Sate v Sakiusa (No. 2) [2018] PGNC 616; N9237 (20 June 2018)

N9237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 609 OF 2016

THE STATE

V

KEVIN SAKIUSA
(NO 2)

CR NO. 610 OF 2016

THE STATE

V

JOEL LAI
(NO 2)

Alotau: Toliken J
2018: 20^th March, 20^th June

CRIMINAL LAW – Sentence after trial – Aggravated rape – Multiple accused - Complainant heavily intoxicated - Accused also intoxicated - Complainant penetrated by accused persons and another person – First time offenders –Varying degrees of participation – Starting point for Aggravated rape – 15 years whether on plea or after trial – Appropriate Head sentences – 16 & 14 years less pre-trial/sentence custody periods – Criminal Code Ch. 262, s 347C (b).
Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1983] PNGLR 92
The State v John Aubuku [1987] PNGLR 267
Thomas Waim v The State (1997) SC519
Seteb v The State (2001) SC666
Sinclair Matagal v The State; SCRA No. 95 of 1996 (Unreported Judgment dated 4 June 1998)
The State v Donald Poni (2004) N2663
The State v Henry Nandiro (No.2) (2004) N2668
The State v Eki Kondi &4Ors (2004) N2543
The State v Danold Angavia & 2 Ors (2004) N2590
The State v Garry Sasoropa & 2 Ors (2004) N2569
The State v Baimon Jonny (2008) N3861
The State v Sou Mesak & 2Ors (2009) N3907
The State v Biri Frank (No.2) (2012) N4700
The State v Kapil Omba (No.2) (2011) N4250

Counsel:

J. Apo and A Kupmain, for the State
P. Palek, for the Prisoners

SENTENCE

20^th June, 2018

1. TOLIKEN J: The prisoners Kevin Sakiusa and Joel Lai were convicted after trial at Esa'ala, for one count of aggravated rape pursuant to Section 347C (b) of the Criminal Code Ch. 262 (the Code). (See The State v Kevin Sakiusa; CR 609 of 2016 and The State v Joel Lai; CR 610 of 2016 (Unnumbered judgment of 14^th September 2017).
   
2. For the purpose of sentencing, the pertinent brief facts are as follows; On the Friday 30^th October 2015, Marina Inosi (victim), Cathy Graham, Serah Wapawapa, Harry Toedi and the prisoner Kevin Sakiusa left the Logging Camp at Sebutuya at about 6.00p.m and were walking to Awapoi village for a dance. Marina Inosi carried two 40oz. bottles of Coffee Punch in a rice bag. They were drinking on the way. The road took them up hills and through flat land.
   
3. On the way they were joined by two other men namely, Jeffery Bani and James Robert. When they arrived at Momo'awa Primary School Serah Wapawapa was so drunk she could not walk, so they left her in a house there to sleep and continued walking to Awapoi.
   
4. Around the same time Hudson Gabriel, Simeon, Uriah and Gibson, who had earlier been at the school, were also walking back towards Awapoi when they met the prisoner Kevin Sakiusa and his group somewhere around the Tolai Bridge and they continued walking with them. Somewhere along the way the prisoner Joel Lai also joined them. By then Marina was so drunk that she fell down some distance from Tolai Bridge. A Tipper truck came along, and they put Marina on. The others walked behind.
   
5. The Tipper truck stopped at the Awapoi Junction (about 400m from where they had put Marina on the truck) and Marina alighted. By then Hudson and others had arrived also and he and a PMV truck driver by the name of Joe carried Marina part way up to Awapoi village before Joe left them to attend to his passengers. Hudson was helping Marina up when the prisoner Kevin Sakiusa arrived. Hudson asked him to help take Marina to her mother's house, but Kevin insisted that he takes her to his newly built house instead, and so Hudson took her there. At the house Kevin gave Hudson his bush knife, a bag, money and a bottle of Coffee Punch and told him to keep them.
   
6. Hudson left Kevin with Marina and went to his house where he met Jimmy Kelebi. He gave Kevin's bag, money, and bush knife to his wife, but kept the bottle of Coffee Punch. Other boys namely Simeon, Gibson, Ilaigu and Uriah joined them, and they sat down drinking in his house.
   
7. After a while, they heard Kevin's wife talking angrily to Kevin and Marina. Hudson and Ilaigu went down to see what was happening. In the bushes away from Kevin's house they came upon Kevin and Marina. Kevin was standing fully clothed while Marina was sitting down on the ground completely naked. Hudson tried to help Marina, but Marina swore at him saying "Fucken, I am already independent, leave me alone." So, Hudson left and returned to his house.
   
8. Marina was so drunk she was not able to control herself as it was her first time to drink alcohol. And in her drunken state she was sexually penetrated by Kevin Sakiusa and Joel Lai and their friend Sisko Peter before they were disturbed by Sakiusa Taudinoya, Kevin Sakiusa's father. Kevin Sakiusa ran up to the main road and Marina followed him up. He then took Marina to his old yam house where he sexually penetrated her again. Both prisoners were also under the influence of alcohol that night.
   
9. I found at the trial that the victim, given the state she was in, she was incapable of giving genuine voluntary and free consent.
   

THE OFFENCE

10. Aggravated rape is a new offence, introduced to the Code recently by Criminal Code (Amendment) Act 2013, No. 6, s 2. It provides:

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.

SENTENCING ISSUE

11. The issue for my determination is what an appropriate sentence for the prisoners’ ought to be.
    
12. While the maximum penalty for this offence is death, it is settled law that I may only impose the maximum if I consider this to be a worst instance of aggravated rape. It is also trite that, whatever sentence I impose will depend on the peculiar facts and circumstances of this case: (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92).
    
13. At the outset I must say that this is not a worst case of aggravated rape, therefore it ought not to attract the maximum penalty. I must, however, impose a sentence that will be appropriate and fitting to the circumstances of the case and according to each prisoner’s degree of participation.
    

ANTECEDENTS

14. Both prisoners come from Oyadowa Village, Sebutuya Ward, Ferguson Island, Esa'ala District, Milne Bay Province. Both are first-time offenders. They are simple villagers and are not adequately educated. Sakiusa was educated up to Grade 8 only while his friend Lai only has a Grade 6 level education. Both are members of the United Church. They have been in pre-trial and sentence custody for a period of 2 years 7 months and 20 days.
    
15. Sakiusa is 26 years old and is married with a 5-year-old daughter. He is the first born in a family of 4 siblings and his parents are still alive.
    
16. Lai is 22 years old and single. He is the fifth born in a family of 6 siblings. Both his parents are still alive.
    

PLEA IN MITIGATION & SUBMISSIONS

17. On his plea in mitigation, Sakiusa acknowledged his unacceptable behaviour toward the victim and apologised for it. He said that he has realized that what he did was wrong before God and society. Because he is a first-time offender he pleaded for mercy and asked to be given probation.
    
18. Lai on the hand denied sexually penetrating the victim. He admitted that as he walked onto the crime scene, he saw two men standing while one was penetrating the victim. Seeing them and the victim’s naked body he became sexually aroused. He could not control himself as he was drunk, so he unbuckled and moved his trousers down to his knees and was awaiting his turn to penetrate the victim when Sakiusa Tadinoya came shouting down with a spear. He then quickly pulled his trousers up and ran off. He said he had denied the crime because his penis did not penetrate the victim’s vagina.
    
19. He, however, apologised to the victim for what had happened to her. He also apologised to her family, the community, District and Province. He apologised for breaking the law. He said he was a first-time offender and promised that this will be his last appearance before the court. He implored the Court to make a fair decision and have mercy on him by giving him good behaviour under probation supervision.
    
20. Mr. Palek, for the prisoners submitted erroneously that the prisoners were charged and convicted of rape with circumstances of aggravation which would have attracted a maximum penalty of life imprisonment (s 347(1)(2)). In fact, they were charged and convicted for the newly created offence of aggravated rape under Section 347C (b) of the Code.
    
21. Be that as it may, Mr. Palek submitted that an appropriate sentence for the prisoners ought to be 12 -16 years. Counsel submitted that this was a case of over-indulgence in alcohol by the prisoners and the victim herself, and analogous to simple rape. Counsel also submitted that the victim ought to have been more careful and even though she did not consent, her actions displayed a different signal which may have induced her male drinking mates to sexually assault her. Mr. Palek directed the Court to some mitigating factors but conceded that the offence is prevalent.
    
22. Mr. Palek cited several cases which unfortunately were cases of simple rape, or rape with circumstances of aggravation involving individual offenders. These are not therefore entirely relevant for sentencing multiple offenders in pack or gang rapes.
    
23. Mr. Kupmain, on the other hand for the State, in response to Mr. Palek’s suggestion that the victim should also be blamed, submitted the Court should not give that submission any serious consideration as women in our society should be able be walk around freely and consume alcohol freely and socialize freely.
    
24. Counsel submitted this is a gang rape for which there are many reported cases such as The State v Donald Poni (2004) N2663 where the offender and his accomplices abducted the victim from her family home, took her away and then took turns in raping her. The offender was sentenced to 19 years imprisonment.
    

SENTENCING PRINCIPLES AND TREND

25. The case of The State v John Aubuku [1987] PNGLR 267, had for some time been the leading authority for sentencing in rape cases. However, the tariffs suggested in there have been held now to be out of date by both the National Court and the Supreme Court. Be that as it may, the Supreme Court has not pronounced any new guideline tariffs as it did in homicide cases. (See Manu Kovi v The State (2005) SC789). The guidelines in John Aubuku suggested that the starting point for gang rape ought to be 8 years.
    
26. Sentences for pack rape have, however, increased consistently though a few have been tossed on appeal by the Supreme Court on the principle of “quantum leap.” (Thomas Waim v The State (1997) SC 519; Seteb v The State (2001) SC 666).
    
27. However, as Kandakasi J correctly observed in The State v Poni (supra) there had been a “quantum leap” of rapes, including aggravated rape since John Aubuku was decided.
    
28. About 10 years after John Aubuku was decided, the Supreme Court in Lawrence Hindemba v. The State (1998) SC593, when increasing a sentence of 10 years to 15 years on a guilty plea for simple rape by a first time offender acting alone, and after discussing cases decided up to that time said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much-celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

29. That rape of any kind must be condemned in the strongest possible terms for the dehumanizing effect it has on our womenfolk, is succinctly reflected in the statement of His Honour Injia J (as he then was) in The State v Kenneth Penias [1994] PNGLR 48. There his Honour said at p.51:
    

“Rape constitutes an invasion of the privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone to men... who prey upon them and rape them...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 they choose to be at any time of the day. At times because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in the country. Women... are living in fear because of the pervasive conduct of men...Our women... 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 severely punished with a strong punitive sentence.”

30. The situation has not improved, and society continues to be plagued by this scourge on our womenfolk. The following cases – all gang or pack rapes – testify to the treatment the courts have given to this type of rape i.e., rape with circumstances of aggravation, and I cite them to provide a guide to what the prisoners in this case should expect.
    
31. The State v Henry Nandiro (No.2) (2004) N2668, per Kandakasi J: The 14 years old victim was raped by an armed gang of 6 men. The victim suffered injuries. The offenders had no prior conviction. After trial the offenders were sentenced to 20 years.
    
32. The State v Eki Kondi & 4 Ors (2004) N2543, per Kandakasi J: The offenders abducted and raped the victim in broad daylight. They were armed with bush knives and threatened violence to third parties as well. After trial the offenders were served sentences ranging from 18 – 25 years depending on their individual degree of participation.
    
33. The State v Danold Angavia & 2 Ors (2004) N2590, per Kandakasi J: There the offenders, one of whom was the boyfriend of the victim were convicted after trial for the gang rape of the victim. The offenders were youthful with no prior conviction. They were sentenced to 17 years.
    
34. The State v Garry Sasoropa & 2 Ors (2004) N2569, per Kandakasi J: On conviction after trial, the offenders were sentenced to terms of imprisonment ranging from 22 – 25 years depending on their degree of participation for the repeated gang rape of a relative.
    
35. The State v Baimon Jonny (2008) N3861, per Kandakasi J: The offender was part of a gang who raped the victim after threatening her with violence. The victim got pregnant, but the pregnancy was prematurely terminated. The offender pleaded guilty, was a first-time offender, expressed remorse and co-operated with the Police. He was sentenced to 15 years.
    
36. The State v Sou Mesak & 2Ors (2009) N3907, per Lenalia J: The offenders held the victim captive for 7 hours and took turns in raping her. After trial they were convicted and sentenced to 18 years even though the offenders did not use any weapons, nor did the victim suffer any injuries and the fact that the offenders were first time offenders.
    
37. The State v Biri Frank (No.2) (2012) N4700, per Ipang AJ (as he then was): The victim there went to a dance with other girls. A fight broke out and she and her friends decided to leave and started walking home. The offender, who the court found to be the main perpetrator followed them - walking about 5 – 6 meters behind. After a while the offender grabbed the victim by the neck, closed her mouth and dragged her away from the road, down a slope to a kaukau garden. He was assisted by three other boys. They stripped the victim naked and took turns in penetrating her vagina and anus. They then inserted an object into her anus, pushing it in and out, and in the process pulled out her intestines. They then left the victim unconscious with serious injuries to her vagina, anus and other parts of her body.
    
38. The offender was convicted after trial for 8 counts of rape and sentenced to a total of 27 years. The trial judge considered this to be a very serious case of aggravated rape hence the very high sentence which was not helped by the fact that the offender did not express any remorse at all.
    
39. The State v Kapil Omba (No.2) (2011) N4250, per Makail J: The offender and his tribesmen while armed with shotguns and bush knives, raided an enemy village. They broke down the door of a house in which the victim and others were and dragged the victim away to the main road. Some distance away from the house, they cut her clothes with bush knives and going further up they forced the victim to the ground and 6 men including the offender took turns in raping her. The victim sustained injuries. The offender was sentenced to 18 years imprisonment.
    
40. Now Parliament had responded to the ever-increasing incidence of aggravated rape and amended the Criminal Code by creating the new offence of Aggravated Rape and prescribing the ultimate penalty of death for it. (Criminal Code (Amendment) Act 2013, No. 6, s 2)
    

STARTING POINT

41. What is clear then from this is that sentences for aggravated rape must be appreciably, if not substantially different from those for simple rape, or rape with circumstances of aggravation which do not feature in the new provision. It should follow therefore that for aggravated rape, the starting point should start above the maximum penalty for simple rape, which is 15 years, whether for conviction on plea or after trial.
    
42. Of course, a starting point below this may be appropriate where the objective seriousness of the offence, based on harm to the victim and the degree of culpability of the offender, are low in a particular case.
    
43. In this case I assess the degree of harm and the culpability of the prisoners to be in the mid-range. I am of the view therefore that the starting point for both prisoners ought to be set below 15 years. I set a starting point for the prisoners at 13 years.
    

MITIGATING/AGGRAVATING FACTORS

44. Both prisoners are first-time offenders and are simple villagers with relatively low levels of education. The victim did not suffer any physical injuries or contract an STI or get pregnant. Both prisoners were also of previous good character. Also, this is not a clear-cut case of lack of consent. The victim appeared to have consented, but such consent was ineffectual because of the condition she was in.
    
45. And as much as I hate to say it, the victim put herself in a situation where she consciously exposed herself to the real possibility of being sexually assaulted. The evidence showed that she had bought the two bottles of drink that she and her friends consumed on their long trek from the logging camp at Sebutuya to their village. And even when an attempt was made to take her away from her eventual assailants, by which time she was already completely drunk and naked, she resisted loudly saying that she was independent and not a child anymore. While that cannot be taken as consent, girls who intentionally get drunk in circumstances like this ought to exercise care and extreme caution before they embark on something that can turn out very badly for them.
    
46. The prisoners were also drunk and, in such situation, could not be expected to exercise good judgment or and control themselves. That, however, does not justify what they did.
    
47. The offence of rape generally is very prevalent, and the prisoners were also intoxicated to varying degrees. These appear to be the only aggravating factors that I can hold against the prisoners apart from the fact that this was a gang rape.
    

HEAD SENTENCES AND ORDERS

48. Now the prisoners ought to be sentenced according to their degree of participation in the commission of this crime. The prisoner Kevin Sakiusa is more culpable. He penetrated the victim twice and stood in some kind of position of trust as he was related to the victim. The victim was his classificatory aunt and he failed to do what he ought to have done in the circumstances, which was to prevent his accomplices like Sisko Peter from raping her. He did not, and instead, gave in to his primal instincts and penetrated her, not once, but twice at different locations.
    
49. The circumstances of this case are not entirely similar to the circumstances in the cases I have cited above. Those cases were in my opinion more serious. The State v Frank (supra) is a bit similar, but the only similarity there with the instant case, is that these are acquaintance rapes and involved parties setting off to a dance initially.
    
50. I am of the view therefore that an appropriate sentence for Kevin Sakiusa ought to be 16 years. I therefore sentence him to 16 years, less the time in custody, which is 2 years 7 months and 20 days, leaving a balance of 13 years 4 months and 10 days.
    
51. For Joel Lai, I find that he was not originally in the group which set out from the logging camp. Rather he came onto the crime scene quite innocently but succumbed also to his primal instincts when he saw the others penetrating the victim and joined them in raping her. He denied penetrating the victim, both at trial and during allocutus, maintaining that he only attempted to do so before he was disturbed by Sakiusa’s father. Be that as it may, he would still be caught by Section 7 of the Code as a principal. Hence either way he would still be held criminally liable.
    
52. I have found that he in fact penetrated the victim without her consent, and for his part an appropriate sentence ought to be 14 years. I therefore sentence him to 14 years imprisonment less 2 years, 7 months, and 20 days in pre-trial/sentence custody. That should leave a balance of 11 years 4 months and 10 days.
    
53. Now finally should I suspend part of the prisoner’s sentences? This offence continues unabated despite stiff sentences by the courts. Hence offenders and like-minded men need to be deterred so that they respect our women - our mothers, daughters, and sisters. For too long our womenfolk have been raped, some in the most horrendous, dehumanising, and degrading manner by men, and the message must be sounded to men that this must stop. But even if it does not, rapists ought to know that they will be visited upon with stiff punitive and deterrent sentences. And for aggravated rape given the clear intention of Parliament, a suspension should not readily be considered and lesser still entertained.
    
54. For that reason, I will not exercise my discretion to suspend any part of the prisoners’ sentences. They will serve the balance of their sentences at Giligili Corrective Institution.
    
55. Those are my sentences and I order accordingly. The prisoners have the right to appeal to the Supreme Court within 40 days should they be aggrieved.

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