State v Rex (No. 2) [2020] PGNC 399; N8661 (12 November 2020)

N8661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 112 OF 2013

THE STATE

V

TERRY REX
(NO. 2)

Kimbe: Batari J
2020: 2^nd September, 12^th November

CRIMINAL LAW - sentence – robbery – rape – group of young men raided home at night, abducted pregnant victim and sexual violated her – seriousness of – deterrent sentences called for – sentences – cumulative – totality terms of 8 years for robbery 10 years for rape imprisonment appropriate.

Cases Cited

James Meaoa v The State (1996) SC504
John Aubuku v The State [1987] PNGLR 267
Lawrence Hindemba v State (1998) SC593
Philip Kassman v The State (2004) SC759.
Public Prosecutor v Don Dale (1998) SC564;
Sinclair Matagal v The State SCRA No. 95 of 1996 (4 June, 1998)
Tau Jim Anis v The State (2000) SC642
The State v Dii Gideon (2002) N2335
The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi & Isaac Sip (No 2) (2004) N2543
The State v Lucas Soroken Sembengo (2006) N3030
Thomas Waim v The State (1997) SC519

Counsel

R. Luman, for the State
D. Kari, for the Offender

DECISION ON SENTENCE

12^th November, 2020

1. BATARI J: Terry Rex, on 21 September 2020 the Court convicted you of aggravated armed robbery pursuant to s 386 (1), (2)(a)(b)(c) and rape pursuant to s 347 (1), (2) of the Criminal Code. Both offences carry the maximum terms of life imprisonment. You are sentenced on the following.
   
2. The facts of your guilty finding are canvassed in the published decision on verdict. In brief, the circumstances of your offence are that on the night of 14 and 15 August 2012, at Kapore Land Settlement Scheme (LSS) division, Kimbe, WNB Province, you and others in your company robbed one William Tomaono at his home with treats of violence and actual violence. You also abducted and raped his pregnant wife. The couple were initially accosted at their home around midnight armed with knives. When Tomaono did not response to your demands, you threatened to burn his home. You then entered their home and forced Tomaono down the steps before stealing from him, various household properties worth over K1,000.00. During the robbery, Mr. Tomaono sustained a knife wound to his left hand. You also abducted his wife Esther who was then some months pregnant and gang raped her. The victims recognised you, resulting in your detention and arrest on the early morning of 15 August 2012.
   
3. Robbery is sadly one of the most recurring crimes of violence committed these days. And similarly, so is rape and other forms of sexual violence against children and our womenfolk. Just about anywhere in the country today, someone or some corporate body is robbed of properties, of small or vast amounts and in some instances as in this case, physical harm is done to the victim. The worst aspect is where rape is committed during the robbery as in this case.
   
4. The frequency of incidences of robberies has been a real national concern because of the high risk of actual violence to the victims and the substantial amounts of properties being lost. The economy of the country also suffers when the frequency robbery forces business houses to close their doors or are keeping investors away.
   
5. This case involved robbery of a home at night by a group of men armed with knives, during which actual violence and rape were committed. I will consider the robbery incident first followed by the rape aspect.
   
6. Robbery of a home in the night is very serious because of the sudden and frightening intrusion into the privacy of the home. A man’s private home is supposed to be his safest haven, a place of quiet and secure retreat whether in town, city or in the LSS blocks or rural villages. The individual is entitled to privacy in the sanctuary of his home, from unwanted trespassers, prowlers and burglars. When intruders are armed with weapons, the security and safety of the occupants is immediately placed in danger. When such offences are happening frequently, the people look to the Courts to punish the criminals.
   
7. For the robbery of a home, the highest penalty is warranted as such robbery is considered by the Courts as the most serious of all robbery cases. If such robbery as in this case, is committed in the night by a group of armed men, the starting point for sentence has been 10 years to be adjusted downward or upward according to mitigating factors and aggravating factors. Where circumstances of aggravation such as actual violence are present, sentences up to 15 years and 20 years have been held to be appropriate: Public Prosecutor v Don Dale (1998) SC564; Tau Jim Anis v The State (2000) SC642; Philip Kassman v The State (2004) SC759.
   
8. The rape incident here was committed in circumstances of aggravation namely: the victim was pregnant; she was abducted blind-folded and carried to the oil palm trees and repeatedly gang raped. In the circumstances, I adopt the following sentiments from the case of Lawrence Hindemba v State (1998) SC593 where the Supreme Court stated:
   

"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."

9. A case of similar circumstances to this, is reported in, The State v Dii Gideon (2002) N2335, where the Court imposed a sentence of 25 years for a pack rape by three (3) men on a three months pregnant overseas visitor with threats of violence and use of weapons after a home invasion and robbery.
   
10. In, The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi & Isaac Sip (No 2) (2004) N2543, the court imposed sentences of 18, 20, 22 & 25 years for a repeated gang rape by 10 men. The penalties were meted out according to the degree of violence and input in the crime they committed. They were armed and the victim was forcibly abducted.
    
11. In a case from Bialla/Kimbe, the court convicted three men after a trial of two charges each: (a) armed gang robbery of a family home; and (b) rape of a female occupant of the home, while her husband and children were in the house, the Court sentenced each offender to 12 years imprisonment on the armed robbery charge and to 13 years on the rape charge. Because there were separate offences and, in principle, should be served cumulatively, it became apparent in applying the totality principle, the court would be imposing a crushing sentence so, the sentences were accordingly adjusted to align with the totality principle to impose the total sentence 17 years imprisonment for each offender: The State v Lucas Soroken Sembengo (2006) N3030.
    
12. Your case is like that case. The nature of rape charged on the indictment against you was sexual penetration by inserting part of your body (finger) into the vagina of the victim without her consent. That is no lesser involvement in a repeated gang rape. However, it is in your favour that the evidence of any vaginal injury was not available to the Court and, that at the end of the rape ordeal when others had left, you turned good Samaritan to assist the exhausted victim put her clothes back on.
    
13. Your lawyer Mr Kari has also spoken well on your behalf and had pointed to several factors I should take into account. These are; your young age in your 20s with a one-year old daughter; you are a first-time offender; you have spent time in custody intermittently. The aggregated pre-trial custody period is substantial, I will deduct that period from the head sentence I am about to order.
    
14. Mr Kari has submitted; this type of robbery is now getting sentences of 15 to 18 years. And similarly, the sentences for rape. State Prosecutor, Mr Luman has asked for a sentence in the range of 30 to 35 years applying the cumulative and totality principles. Counsel submitted sentences are now in that range for robbery of homes. For rape, sentences of 12 to 25 years are now imposed for similar type offences.
    
15. From all that I have said, on the balance of the submissions, the public interest that those with anti-social behaviour who offend against the society should be punished and on the other hand, the personal interest of the accused, a sentence within the range of 18 years to 25 years should meet the justice of this case.
    
16. On the robbery conviction, a sentence of 13 years imprisonment should be appropriate. For the rape conviction, 14 years. The different nature of the offences warrants cumulative sentences. However, I consider that the final outcome will be too crushing on you as a first-time young offender.
    
17. So, adjusting the sentence against the totality principle, I consider that 8 years for robbery and 10 years for rape cumulative sentences of 18 years will be appropriate. Minus your time in custody of one year and seven months, the sentence you will serve is 16 years 5 months IHL.

Sentenced accordingly

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