State v Turpat [2018] PGNC 462; N7441 (7 September 2018)

N7441

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 504 -505 OF 2014

THE STATE

V

KAPUTIN TURPAT

Kokopo: Susame, AJ
2018: 7 September

CRIMINAL LAW – sentence after trial - particular offence – sexual penetration of girl without consent – s 347(1) (2) of Criminal Code (Sexual Offence And Crimes Against Children) Act 2002 -

SENTENCING - mandatory death sentence in s 347c distinct and separate from penalties in s 344(1)(2) – sentencing considerations – prisoner 30 years old – victim 15 years of age – grandfather and granddaughter relationship – breach of trust, authority or dependency – 15 years head sentence considered –prevalence of offence- circumstances of aggravation present – 15 years sentence imposed, less pre-trial custody period

Cases cited:
John Aubuku v The State [1987] PNGLR 267
State v Pu-uh [2005] PGNC 172; N2949
The State v Penias Mokei (N0.2) [2004] N2635
The State v Tommy Koi (2), (2018) N7176

Counsel:
Miss. Batil, for the State
Miss. Pulapula, for the Accused

JUDGMENT ON SENTENCE

07 September, 2018

1. SUSAME, AJ: After trial court entered conviction against you for the crime under section 347 (1) (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 for sexually penetrating a young girl aged 15 years without her consent.
2. You now appear to receive your sentence after you and the lawyers addressed the court on sentence.
3. First I set out the law on the crime of rape, definition of circumstances of aggravation and the new crime of aggravated rape.
   
4. Section 347 reads:
   

“(1) A person who sexually penetrates a person without his consent is guilty of crime of rape.

Penalty: Subject to Subjection (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, imprisonment for life.”

5. Circumstances of aggravation is defined in section 349A.

“For the purposes of this Division circumstances of aggravation include, but not limited to, circumstances where—

(a) The accused person is in the company of another person or persons; or

(b) At the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) At the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) The accused person confines or restrains the complainant before or after the commission of the offence; or

(e) The accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) The accused is a member of the same family or clan as the complainant; or

(g) the complainant has a serious physical or mental disability; or

(h) The complainant was pregnant at the time of the offence; or

(i) The accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

6. In 2013 Parliament amongst other changes introduced a new crime of “Aggravated Rape” by Criminal Code (Amendment) Act (No. 6) 2013 which was certified on 18 September 2013. The new crime carried the maximum death penalty. The changes came about due to the mounting pressures from the public and society’s abhorrence against rape and violation of the rights of women which were becoming quite prevalent.
7. The amendment reads:

“The Principal Act is amended by adding immediately after Section 347B the following new section:

SECTION 347C. AGGRAVATED RAPE.

Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent –

(a) Whilst armed with a dangerous weapon or offensive weapon or instrument; or

(b) In company with one or more other persons; or

(c) Causes grievous bodily harm to a person, before, after, or in the course of the offence; or

(d) Of the victim a child under the age of 10 years,

Is guilty of the crime of aggravated rape and shall be sentenced to death.”

SUBMISSIONS

8. Counsels referred to a number of decided cases of the types of sentences imposed. One of which included The State v Penias Mokei (N0.2) [2004] N2635 which set down sentencing considerations for sexual offences case. Using that authority Ms. Pulapula submitted factors in mitigation outweighed the aggravating factors. She pleaded for a head sentence of 8 years to be further discounted taking into account the mitigating factors favourable to the offender.
9. For the State Miss. Batil reminded the court of the serious nature of the crime. She made reference to sentiments expressed by the courts in couple of cases of the need for stiffer deterrent and punitive sentence to be imposed due to prevalence of the crime of rape.
10. She stated crime in s 347(1)(2) carried the maximum death penalty however, subject to s 19 for the court to impose a lesser penalty. She asked the court to impose a sentence between the ranges of 20 to 25 years.
    

COURT’S OPINION ON THE AMMENDMENTS

11. Let me consider Miss. Batil’s statement on death penalty. I am pretty sure she made that statement in view of the 2013 amendment set out above and perhaps following my opinion in The State v Tommy Koi (2), (2018) N7176.
12. By implication her view is that penalty in s 347(1)(2) have been repealed by inclusion of the new crime of “Aggravated Rape” in s 347C which provided the maximum death penalty. That was also my view in The State v Tommy Koi (2) [supra].
13. It was an important point I could have asked counsels to argue on. I decided against that and proceed on to give my opinion. I have since altered my previously held view in State v Tommy Koi (N0.2).
14. Upon closer reading of the new law I realized amendment No.6 of 2013 did not repeal s 347 (1)(2). The section remains intact and operational. By the amendment Parliament introduced the new section 347C after s 347B, creating a new crime of “Aggravated Rape” which carries the maximum death penalty.
15. Crime prescribed in s 347 (1)(2) is distinct and separate from s 347C. Penalties provided in those offences are separate. Depending on the facts constituting a particular case State is at liberty to lay appropriate charges under either of the provisions.
16. Offender before this court was convicted for the crime provided in s 347(1) (2) with circumstances of aggravation. Prescribed mandatory penalty for that crime is maximum life sentence but, subject of course to s 19. Consideration of the death in s 347C is therefore inapplicable.
    

SENTENCING CONSIDERATIONS IN SEXUAL OFFENCES

17. The sentencing approach in rape cases was set by the Supreme Court in Aubuku v The State [1987] PNGLR 267. The court set down the following guidelines:

(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.

18. The suggested baseline sentences were:
    • ➢ 5 years for rape committed by an adult without any aggravating or mitigating features.
    • ➢ 8 years starting point 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,
    • ➢ 15 years head sentence or more for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger,
    • ➢ Life sentence 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.
      
19. Aubuku v The State (supra) was decided 31 years ago. The recommended baseline sentences in that case have been considered inappropriate and outdated in by both the National and Supreme Courts in view of the changing criminal behaviour and prevalence of rape cases in our society in recent times. (See Thomas Waim v The State [1997] SC519, Lawrence Hindemba v The State [1998] SC593, The State v. Eddie Peter (No 2) (2001) N2297, State v Eki Kondi & 4 ors (No 2) (2004) PGNC 226; N2543)
20. A clear demonstration of that is seen in sentences courts have begun imposing which are over and above the suggested base line sentences in Aubuku v The State. Counsels have made reference to some of those cases including The State v Penias Mokei (N0.2) (supra) and The State v Ndrakum Pu- Uh [2005] N2949.
21. In The State v Tommy Koi (2) when sentencing the prisoner to 25 years after trial, I expressed similar sentiments for tougher deterrent sentences to be imposed for rape cases due to prevalence of such crimes. In Penias Mokei and Ndrakum Pu-Uh offenders were convicted for offence in s 229A for sexual penetration of a child under 16 years of age. The sentencing considerations in Penias Mokei & Ndrakum Pu-Uh it seems followed on from guidelines in Aubuku. They also serve as useful guide and applicable in rape cases. Those considerations are set out below:

1. Is there only a small age difference between the offender and the victim?

2. Is the victim not far under the age of 16 years?

3. Was there consent?

4. Was there only one offender?

5. Did the offender not use a threatening weapon and not use aggravated physical violence?

6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8. Was it an isolated incident?

9. Did the offender give himself up after the incident?

10. Did the offender cooperate with the police in their investigations?

11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?

13. Has the offender pleaded guilty?

14. Has the offender genuinely expressed remorse?

15. Is this his first offence?

16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

DECIDED CASES

22. Sentences vary in the cases counsels have referred to depending on their peculiar factual circumstances. I will bother to cite each and every one of them. But let me say this. A survey of cases reveal there has been a shift in sentencing approach by the courts which has seen a gradual increase in the sentencing tariffs over the minimum base line sentences suggested in Aubuku. I am guided by those cases and the ones counsels have made reference.
23. It can safely be said that a large percentage of rape cases with circumstances of aggravation have attracted much stiffer penalties ranging from 10 years and upwards.
24. I suggest the following variations of the years suggested in Aubuku:

1. 10 years starting point for rape committed without aggravation factors,

2. 15 years base line sentence 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

3. 20 years starting point or more for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger,

4. Life sentence or death sentence for rape committed by accused 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 to the community.

25. Naturally, sentence is decided on its own facts and circumstances; and other relevant sentencing considerations aimed at achieving a specific purpose of deterrence, retribution and rehabilitation.
    

FACTS OF THE CASE UNDER CONSIDERATION

26. Facts of the case are in the judgment on verdict. You are close relative of the Dorcas. She calls you as her grandfather. She trusted you and followed you to your work place. You motive became known when you contacted the other guy and took her into the warehouse against her will. Therein you raped her. She would have been sexually penetrated by your other colleague had she not put up resistance and fled from you both.
    

AGGRAVATING FACTORS

27. Factors that weigh against you are that you conned her into accompanying you to your workplace. There you induced her with alcohol then forcefully sexually penetrated her vagina without her consent. You breached the trust, authority and dependency Dorcas had of you as someone to be trusted and depend on for personal safety and protection. The girl will no doubt live with the social and psychological stigma for the rest of her life, having been raped by her grandfather.
28. You generally denied committing the crime and forced the case to go into trial. You made your granddaughter appear in court (an open public forum) and withstand the shame of giving details of how she was raped. That is a pretty difficult thing to do for a young teenage girl. You never cooperated with police or your relatives who searched for you everywhere when Dorcas reported the rape on her. You avoid being questioned and arrested and went into hiding immediately after you committed the crime until after 3 years when you were finally apprehended.
29. At the allocutus you said you respected the court’s decision. You said you never raped Dorcas except that you brought her to Wari. You were sorry for what you did.
30. I consider your apology as shallow or superficial and not genuinely from the heart. You maintained you innocence despite the verdict reached. You have done nothing tangible to the girl and her family in repairing the wrong in accordance with the accepted customary practices of your tolai people as evidence of your true expression of remorse.
    

MITIGATING FACTORS

31. Factors that stand to mitigate your sentence are. Though you forced and threatened her no offensive weapons were used. You never caused any physical injury or transmitted any known sexually transmitted infections to your granddaughter. You never made her pregnant.
32. Although it was a one off incident and you have no prior convictions those factors are of less significance considering the seriousness of the crime.
    

SENTENCE

31. I have been reminded of the principal of law on imposing of maximum penalty for any given crime. I consider circumstances of your case do not place it in the worst category to attract the maximum life sentence. In the alternative a lesser sentence will be considered in the exercise of sentencing discretion under s 19. Of course within the range of sentences in decided cases to maintain parity in sentencing tariffs.

32. In my discussions above I suggested a slight increase of the baseline sentences of the 4 category of rape cases in Aubuku. Circumstances of this case fall within category 2, which is 15 years sentence. Should it be slightly reduced or increased considering the factors in mitigation and aggravation?

33. Rape is a very serious crime against women and young girls. It is a crime of intrusion and violation their God given fundamental right of privacy, of existence, of self-worth as a human being.

34. The crime is quite prevalent in East New Britain Province and also in other parts of the country. Courts cannot be insensitive about society’s reaction against such crimes. In exercising judicial power of the people vested by the Constitution courts have a duty to take into account the society’s interest. Sentence imposed must sound the message loud and clear men who commit rape against women will be met by heavier penalty.

35. Furthermore, it would have mattered most to me if you had done something tangible and reconciled with your granddaughter and her family by customary practices of tolai people as expression of you remorse. In court you never indicated you intend to do that in future.

36. You went into hiding and did nothing about it until your conviction. You still cannot accept the verdict as you expressed at the allocutus.

37. The sentence I shall pass on you should achieve the purpose of your personal and public deterrence as well as your personal rehabilitation depending on your willingness to actively participate or involve in the prison rehabilitation programs. I consider sentence of 15 years is appropriate considering circumstances of aggravation and following discussions advanced. There are no exceptional mitigating factors that would persuade the court to give a discount. Conversely to increase it slightly would in my view too severe a penalty.

38. Accordingly, you are sentenced to 15 years imprisonment. In the exercise of court’s discretion pre-trial custody period to be deducted from the sentence imposed. Balance of the sentence to be served with hard labour at the Kerevat Jail.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused