State v Kaboanga [2020] PGNC 371; N8634 (17 November 2020)

N8634

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 839 OF 2020

BETWEEN:
THE STATE

AND:
GRAHAM KABOANGA
Prisoner

Madang: Narokobi J
2020: 26^th October and 17^th November

CRIMINAL LAW – sentencing principles for rape – Criminal Code, Division V.7 – Section 347, rape – sentence after guilty plea – sentencing of an offender under Section 347(1) – maximum penalty of 15 years imprisonment –weighing of relevant considerations – suspension of period of sentence considered inappropriate in the circumstances - sentence of seven (7) years.

The offender pleaded guilty to one count of rape contrary to s 347(1) of the Criminal Code. The incident happened in the village on a bush track close to the victim’s garden. The prisoner had in his possession an axe and a bush knife before he grabbed the victim and pulled her into the bush. The weapons were not pleaded as an aggravating factor and therefore he was not charged under s347(2) of the Criminal Code. He committed the offence by forcefully undressing the victim and sexually penetrating her by inserting his index finger into her vagina. The prisoner is a first-time offender, pleaded guilty, expressed remorse and submits for a sentence between 6 and 8 years. The state has however submitted that the aggravating factors outweigh the mitigating factors, which include use of force with offensive weapon, loss of virginity and the victim suffering trauma and shame in her society required a sentence ranging from 10 to 15 years.

Held:

(1) Taking into account the objectives of sentencing, a sentence which punishes the offender and prevents others from committing the crime as well as rehabilitation is necessary in the circumstances.

(2) The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient.

(3) The court can impose a sentence depending on the circumstances of this case by invoking its discretion under s 19 of the Criminal Code (Kumbamong v The State (2008) SC1017 followed).

(4) In this particular case for rape on a guilty plea of a youthful offender, in weighing the mitigating and aggravating factors, possession of offensive weapon in the commission of the crime, prevalence of the offence and the area and the emotional and psychological scar the victim will endure in a close knit society such as a village, the refusal of the victim’s family for reconciliation, and the fear the offence will instil on the women in the village in the daily performance of their chores requires an element of punitive consideration and therefore no period is suspended.

(3) A sentence of seven (7) years in hard labour less period spent in custody is considered appropriate in the circumstances.

Cases Cited:

The following cases are cited in the judgment:

Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Paul Pama v The State (2008) SC1214
Saperus Yalibakut v The State (2006) SC890
The State v Ambrose Masaiong (No.2) (2013) N5240
State v Frank (No 2) (2012) N4700
The State v Irox Winston (2003) N2347
State v James Yali (2006) N2989g
State v Kiaro (2020) N8610
The State v Peter Kuman (2017) N6925
The State v Spinda Kwatou Matagewana (2016) N6420
The State v Stanley Talad (2014) N5737
The State v Robert Timithy (2016) N6441

References Considered:

Bernard Narokobi, The Melanesian Way, rev ed. (Boroko, PNG: Institute of Papua New Guinea Studies; Suva, Fiji: Institute of Pacific Studies, University of South Pacific, 1983)
The Constitution, National Goal 5 “Papua New Guinea Ways”
http://www.femilipng.org/wp-content/uploads/2018/10/PNG-GBV_Strategy-2016-2025_150816.pdf
United Kingdom Sentencing Council https://www.sentencingcouncil.org.uk

Counsel:
Mr. S. Francis, for the State
Ms. D. Ephraim, for the Prisoner

JUDGEMENT ON SENTENCE

13^th November, 2020

1. NAROKOBI J: A INTRODUCTION: Graham Kaboanga (“the prisoner” or “offender”) was charged with one count of rape contrary to s347(1) of the Criminal Code Act Ch 262 in that on 12 December 2019, at Baliau village, Bogia District, in Madang Province, he raped one Natasha Sukua.

2. Under the Criminal Code, subject to Section 19, the maximum penalty for rape under s 347(1) is 15 years.

3. The prisoner pleaded guilty to the charge and I confirmed the provisional plea and entered a conviction of guilty after confirming with his lawyer that the plea was consistent with her instructions. I also satisfied myself that it was safe to accept the plea after going through the court depositions. I now proceed to consider the appropriate sentence for the prisoner, Graham Kaboanga.

B OUTLINE OF JUDGEMENT

4. I address the following areas to help me reach my decision on the issue before me, that is the appropriate sentence for the prisoner:

• Background;
• Objective of Sentencing;
• Sentencing Guidelines;
• Sentencing Discretion;
• Sentencing Trend on Rape;
• Antecedents;
• Mitigating Factors;
• Aggravating Factors;
• Allocatus and Pre-sentence Report;
• Submissions;
• Weighing the Considerations; and
• Orders.
  

C BACKGROUND

5. The prisoner is a 23-year-old male from Baliau Village, Manam Island, in the Bogia District of Madang Province. He is educated up to Grade 1 and is a subsistence farmer. He has four (4) other siblings and he has a positive relationship with his family.

6. During arraignment the following facts were put to him which he responded that he understood and pleaded guilty.

7. The incident occurred at Baliau village, Manam Island of Bogia District, Madang province on 12 December 2019, between 9.00am and 9.30am. Natasha Sukua and her sister were returning from harvesting banana from their garden. At that time, the prisoner was holding a bush knife in his hand and was also carrying an axe on his shoulder. While walking along the track he met Natasha Sukua, and her younger sister. He grabbed Natasha by the shoulder and dragged her into the nearby bush. Natasha tried to shake him off, but he overpowered her, dragging her off the track and into the bush. In the bush, the prisoner forced Natasha to the ground, undressed her and used his right index finger to penetrate her vagina by pushing it in and out.

8. After satisfying himself, he left Natasha and ran away. She then dressed herself and went crying to her parents to report the incident.

9. The penetration was confirmed when Natasha was later taken to the Bieng Health Centre on Manam Island.

10. A day later on 13 December 2019, the prisoner surrendered to the police and was charged.

D OBJECTIVE OF SENTENCING

11. In my decision in State v Kiaro (2020) N8610, I discussed a number of sentencing objectives. These objectives were based on the guidelines issued by the United Kingdom sentencing council. Kapi J (as he then was) expressed it in more detail in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510. His honour said:

“The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasize or achieve one theory of sentencing more than others in certain classes of offences.”

12. The prisoner has committed a very serious offence, rape. The gravity of it is highlighted by the maximum penalty of 15 years. In the rush of the moment, he has allowed his ignoble instincts to get the better of him. No doubt he has realised the scale of his actions and has turned himself in to the police the next day and pleaded guilty to the charge. However, he has left a devasted young woman whose dignity has been taken away in an instant. There are two societal concerns here. Firstly, the devastating effect of gender-based violence in our country which expert commentators based on their studies have opined that it is of epidemic proportions (http://www.femilipng.org/wp-content/uploads/2018/10/PNG-GBV_Strategy-2016-2025_150816.pdf). The second concern is that the offence is committed in a village setting. Narokobi, a noted commentator on Melanesian philosophy in the Melanesian Way describes the characteristics of a village in the following poetic verse:^[1]

“A Melanesian village is a vital and dynamic human institution. It is not the shapeless, impersonal, juristic layout of buildings a modern suburban city is. A village is a cultural unit, an organ of civilisation, technology and enterprise.”

13. I cite this for the simple reason highlighted by Kandakasi J (as he then was) in The State v Irox Winston (2003) N2347:

“If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court cannot arrive at such a sentence.”

14. What I mean to say is that an offence in a village setting, where life flourishes based on close social kinships, the stigma of having lost your dignity will linger for some time, where the victim will bear the psychological scar of the ordeal and will always be conscious of her standing in her society. I know in some areas, when this happens to a young girl, it forces her to leave her village as the thought of reliving the painful memories is too overwhelming. It is effectively a punishment of banishing the victim from her village.

15. Ultimately, what is important is what is described as the principle of proportionality. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction is should not be too severe or too lenient (State v Kiaro (2020) N8610).

E SENTENCING GUIDELINES

16. The maximum penalty for rape under s. 347(1) of the Criminal Code is 15 years imprisonment. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst not in that category, the circumstances surrounding this offence remains very serious.

17. The sentencing guidelines offered in John Aubuku v The State [1987] PNGLR 267 in terms of the head sentences are now regarded as out of date (per Cannings J in The State v James Yali (2005) N2989).

18. I begin by looking at what the court said in Yali in relation to a rape case. There the court held that if the circumstances of aggravation are not charged and proven, then the starting point in a rape case is 10 years. In a case where there is aggravation under s 347(2) of the Criminal Code, the starting point is 15 years. Yali is a National Court decision, but it has been cited with approval in a number of Supreme Court judgements (Paul Pama v The State (2008) SC1214).

19. In Yali the court identified some questions to interrogate the facts to identify mitigating and aggravating factors. In Canning J’s view, a “Yes” answer to any of these questions will assist the court determine the mitigating factors as opposed to the aggravating factors:

“Having identified a starting point for the present case I will now identify the sort of things that should be taken into account when deciding to reduce or lift the sentence (up to the ceiling of 15 years).

1. Is there only a small age difference between the offender and the complainant?
2. Is the complainant well over the age of 16 years and not an old person?
3. Was there only one offender?
4. Did the offender not use or threaten to use a weapon?
5. Did the offender not torture or cause grievous bodily harm?
6. Did the offender not confine or restrain the complainant before or after the commission of the offence?
7. Did the offender not abuse a position of trust, authority or dependency?
8. Was the offender not a member of the same family or clan as the victim?
9. Did the victim not suffer from a serious physical or mental disability?
10. Did the offender not suffer from HIV or AIDS and not pass on a sexually transmitted disease to the victim?
11. Was the offence unplanned, ie was it a spontaneous incident?
12. Did the victim provoke or aggravate the offence?
13. Was the victim not subject to further sexual indignities or perversions, in addition to the act of rape?
14. Did the offender treat the victim with dignity immediately after committing the offence?
15. Did the incident have a minimal emotional impact on the victim?
16. Did the offender give himself up after the incident?
17. Did the offender cooperate with the police in their investigations?
18. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did?
19. Has the offender not caused further trouble to the complainant or the complainant’s family since the incident?
20. Has the offender pleaded guilty?
21. Has the offender genuinely expressed remorse?
22. Is this his first offence?
23. Can the offender be regarded as a youthful offender?
24. Will a lengthy gaol term have an adverse effect on the offender’s family and others dependent on him?
25. Was the offender, prior to the incident, a model citizen, a person of good character or a person with an outstanding record of public service?
26. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”
    

20. I take these considerations into account when determining the mitigating and aggravating factors of this case.

21. The case of State v Frank (No 2) (2012) N4700, Ipang AJ (as he then was) provides some helpful consideration in deciding sentence in a rape case, which I take into account.

RAPE BAND	DETAILS	SENTENCE
1	Offending at the lower end of the spectrum where there are no aggravating factors. No serious violence No abduction No detention or captivity Victim is not very young or very old No prior conviction No physical injuries Guilty plea.	8 – 12 years Depending on circumstances of each case
2	Involves moderate violence Pre- meditation Rape involving more than one offender or an especially vulnerable victim Use of drugs, alcohol or other substances to facilitate commission of the offence Threats to prevent victim reporting the offence Offenders armed with offensive weapons Offenders had prior conviction	13 – 17 years Depending on circumstances of each case
3	Offending with serious additional violence with multiple (3 or more aggravating factors like cruel, callous or violent rape. Offenders sexually transmitted infection or disease Pregnancy or infection results Vaginal or anal injuries requiring medical repair	18 – 25 years Depending on circumstances of each case
4	Multiple offending over considerable periods of time Gang or pack rape Conviction after trial Vaginal or anal injuries requiring medical repair	26 years & above that term of years Depending on circumstances of each case
5	Rape and injuries inflicted causing death Rape whether single or pack or gang rape causing life threatening condition resulting in permanent disability.	Life Imprisonment

22. I state again that it is a general principle of sentencing that the maximum penalty applies only to the most serious instances of an offence - the worst possible case normally encountered in practice. This is an application of the “principle of proportionality” referred to above.

F SENTENCING DISCRETION

23. The court has a discretion to impose an appropriate sentence that is not more than the maximum sentence imposed by law. This discretion is conferred by s 19 of the Criminal Code.

24. In Kumbamong v State (2008) SC1017, the Supreme Court stated as follows:

“67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.”

25. I will therefore weigh out the various factors brought about by the peculiar circumstances of this case and decide an appropriate punishment.

G SENTENCING TREND ON RAPE

26. I conducted a survey of offenders sentenced under s 347(1) of the Criminal Code, which have some semblance of similarity with the present case. This will enable me to decide an appropriate sentence that is comparable to other cases with similar facts.

27. The factors I found relevant for purposes of comparison are, an early guilty plea and cooperated with the police, the offender is a first-time youthful offender, and there was a level aggravation although not specially charged under s 347(2) of the Criminal Code. I have also included a few cases where there was aggravation to get an appreciation of the sentences imposed in those circumstances so as to award a sentence that is within the range of a different category of rape ie rape simplicter as opposed to aggravated rape.

No	Case and Year Decided	Circumstances of the case	Period of sentence ordered
1.	State v Joe Sime, CR No. 1078 of 2004 (2006), Cannings J	Threatened victim with the use of a small axe, on a guilty plea with genuine remorse.	10 years
2.	State v James Yali (2006) N2989	The offender was convicted of the rape of his de facto wife’s sister. He was aged 41 and a member of the National Parliament at the time of the offence. The victim was aged 17 years. The offender acted alone. No weapons were used. There was no aggravated physical violence. The victim was not physically injured. There was a violation of trust. The offender did not surrender but cooperated with the police to a certain extent. He has caused trouble since the incident. There was an exchange of a substantial amount of money following the incident but this fell short of being regarded as compensation. There was a high degree of sexual indignity. He has not expressed remorse. He has one previous conviction, for assault. He is not a youthful offender. The offence was committed while he was a member of the Parliament and Governor of his province.	12 years
3.	The State v Ambrose Masaiong (No.2) (2013) N5240	The prisoner was found guilty of one count of rape laid pursuant to Section 347 of the Criminal Code Amended where the State invoked s.6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act for rape by insertion of his fingers into the vagina of the victim. The prisoner showed genuine remorse.	7 years, wholly suspended.
4.	The State v Stanley Talad (2014) N5737	The offender was found guilty of one count of rape under Section 347(1) of the Criminal Code. The offender was aged 25 at the time, the victim, who has a physical disability, was 17. The offender was living with the victim and her family. The offender followed the victim, who went to a bushy area close to their house to bathe, he then dragged her to another place and penetrated her vagina with his penis, without her consent.	11 years, no term suspended.
5.	The State v Robert Timithy (2016) N6441	Guilty plea. The prisoner and his co-accused had met the complainant on her way to her house. The prisoner held the complainant’s hand and removed her skirts and tights. His co-accused then got onto of the complainant, spread her legs and sexually penetrated her by inserting his penis into her vagina without her consent. The co-accused left after sexually penetrating the complainant. The prisoner then also sexually penetrated the complainant without her consent by inserting her penis into her vagina. Both charged under s 347(1) and (2).	10 years. No term suspended.
6.	The State v Spinda Kwatou Matagewana (2016) N6420	Guilty plea. Spousal rape on complaint that wife was committing adultery. Digital penetration and insertion of a size D battery into the vagina. Pre-sentence report was favourable.	8 years, 3 years suspended upon favourable pre-sentence report.
7.	The State v Peter Kuman (2017) N6925	Offender pleaded guilty to 1 count of Rape contrary to S.347 (1)(2) of Criminal Code as amended. The victim, an adult female was taking a walk 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.	years

28. I consider each of these cases in deciding on the appropriate length of sentence for this case.

H ANTECEDENTS

29. The offender has no history of having previously committed any offence. This is therefore his first offence.

I MITIGATING FACTORS

30. For mitigating factors, I have taken into what the parties’ submissions and also the checklist from Cannings J in Yali and so I determine the following to be the mitigating factors:

• First-time offender;
• Youthful offender;
• Shown remorse;
• Sole offender;
• No sexually transmittable disease contracted;
• One off incident;
• The offender was 23 and the victim was 17, so no big difference in their age;
• Early guilty plea to save the victim from reliving the trauma from the offence;
• No permanent physical injuries; and
• Surrendered and cooperated well with the police; and
• The offender acted alone and not in a group.
  

31. These are the mitigating factors I find after considering the facts of the case, the submissions of counsels and relevant case authorities such as Yali.

J AGGRAVATING FACTORS

32. For aggravating factors, I have also taken into account the parties’ submissions and also the checklist from Cannings J in Yali and so I determine the following to be the aggravating factors:

• Prisoner armed with an axe and a bush knife;
• Used force and dragged the victim to the nearby bushes and sexually penetrated her;
• Loss of virginity and bleeding;
• Trauma and the shame the complainant and her family will go through in a cultural setting of her Manam society that closely observed their traditional cultures;
• No reconciliation;
• No compensation was paid; and
• Prevalence of the offence.
  

33. These are the aggravating factors I find after considering the facts of the case and the submissions of the counsels and relevant case authorities such as Yali.

K ALLOCATUS AND PRE-SENTENCE REPORT

34. In the allocutus, the prisoner stated the following:

• Apologised to the court;
• Apologised to the family of the victim; and
• He is a first-time offender, and asks for court’s mercy, and a lenient sentence.
  

35. On the pre-sentence report, I highlight the following relevant matters.

36. Part A sets out the background information on the accused:

• The prisoner is 23 years old, in a family of seven (7), with five siblings and has a positive relationship with them;
• Completed education up to grade 1;
• Not financially independent;
• Good health;
• Works as a subsistence farmer;
• Is willing to reconcile with the victim’s family;
• James Sukua, the father of the victim stated that the village wanted to take the law into their own hands and retaliate, but he told them to allow the law to take its own course. He further states that the offence has caused great shame to his daughter and she has fled the village to go and leave with her uncle in Port Moresby. They do not want any compensation.
  

37. Part B of the report provides the Probation officer’s assessment of the prisoner:

• No member of the offender’s family was contacted;
• The prisoner’s version of the facts is similar to that put to him during arraignment which I have referred to above;
• The prisoner accepts full responsibility for his actions and appreciates that what he has done was wrong and pleas for mercy and leniency; and
• First time offender.
  

38. Part C of the reports on the suitability of the prisoner for probation. It states that rape is a serious offence and the offender needs to be penalised for this. The report also gives much weight to the views of the victim’s family. There is no clear recommendation for probation.

39. I take the pre-sentence report into account as well and highlight its importance in terms of community attitude and the views of the victim’s family.

L SUBMISSIONS

40. In the prisoner’s submission on sentence he submits that as he has entered a plea of guilty, the benefit of the doubt should be given to him as to his version of facts, including the mitigating factors. The prisoner relies on the case of Saperus Yalibakut v The State (2006) SC890 to support this contention. The prisoner further submits that this is not the worst kind of cases so a term of less than 15 years should be imposed. The prisoner also relies on the case of Yali. Considering all factors, a term between six (6) to eight (8) years should be imposed and the court was invited to exercise its discretion and suspend a portion of the sentence under s 19 of the Criminal Code.

41. On the other hand, the State submits for a sentence above 10 years. In the State’s view, taking into account the case of Yali, if the circumstances of aggravation are not charged and proven as per s 347(2) of the Criminal Code, then the starting point in a rape case should be 10 years. The State further relies on the case of The State v Joe Taliva (2008) N3947, which was a planned rape where the victim became pregnant. On a plea of guilty, the court imposed a sentence of 10 years. The State submits that since the pre-sentence report is not favourable to the prisoner, no term should be suspended and the sentence should be for a period between 10 years and 15 years.

M WEIGHING THE CONSIDERATIONS

42. I have had regard to the facts of this case, the objectives of sentencing, the sentencing tariffs, similar cases, the mitigating and aggravating factors, the antecedent report, the allocutus, the pre-sentence report and the submissions of counsels.

43. After studying a number of cases dealing with rape either aggravated or not, I conclude that this is not the worst case of its kind, and so I do not consider imposing the maximum period under the Criminal Code for this case.

44. Both the State and the prisoner agree that the starting point should be 10 years in a rape case under s 347(1) of the Criminal Code, relying on Cannings J’s views in Yali. The early guilty plea and the cooperation with the police as well as the fact that the prisoner is a first-time offender, having expressed remorse for his crime, has persuaded me to consider a period of less than 10 years. One obvious difference between Yali and this case, is that this is one where the offender pleaded guilty unlike what transpired in the former case.

45. However, I am not inclined to go any further and suspend any of the sentence considering the pre-sentence report highlights the pain the family of the victim is now experiencing and they do not in any way want to reconcile with the offender and his family.

46. The village setting as I quoted the views of Narokobi, is the basic cultural unit and foundation of Papua New Guinea. It behoves the State to protect its basic integrity under National Goal 5 of the Constitution on “Papua New Guinea Ways.” Offences of this nature inflict scars and wounds that will take a long time to heal. It fractures the fabric of our existence as Melanesians. The victim’s innocence has been raptured and her idyllic village life has dissipated. No doubt fear has also been inflicted on the otherwise carefree living of other women in the village. For these reasons I do not suspend any of the sentence.

47. In my view a sentence of seven (7) years in hard labour less period spent in custody will demonstrate the severity of the offence, mete out punishment for the pain it has caused the victim and her family and admonish deterrence to other persons of similar inclinations from descending into such criminal exploits. Since the offender is young and has a number of mitigating factors in his favour, has pushed me to remove three (3) years from otherwise imposing a sentence of 10 years. The offender should be given the benefit of the doubt to live a life free of crime upon serving his sentence and after having the opportunity to rehabilitate himself.

N ORDERS

48. I therefore order that Graham Kaboanga is sentenced to seven (7) years in hard labour less the period already spent in custody.

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused

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^[1] Bernard Narokobi, The Melanesian Way, rev ed. (Boroko, PNG: Institute of Papua New Guinea Studies; Suva, Fiji: Institute of Pacific Studies, University of South Pacific, 1983), 18.