State v Salewa [2019] PGNC 47; N7765 (21 February 2019)

N7765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1346 OF 2018
CR No. 1347 OF 2018

THE STATE

–V-

SIMOLOBE SALEWA
&

MAKALIMA ANA

Daru : Koeget, J
2019 : 13^th, 14^th , 21^st February

CRIMINAL LAW- Indictable offence – section 347(2) of the Criminal Code Act – conviction after trial – sentence according to court’s discretion under section 19 of the Criminal Code Act

EVIDENCE – Identification relevant considerations when determining credibility – pre-existing knowledge of accuseds – no identification parade

CRIMINAL CODE ACT - Sexual offences - Abolition of warning against dangers in conviction on uncorroborated testimony of victim.

Facts

On the night of 1^st July 2018 between nine o’clock and ten o’clock the accuseds Simolobe Salewa in company of Makalima Ana went to Bitowa’s house at Wasua village and confronted the victim. The victim in this case a young primary school girl so to protect her identity and reputation, she will be referred to in this judgment as “victim” or “L.G.S” as these are her initials. They told the victim to come down from Bitowa’s house and follow them as they were going to Adiba village. The accuseds were intoxicated with tuba, an alcoholic drink made out of coconut.

As they walked along Simolobe Salewa forced the victim to have sex without her consent. As soon as he finished having sex with the victim, he called Makalima Ana to have sex with the victim. So Makalima Ana had sex with the victim without her consent as well. The victim was then age 17 years attending Awaba Primary School.

Case Cited:

Nil

Counsel

D. Mark, for the State
L.T. Pailaea, for the Accuseds

21^st February, 2019

Trial

1. KOEGET, J INTRODUCTION: The acuseds are charged with sexual penetration of a female pursuant to section 347(2) of the Criminal Code Act chapter 262 (as amended).
   
2. The accuseds pleaded not guilty to the charge so a trial commenced to determine the allegations.
   
3. At the commencement of the trial, State tendered by consent the following documents:
   
   • - Record of interview of Simolobe Salewa dated 4^th September 2018 marked as exhibit “A”.
     
   • - Record of interview of Makalima Ana dated 28^th of August 2018 marked as exhibit “B”.
     

Sketch plan of Crime Scene for Simolobe Salewa marked as exhibit “C1”.

Sketch plan of Crime Scene for Makalima Ana marked as exhibit “C2”.

Clinic Book of the victim marked as exhibit “D”.

Evidence for the State

4. The Stated called the victim L.G.S. as its only witness in the trial.
   
5. She stated she is from Wasua village, Balimo in the Middle Fly district of the Western Province. In 2018, she was 17 years old and attended Wasua Primary school. She was in grade 9 then.
   
6. She resides with her biological mother at Wasua village in her cousin Betty’s house.
   
7. On the night of the incident, she was in cousin sister Bitowa’s house. When she slept, Makalima Ana poked her from under the house with a stick. He said “I am Simolobe” and he went away. On the second occasion Simolobe went and poked her with a stick from under the house and said “I came to pick you up and take you to my house as my parents have agreed”. Then Bitowa intervened and asked Simolobe: “Do you know L.G.S. has brothers? Did you come to play around with her or to take her away? Then Simolobe replied: “I am man I can take her.”
   
8. Simolobe started to force the victim to come down to the ground. He said “If you do not come down, I will go and get a bush knife and come and cut you”.
   
9. Due to the treat she packed up her belongings and went down the steps to the ground. The accused Simolobe said “we will go to Adiba village”.
   
10. So both walked along Balimo-Wasua highway and when some distance away from Bitowa’s house, the victim saw someone following them so she asked: “who is this person following us?” The accused replied: “Makalima Ana, we were drinking tuba together”, so they changed direction and followed a bush track to Somalila’s house. They sat near a coconut tree and rested. The accused said “we will rest and then walk to Adiba village”.
    
11. However, the accused told the victim to go to Somalila’s pineapple garden and he told her to remove her clothes, she refused but she changed her mind out of fear he might harm her as he was drunk and they were in an isolated place at night. She removed her clothes off and laid on the ground.
    
12. The accused had sex with her and when he finished, he called Makalima to come and have sex with the victim. She was lying on the ground when Makalima was having sex with her and the accused Simolobe was sitting about 6 inches away.
    
13. The victim maintain that she was not happy to have sex with Simolobe because he was drunk but engaged in having sex with him that night as he was drunk and he threaten to cut her with a bush knife. So she obliged as he ask out of fearing for her safety.
    
14. The victim did not agree to have sex with Makalima as he was not her boyfriend.
    
15. In examination in chief the victim was asked the following questions:
    

“Q : when Makalima had sex with you, where was Simolobe?

A : He was present closing my mouth.

Q : What did Simolobe use to close your mouth?

1. : Hand to close my mouth. (Witness indicates right hand palm to close her mouth).
   
17. : Were you happy when Simolobe closed your mouth at the time Makalima had sex mouth you?
    
    1. : No, they were not doing the right thing.”
       

16. After sex, the accuseds left and she was alone at night at the pineapple garden. She walked to Bitowa’s house after the accuseds left.
    
17. In court she identified them seated in the dock. She identified Simolobe as he wore white shirt and Makalima wore grey long sleeve shirt.
    
18. She stated she is Simolobe’s girlfriend but not his wife. The victim was frightened as it was dark and a secluded spot and both men were drunk so she engaged in sex with them out of fear. Should she refuse, they might harm her.
    
19. The clinic book tendered by State contain recording by a medical staff that states: “Cervix – in flame. The victim was sexually assaulted.”
    
20. In the record of interview of Simolobe Salewa dated 4^th September 2018 in answer to question 16, he admits poking L.G.S once from under the house. He admits he drank tuba with Makalima. There are admissions in answers to questions 38, 39, 40, 41, 43, 44 and 45 in the record of interview.
    
21. In answer to question 46, the accused admitted both himself and Makalima drank tuba and planned to have sex with the victim that night.
    
22. In the record of interview of Makalima, in answer to question 29, he admits having sex with the victim while Simolobe stood very close watching. The following are relevant extract of questions and answers in the record of interview:
    

“Q. 32: Makalima, why did you sexually penetrate her?

A : Simolobe told me to have sex with her.

Q. 33 : Why did you listen to Simolobe to have sex with her?

1. : Not at all but I was ordered by Simolobe to sexually penetrate L.G.S.
   

Q.36 : Makalima, to me I see that you and Simolobe planned, conspired to commit this crime on the victim, what do you say on this?

1. : Yes, it was a planned thing we executed. (underlining is mine)
   

Q.42 :

1. : Because we planned so I was told by Simolobe to have sex with L.G.S.”
   

Evidence for Defence

23. The Defence called Simolobe Salewa as its first witness. He stated he is from Wasua village, Balimo, Middle Fly District of the Western Province. He is aged 19 years and resides with cousin brother named Kabali.
    
24. In examination in chief – he stated:
    

“On 1^st of July 2018 at about 8 o’clock, I left the house and went to the lady’s house (L.G.S) and had sex with her outside the house. The female’s other name is L.” I poked her and told her to come down, she carried her small bag and came down the steps to the ground. I told her to come with me to the house. I walked and she followed me along the Balimo highway.

I heard she had relationship with other men so took her out.

We followed the highway then change directions and went to Samalila’s pineapple garden and I told her to remove her clothes off her body. She took off her clothes as she was my wife, she laid down and I had sex with her.

When I finished I told her that Makalima is there and she agreed. I sat beside them and Makalima had sex with her.

When Makalima finished having sex with her, we walked to our respective houses in the village”.

25. In cross examination the accuseds admitted to consuming tuba with Makalima Ana from 8 o’clock in the night to nine o’clock. They drank a 2 litre tuba bottle and carried the other with them to Bitowa’s house. So both were not full drunk that night.
    
26. The accused told the victim that they will go to Samalila’s house, instead they went to the pineapple garden where he told her to remove her clothes off. She agreed and removed her clothes off her body.
    
27. He said: “when I asked her, she agreed as she was my wife”.
    
28. The accused stated he married the victim in 2008 while she was in school and she was aged ten years. He too was approximately ten years of age. However, when the accused realised the evidence about their ages was incredible and unbelievable, he quickly changed his statement and said both were married in 2018 and no pride price was paid to the victim’s parents.
    
29. The accused stated he sat about 150 centimetres (6 inches) away when Makalima had sex with the victim. He did not close the victim’s mouth when Makalima had sex with her.
    
30. The State Prosecutor asked: “If “L.G.S” was your wife, why did you permit Makalima to have sex with her?”
    
31. The accused replied: “Because she went around with other men”.
    

Makalima Ana

32. He is from Wasua village, Balimo, Middle Fly, Western Province. He is 21 years age.
    
33. On the night of 1^st July 2018, he was with Simolobe drinking tuba. They drank 2 litre bottle of tuba. He returned to his house, sat and was smoking when Simolobe called out. He went to Simolobe and the former asked him to escort him.
    
34. Both of them walked along Wasua – Balimo highway and Simolobe went and called L.G.S to come so she came down. They walked pass me and he followed them. They went to Samabila’s house and he sat under the house while Simolobe and the victim went to the pineapple garden.
    
35. Simolobe called him so went and had sex with L.G.S then return to sit under Samalila’s house. He waited for a long time so called out for Simolobe to “hurry up”. Both arrived and three of them walked to their respective houses.
    
36. The victim laid naked on her back face up so he went and had sex with her. The accused Simolobe sat about 50 centimetres (6”) away from them when he had sex with L.G.S. There was no plan to have sex with the victim that night but Simolobe told him to have sex with the victim. So he followed directions of Simolobe.
    

LAW

37. The law in relation to rape is in the following terms:
    

“Section 347. Definition of Rape

(1) A person who sexually penetrates a person without 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”.

Elements of offence

1. a person,
2. sexual penetration,

100. without consent,
     

Analysis of evidence in the trial

38. The victim’s evidence is that both had turns in having sex with her is confirmed by accuseds’ answers to questions in the records of interview and also their oral evidences in the trial as well.
    
39. The accuseds were drunk and both took her on the pretext that they will walk to Adiba village. However, she was taken to Somalila’s pineapple garden were both accuseds had sex with her at night at a place where there were no people within the vicinity.
    
40. The accused Simolobe stated in court that the victim was his wife and they got married in 2008. Both were married at the age of 10 years. This was an incredible, evidence and cannot be believed by any sane person. So he later changed his evidence and said in 2018, he married the victim. This piece of evidence demonstrate that he can change his evidence at anytime it suits his desires.
    
41. He denied that this was planned by himself and Makalima as they sat and drank tuba.
    
42. However, in their respective records of interview, both admitted they planned it and executed it. Their answers to questions in records of interview contradicts the oral evidence in court. So there are serious inconsistencies in their evidence of accuseds.
    
43. Both denied that although Simolobe was merely 6 inches away when Makalima was having sex with the victim, he watched but did nothing physically. By contrast the evidence of the victim is that when Makalima was having sex with her, Simolobe used his right hand palm to close her mouth. This account is believable and explains why Simolobe sat only 6 inches away from Makalima and the victim.
    
44. The accuseds evidence have serious inconsistencies and cannot be relied upon.
    
45. I observed their demeanour in court and in my view they told lies and painted a picture that the victim consented to having sex with them and she willingly participated even though they were drunk.
    
46. In cross examination they stated after the sex, all left the scene together but later separated and went to their respective houses.
    
47. But later changed evidence and admitted they left the scene and victim was left alone at the scene. So they were deliberately lying in court during the trial.
    

Findings of Court

48. Both accuseds are untruthful witnesses. They deliberately lied on oath. Their oral evidence are inconsistent with answers in the records of interview.
    
49. The only credible evidence is that of the victim. She was threaten by Simolobe at Bitowa’s house on the night of 1^st July 2018, so fear was instilled in her and she scummed to the threat and followed Simolobe. She was fooled that she will go with them to Adiba village as Simolobe’s parents want her to be his wife. But instead she was led to the pineapple garden where the accuseds raped her.
    
50. So I believe the victim’s evidence as the truth of what the accuseds did to her on the night of 1^st July 2018. So the accuseds had sex with the victim without her consent in this case. The State has proved its case against the accuseds beyond reasonable doubt.
    

VERDICTS

51. The accuseds are found guilty of rape of the victim pursuant to section 347(2) of the Criminal Code Act chapter 262 (as amended).
    

ISSUE

52. The issue is what is the appropriate sentence the court should impose upon the prisoners?
    

SENTENCE

On allocatus Simolobe stated

53. “I brought shame and embarrassment to myself and my family so I apologise to them. I apologise to the victim and her family for what I did to her.
    

I am a first time offender”.

Makalima Ana stated the following:

54. “I brought shame and embarrassment to myself and family. So say sorry to them.
    
55. I apologise to the victim and family for what I did to her. I am a first time offender and my father is very old”.
    

PERSONAL PARTICULARS

Simolobe Salewa

56. He is 19 years of age but was 18 at the time he committed the offence. He is from Wasua village, Balimo, Middle Fly District of Western Province. He is a subsistence gardener.
    

Makalima Ana

57. He is 21 years of age and comes from Wasua village, Balimo in the Middle Fly District of Western Province. He is married with 2 children and children are in the village with their mother. He is a subsistence gardener.
    

AGGRAVATING FACTORS

Simolobe Salewa

58. He was intoxicated with tuba at the time he committed the offence of rape. He threaten the victim at Bitowa’s house and instil fear in her.
    
59. He verbally forced the victim to remove clothes off her body in a secluded area at night and had sexual intercourse without her without consent.
    
60. He closed victim’s mouth with his hand palm when Makalima Ana had sexual with the victim. Such offence is prevalent in the country.
    

Makalima Ana

61. He was drunk when he committed the offence. He had sex with the victim in a secluded place at night without her consent. Such offence is prevalent in the country.
    

MITIGATING FACTORS

Simolobe Salewa

62. He is a first time young offender. He is remorseful and apologise to the victim and family. The victim suffered no permanent disability and she is well.
    
63. He has spent 7 months 2 weeks and 4 days in custody awaiting disposal of the case.
    

Makalima Ana

64. He is a first time offender. He apologise to the victim and family. The victim did not suffer any permanent physical disability. She is well now.
    
65. He has spent 7 months 2 weeks and 4 days in custody awaiting disposal of the case.
    

SENTENCE

66. The prisoners are convicted of aggravated rape of a female. Both drank tuba and discussed how to commit the offence upon the victim. A plan was devised and both effected. They aided and abetted each other in the commission of the offence.
    
67. She was led to believe that they will to walk to Adiba village and she will be safe even though the prisoners were drunk.
    
68. Instead the prisoners change directions and led her through a bush track to the pineapple garden when both had turns in having sex with her.
    
69. The prisoner Simolobe Salewa closed the victim’s mouth when Makalima had sex with her.
    
70. She was left alone at the secluded spot at night after both prisoners have satisfied their sexual desires.
    
71. In my view both acted like animals and had no respect or even concern for her safety after intercourses. The maximum sentence for such offence is imprisonment for life.
    
72. The sentence is subject to the discretion of the court under section 19 of the Criminal Code Act. So in the exercise of the court’s discretionary, the maximum sentence will not be imposed upon the prisoners. A fixed period of sentence will be imposed in the give circumstances of the case.
    
73. The prisoners are sentenced to be imprisoned for 20 years each in hard labour. Their pre-trial custodial periods are ordered to be deducted so the final sentences are as follows:-
    

Simolobe Salewa	–	Sentenced to be imprisonment for 20 years in hard labour less 7 months, 2 weeks, 4 days.
Balance:		To serve 19 years, 4 months, 1 week, 3 days to be served at Daru Corrective Institute Services.
Makalima Ana	–	Sentenced to be imprisonment for 20 years in hard labour less 7 months, 2 weeks, 4 days.
Balance:		To serve 19 years, 4 months, 1 week, 3 days to be served at Daru Corrective Institute Services.

__________________________________________________________
Public Prosecutor: Lawyer for State

Public Solicitor: Lawyer of Accused