State v Marase [2017] PGNC 395; N7201 (27 October 2017)

N7201

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1218 OF 2017

THE STATE

V

PETER MARASE

Kerema: Koeget, AJ

2017 : 25 & 27 October

CRIMINAL LAW - Indictable offence – section 347 of the Criminal Code Act – Maximum sentence – conviction on plea – prevalence of offence – Court’s discretion under section 19 of the Criminal Code Act.

FACTS

On the night of 03^rd May, 2017 between seven o’clock and eight o’clock, the accused Peter Marase was at the victim Theresa Badia’s house located at Karama Primary School in Karama village of the Gulf Province.

The accused called the victim from her house and verbally demanded to have sex with her for him attending to her complaint of intruders disturbing her and Dorothy Marase the previous night.

The victim refused but he demanded that she accepts his demand. The victim feared her own life and followed him to the banana patch at the rear of her house and she removed her clothes and he had sexual intercourse with her by inserting his penis into her vagina.

The State alleged that the victim did not give consent to the accused to have sex with her that night.

Case Cited:

Aubuku –v- The State [1987] PNGLR 267
Pitaro –v- The State (2006) SC 846

Counsel:

D. Mark, for the State
W. Dickson, for the Accused

27^th October, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged that on 03^rd of May, 2017 at Karama village in the Gulf Province of Papua New Guinea committed rape upon the victim Theresa Badia without her consent.

The charge is brought pursuant to section 347 of the Criminal Code Act chapter 262.

ARRAIGNMENT

2. The accused stated: “yes it’s true” and so he was convicted on his own admission.

ISSUE

3. The issue for the Court to determine is what is the appropriate sentence to impose upon the prisoner.

LAW

4. “Section 347. Definition of rape.

A person who has carnal knowledge of a woman or a girl, not being his wife –

(a) without her consent is guilty of a crime of rape.

Penalty: subject to section 19, imprisonment for life.”

“Section 19. Construction of provisions of Code as to punishments.

(1) In the construction of this code, it is to be taken that, except when it is otherwise expressly provided –

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term ....”

PERSONAL PARTICULARS

5. The prisoner is 42 years of age and married with two (2) wives and eleven (11) children. All immediate family members are at Karama village.

6. He completed grade 10 at Malalaua High school and worked for a year with National Library and Archives and returned home to live a life as a subsistence gardener.

7. He was convicted for the offence of unlawful killing in 1991 and sentenced to five years in hard labour. He was release from jail in 1995 and returned to the village in the Gulf Province.

8. This is his second conviction for another very serious offence defined in the Code.

AGGRAVATING FACTORS

9. The prisoner used the bush knife to threaten the victim at night in her house and demanded sexual favour. This is the second time the prisoner is convicted for a very serious criminal offence. He has not learnt a lesson at all.
The victim is traumatised and now believe that her dignity is tarnished and she will not live a happy marriage life should the husband learn of the incident.

10. The victim out of kindness provided food and accommodation to the children of the prisoner. When there was disturbances at her house the previous night, she sought assistance from the prisoner. The victim depended on the prisoner for security as his children were residing in her house at the school but such was abused when he committed the offence upon her.

MITIGATING FACTORS

11. The prisoner pleaded guilty to the charge and saved valuable time of the court.

SENTENCE

12. The offence of rape is a serious offence under the Criminal Code Act chapter 262. This is the prisoner’s second conviction on a very serious criminal offence define in the Code. The prisoner has not learnt a lesson from previous conviction and sentence so a tough and deterrent sentence must be imposed upon him.

13. The prisoner planned to commit the offence and he executed it at the time when the victim sought his assistance for security after disturbances the previous night caused by some youths from the village at her house.

14. The prisoner abused the trust the victim placed upon him to provide security at her house for herself and the prisoner’s own children who were residing in her house at the school premises.

15. The community members at Karama village are disgusted with what the prisoner did to a school teacher and fear that the Education Department might close the school and innocent children’s education suffer through no fault of theirs.

16. The provisions decided cases of:-

1. Aubuku –v- The State [1987] PNGLR267
2. Pitaro –v- The State (2006) SC 846
   

set out the guide lines on sentences for the offence of rape.

17. The court has discretion under section 19 of the Criminal Code Act to impose a shorter imprisonment term then that prescribed by section 347 of the Code.

18. In the circumstances of this case, the prisoner will be sentenced to a shorter period.

19. The prisoner is sentenced to be imprisoned for a period of twenty-five (25) years in hard labour. The prisoner is to serve the sentence at Bomana Corrective Institution Services.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused