakasi J	Rape of 10 year –old girl by older relative – breach of trust – vaginal injuries requiring medical repair – guilty plea – expression of remorse – first – young offender	13 years
8	The State v. Julius Ombi (No 2) (2004) N2552, Kandakasi J	Abduction and attempted rape of a relative – breach of trust – conviction after trial – first, young offender – no remorse.	9 years
9	The State v. Luke Sitban (No 2) (2004) N2566, Kandakasi J	Offender raped a 10-year old girl – conviction after trial – no prior conviction – no physical injuries – no customary compensation paid – no remorse.	17 years
10	The State v. Junior Apen Sibu (No 2) (2004) N2567, Kandkasi J	Rape of a 10 years old girl – breach of trust – conviction after trial – no remorse – first, young offender	13 years
11	The State v. Gary Sasoropa and 2 Others (No 2 (2004) N2569, Kandakasi J	Gang rape of girlfriend and relative – repeated act of rape – conviction after trial	22-25 years depending on prior convictions

12. In mitigation Mr. Yawip submits that the prisoner pleaded guilty and has saved the Court’s time. He submits a term of 10–15 years based on his medical conditions would be appropriate sentence.
    

State’s Submissions

13. Mr. Thomas for the State submits the aggravating factors include the trauma and emotional stress the victim endured during the ordeal when she was restrained against her will and subjected to threats of further violence if she did not cooperate. This include the shame and stigmatisation she would experience in the community as a result of been raped and further having forced sex with the offender more than once.
    
14. Accused is charged for aggravated rape pursuant to section 347(1)(2) of the Criminal Code. Circumstances of aggravation is provided under section 349A(a). The maximum is therefore life imprisonment subject to section 19 of the Criminal Code. Section 19 gives the Court wide sentencing discretion. Aggravating factors which the Court should also consider is the trauma and emotional stress the victim endured during the ordeal when she was restrained against her will and subjected to threats of further violence if she did not cooperate. Shame and stigmatization she would experience in the community as a result of being raped. He had sex with the victim more than once. Rape is a violent offence and is prevalent thus a punitive sentence is necessary. John Abuku v. The State [1987] PNGLR 267 and Lawrence Hindemba (1998) SC593.
    
15. The State cited the following cases by way of comparison. In the State v. Kapinias (2016) PGNC 95 N6282. The victim was chased and raped at the road side. The victim was then raped again in her own home for the second time. The victim and the offender were close blood relatives and there were threats of violence issued. The offender was found guilty after a trial on two counts of aggravated rape and was sentenced to 25 years consecutive terms for both counts. In the State v. Lui Gura (2014) PGNC 6193, the accused was found guilty after a trial on one count of aggravated rape. The aggravating factor being the wide age difference between the accused and the victim. The accused was found guilty after a trial and was sentenced to 15 years. In the State v. Dii Gideon (2002) PGNC 17 N2335 Injia J as he then was sentenced the offenders to 25 years in hard labour. This was a case of aggravated pack rape involving the accused and 2 others. The victim was an expatriate and incident occurred in her family home in front of her family. She was 3 months pregnant at the time of the offence. In the State v. Eki Kondi & 4 Ors (No.2) (2004) PGNC 226 the Court found the offenders guilty after a trial. This was a gang rape involving 10 perpetrators. Weapons were used and several acts of sexual penetration were performed on the victim. The sentence ranged between 18 to 25 years. The leader of the group received 25 years.
    
16. In the present case there were two (2) perpetrators of the rape. The accused had more than one turn in raping the victim. The victim was subjected to threats of violence and was restrained against her will. This is a guilty plea. The first two (2) cases referred to above were aggravated rape sentences following trial which attracted sentences of 10 to 15 years. In those cases the main aggravating factors were that the accused were close blood relatives and the wide age difference respectively. In Dii Gideon, the aggravating factors were considered to be more serious so a term of 25 years was imposed despite the guilty plea. In Eki Kondi each perpetrators involvement was taken into account with the main offender receiving 25 years.
    
17. This is not the worst type of a rape case to attract the maximum penalty. Likewise, it’s circumstances are not as serious as that in Gideon Dii. A strong punitive and deterrent sentence is warranted because of the prevalence of the offence and the countries recent strong sentiments against all forms of violence against women. State would submit for a custodial sentence between 12-15 years in hard labour.
    

Application of Law

18. The offence of rape carries the maximum penalty of 15 years. Where the offence is committed with circumstances of aggravations like force, threats or applications of offensive weapons pursuant to sub-section (2), the maximum penalty is life imprisonment.
    
19. The offence of rape and other sexual crimes are so common. Although the Courts have been imposing sentences reflecting the seriousness of the crime of rape whether simplicitor and those with aggravations, this has not had any effect on the desired purpose of deterring offenders. The Courts continue to hear these cases, nationwide.
    
20. This means that the woman and young girls and even children of this country, are so vulnerable and are at the mercy of those who call themselves their protectors. So the Courts must continue to impose sentences that will justify the pain, suffering and psychological damage the infant child or teenager suffered, is suffering and will continue to suffer.
    
21. It is obvious, with this type of offence that whatever term of years imposed by the Courts upon the offenders cannot be measured against the pain, suffering and trauma, both psychological and physical, that the victim of this case has suffered and will continue to suffer and endure until she is old. Sexual abuse whether by rape or other sexual offences under the Amended Criminal Code is so prevalent indeed.
    
22. The Supreme Court said in the case of John Aubuku v. The State [1987] PNGLR 267 and Lawrence Hindemba v. The State (1998) SC 593 held that, the crime of rape involves violence and is so prevalent that, immediate punitive sentences must be considered.
    
23. To illustrate the sentencing trends for rape cases in the National Court, in The State v. Ludwick Jokar (No 2) (24.04.08) N3362 a case in Wewak where the accused was charged with two counts of aggravated rape. The case went through a trial and he was found guilty. He was imprisoned to 6 years on each count to be served cumulatively. In The State v. Ilam Peter (2006) N3090, the prisoner was sentenced to 14 years for a charge of rape and other sexual crimes.
    
24. In The State v. Pais Steven Sow (2004) N2588, in a plea of guilty, the prisoner was sentenced to 15 years. In the State v. Flotime Sina (No. 2) (2004) N2541, the prisoner was sentenced to 17 years. In the case of The State v. Junior Apen Sibu (No. 2) (2004) N2567 Kandakasi J, imposed a sentence of 13 years imprisonment on a 16 year old man who raped a 10 year old victim relative. The aggravating factors in that case were the age factor and the fact that the victim was a relative of the prisoner.
    
25. In case of aggravations like that of The State v. Dii Gideon (2002) N2335, Justice Injia (as he then was) imposed a sentence of 25 years for a pack rape by three (3) men on a three months pregnant overseas visitor with threats of violence and use of weapons after a home invasion and robbery.
    
26. In another aggravated rape case of The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi & Issac Sip (No 2) (2004) N2543, the Court imposed sentences of 18,20,22, & 25 years were imposed for a gang rape by 10 men. They were sentenced according to the degree of violence and participation of the crime they committed. They were armed and the victim was forcibly abducted. There were several acts of rape.
    
27. The victim of the instant case was 39 years old. Rights of women cannot be continually abused because men like the prisoner cannot respect them. They are entitled to the fundamental rights guaranteed by PNG Constitution such as the right to freedom, right to life, freedom from inhuman treatment and to the right of protection of the law and liberty of all persons. (See sections 32, 35, 36, 37 & 42 of the Constitution).
    
28. In your case the Court considers the principles in cases such as Maima v. Sma [1972] PNGLR 49 and others. The case stands for the principle that the maximum penalty ought to be reserved for the worse case of a particular crime.
    
29. In the instant case, I am of the view that, the Court should not impose the maximum penalty of life imprisonment but instead, it should impose a term of years. I hope the sentence of this Court will sound a clear warning to similar offenders who harass their women folks and consider them or treat them as sexual slaves or objects.
    
30. To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and then next the Court should consider the circumstances of the particular case in line with the current sentencing trends by other judges of this Court for similar type offences.
    
31. It is worth mentioning the above cases to demonstrate to the public that the offence of rape is very serious so that all communities and the silent victims out there must know that their rights are protected by law and to see how serious the charge of rape is.
    
32. I have considered the prisoner’s statement on allocatus in which he has said sorry. I have also considered the fact that there was force applied to threaten the victim with a coffee stick if she called out or shouted before the crime was committed. I consider all submissions by counsels on mitigations and aggravations.
    
33. I consider that the case is not the worst type case and I am of the view that the prisoner be sentenced to a term of years that will show the society’s revulsion and concern against this type of violation of the females rights to the protection of law. Woman and girls are entitled to the same constitutional rights as guaranteed by the law of this nation.
    
34. After having considered all the mitigations submitted in favour of the prisoner and the aggravations as put by the prosecuting counsel, I consider that the sentence imposed should serve as a warning to other people who would be likely offenders. In the circumstances I sentence you to 12 years imprisonment in hard labour and less any time spent in pre-trial custody.

Ruling accordingly.
____________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused