State v Malas [2020] PGNC 506; N8545 (9 September 2020)

N8545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1362 OF 2018
THE STATE
V
JAMES MALAS

Kokopo: Suelip AJ
2020: 16^th, 30^th July, 10^th, 12^th August & 9^th September

CRIMINAL LAW- sentence -plea-guilty- rape s347(1)(2) of the Criminal Code Act - prisoner lied to and lured complainant to his parents' house to get money- walked past gate into parents' house and onto a bush track - grabbed complainant's hand and showed knife - complainant resisted - prisoner cut 2 centimeter wound on complainant's skin - sexually penetrated complainant twice - took complainant back to Kerevat - sentence of 12 years
Cases Cited

Goli Golu v. State [1979] PNGLR 653
Lawrence Hindemba v The State [1998] SC593
State v Omba (No.2) [2011] PGNC 320
State v Mongi [2011] PGNC 88
State v Minja [2010] PGNC 174
State v Yochie [2010] PGNC 108
State v Timothy [2016] N6441
John Aubuku v The State [1982] PNGLR 267
Thomas Waim v The State (1997) SC519
The State v Tomitom (2008) N3301
The State v Kekene (No.2) [2014] N5768
State v. Peter Kaudik [1987] PNGLR 201

Legislations

Section 347(1)(2) of the Criminal Code Act Section 349A of the Criminal Code Act
Counsel

J Batil, for the State
N Katosingkalara, for the Prisoner

SENTENCE

9^th September, 2020

1. SUELIP AJ: On 16 July 2020, James Malas of Napapar No. 5 Village, Central Gazelle LLG, Gazelle District, East New Britain Province was indicted for one count of aggravated rape. He appeared from custody and pleaded guilty to the charge. The circumstance of aggravation is pleaded on the indictment where the prisoner used a knife (weapon) to threaten and cut the complainant's skin.

2. Parties filed submissions on sentence and presented oral submissions in Court on 12 August 2020.
3. This is now my ruling on sentence.
Facts

4. The facts are that on 8 September 2018 between 1 pm and 2pm, the prisoner was at National Agriculture Research Institute (NARI) at Kerevat, East New Britain Province. It is alleged that the prisoner had tricked the complainant namely Oripa Rupen, a 21 year old female at Kerevat town that her father had made a deal with the prisoner's parents and he had a share of money with his parents at NARI, and that she had to go with him to collect that money.

5. The complainant believed the prisoner and so followed him to NARI. When they arrived at the NARI gate, the prisoner led the complainant further onto another road which led to a bush track. He lied to her that the bush track was a short cut to his parent's house.

6. They walked further through that bush track until it came to an end and there were no houses nearby. There, the prisoner turned and grabbed hold of the complainant's left hand. The complainant realized what the prisoner was trying to do so she screamed and struggled to free her hand. The prisoner then removed a short knife from his basket and showed it to her and threatened to stab her with it if she continued screaming or tried to run away.

7. The complainant continued to scream and so the prisoner hit her with the knife and cut her shirt and her skin. Still holding the knife, he forced her to the ground and told her to remove her clothes. He told her to kneel and he also knelt down behind her. He then sexually penetrated her vaginally from behind, with his penis. He then told her to sleep face up and he again sexually penetrated her by introducing his penis into her vagina.

8. The actions of the prisoner contravened section 347(1)(2) of the Criminal Code Act in that he sexually penetrated another person without her consent and the offence is aggravated when the prisoner used a weapon against the complainant.
The offence
9. Section 347 of the Criminal Code states:

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

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/or life."

10. The circumstance of aggravation in the offence which he pleaded guilty to is provided under section 349A of the Criminal Code, produced hereunder:

INTERPRETATION

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where - ...

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

11. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. The onus is on the prosecution to prove that the offence amounts to rape pursuant to Section 347(1)(2) of the Criminal Code.

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12. I have read the depositions and in particular the Statement of the witness, Oripa Rupen dated 10 September 2018, both the Pidgin and English version; the Medical Examination Report of Oripa Rupen from Nonga Rural Hospital dated 12 September 2018 and the Record of Interview of the prisoner, both Pidgin and English versions in Question and Answer no. 22 where the prisoner admitted having sex with the complainant. As there are sufficient evidence in the depositions, I confirm the plea of guilty.

Issue

13. What is the appropriate sentence?

Antecedent report

14. The prisoner is about 39 years and comes from Napapar No.5 Village, Gazelle District of East New Britain Province. He is not married. He used to live at Kerevat Township. His parents are still alive and live at Napapar No.5. He is the first-born son amongst his other 5 siblings. He completed Grade 6 at Kerevat Community School, then obtained a Certificate in Carpentry at Woohlnough Vocational Training Centre in 2003.

15. He was employed with IBM as a carpenter from 2004 to 2006. He was then employed as a crew of bulldozer with RH PNG Ltd at Rano in Pomio District from 2016 to 2017. Thereafter, he ran his PMV service until he was apprehended by the Police for this offence.

16. He is a first-time offender with no prior convictions. He was arrested on 14 September 2018 and detained in custody for 1 year, 11 months and 25 days.

Allocutus

17. The prisoner apologised to the State and to this Court and admitted that what he did was wrong, and he is very sorry. He also apologized to Oripa Rupen and her family and relatives. He said the knife that he used was a small knife and the cut was only about 2 centimeters. He begged for the Court's mercy so he can compensate the victim for K5,000. He said this is his first time to do such wrong and he promised not to do it again. He begged the Court for a minimum sentence.

Submission on sentence

18. Both counsels agree that this is not a worse type case to warrant the maximum penalty, which must be reserved for worst type case. See Goli Golu v The State [1979] PNGLR 653.

19. However, the State submitted that this is still a serious case considering the aggravating factors where the victim was deceived, taken to an isolated area, threatened with a weapon, and forced to submit to a sexual act.

20. Counsel for the prisoner argued that the starting point is 14 years and relied on Lawrence Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) where the Supreme Court said:

" ... rape with aggravating circumstances such as young age of victim, injury to victim, abduction, and use of force or threatened force attracts sentence at the range of 14 years to 18 years."

21. Counsel also cited rape cases with circumstances of aggravation with a starting point at 15 years, in State v Omba (No.2) [2011] PGNC 320, State v Mongi [2011] PGNC 88, State v Minja [2010] PGNC 174 and State v Yochie [2010] PGNC 108.

22. Counsel for the prisoner further relied on State v Timothy [2016] PGNC 246; N6441 (20 July 2016) in Alotau where Toliken J set 12 years as starting point for a rape case with circumstance of aggravation where the prisoner was in the company of another juvenile who both took turns in sexually penetrating the complainant.

23. Counsel submitted that although this case involved circumstance of aggravation where the prisoner cut a 2 centimeter wound on the victim, it is of lesser degree and has the effect of reducing starting point and the appropriate starting point is 14 years.

24. Counsel further submitted that even after raping the victim, the prisoner took the victim safely back to Kerevat Town where he had taken her from. With that view, counsel submitted that he was not only selfish and irresponsible on the victim, rather he ensured the victim is not exposed to further assault or possible rape by other persons.

25. Though he sexually penetrated the victim two times, it was submitted that it caused little amount of soft tissue injuries to her vagina and the victim was not infected with STI or HIV nor did she fall pregnant.

26. Counsel argued that the prisoner should be sentenced to 7 years imprisonment.

27. As sentencing guidelines, the State Counsel cited the following case precedents:

(i) In John Aubuku -v- The State [1982] PNGLR 267, the Supreme Court stated that an offender who commits rape without aggravation should be sentenced to 5 years and upwards and for those who commit rape with circumstances of aggravation, life imprisonment should be considered. These guidelines have now been considered as outdated given the increase in such crime. In Thomas Waim -v- The State (1997) SC519 and Lawrence Hindemba -v- The State (1998) SC593), the Supreme Court expressed sentiments as to the prevalence of the offence and the need to increase the sentence set in John Aubuku to sentences that are strong, punitive and deterrent. Over the past years since the late 90's, Courts have therefore varied and increased the recommended tariffs in John Aubuku.

(ii) In The State -v- Tomitom (2008) N3301, His Honor, Kandakasi J observed that sentences for rape has increased in recent years whereby aggravated rape now attracts sentences over 15 years imprisonment, and more serious cases involving gang rapes after abduction of a victim and the use of weapons have increased sentences of up to 25 years.

(iii) In The State -v- Kekene (No.2) [2014] PGNC 140; N5768, His Honor, late Lenalia J also observed that the sentencing trend in more recent rape cases have increased and factors such as: victims are of young ages; or where there has been threatened force on and injuries caused to the victim; or where there has been abduction; should attract sentences in the range of 15 years to 20 years. His Honor, stated that in order to achieve the intention of the parliament, Courts need to follow Lawrence Hindemba -v- The State (supra) with some adjustment as to the circumstances and extend the range upward where there are multiple factors of aggravation; which has been the trend followed so far in many cases.

28. As a comparable case with similar circumstance, the State counsel relied on The State -v-Kekene (supra), the prisoner was found guilty of 3 counts of aggravated rape pursuant to s.347(2) of the Criminal Code. The evidence on trial was that he had allured the victim into a banana patch on the top of a hill, used a small bush knife to threaten and thereafter sexually penetrated her against her will. After releasing his sperm, he rested for some time and then repeated sex two more times. Whilst doing what he did to the victim, he used his hands to block the mouth of the complainant to stop her from calling out, and at the same time threatened to cut her if she shouted. The Court imposed a sentence of 15 years imprisonment for Count 1, 8 years for Count 2, and 9 years for Count 3. Applying the totality principle, sentences for Counts 2 and 3 were to be served concurrently with the 15 years sentence for Count 1.

29. The other comparable cases cited by counsel are more distinct than the circumstances of this case in that there was a breach of trust between the offender and the victim in all the cases.

Whether this is a worst case

30. Both counsels agree that this is not a worst type case and so it does not attract the maximum penalty of life imprisonment.
Pre-sentence report

31. In the Pre-Sentence Report ("report") dated 12 August 2020, the family of the deceased do not want the prisoner to go to jail. The prisoner has a child aged 13 years old and doing grade 7 at Gelegele Waterhouse Primary School.

32. Generally, the prisoner's parents and the Catholic catechist said they are surprised that the prisoner committed this offence as he is a person of good character, quiet nature, and a loner. They said further that the prisoner does not create any problem in the community and the community like him very much. The only unfavourable comment is from the prisoner's father who said the only weakness for his son is that he married too many times and did not settle with only one partner. He said the prisoner married 7 times already. His family is willing to help pay compensation if a lenient sentence is given to the prisoner.

33. The author of the report, Mr. Noel Awagalas has assessed that the prisoner is not a threat to the community but because of the seriousness of the offence, he is considered dangerous and a threat to others especially towards the young girls and women in the community.

34. The victim's views were not engaged in the report as she failed to show up at the Probation Office for her participation. This may mean she is not interested in this case, but it does not assist this Court to consider an appropriate sentence for the prisoner.

Sentence

35. Nevertheless, the probation officer has considered all the factors and those he had interviewed and recommended that the prisoner is a suitable candidate for probation with strict conditions to be imposed and compensation to be paid.

Aggravating factors

36. Against him, the aggravating factors are the accused used a weapon and issued a threat against the victim. Further, there was violence used when the victim was forced to the ground and cut with the knife. Moreover, the victim was sexually penetrated twice in two different positions. The victim will suffer mental/psychological trauma for the rest of her life of being raped, disrespected, her privacy invaded, her dignity and feeling of self-worth taken away from her. Further, the victim will inevitably suffer lifelong social and psychological stigma of being raped and the prevalence of the offence in the society, especially in the East New Britain Province.

37. The aggravating factors outweigh the mitigating factors. Although the prisoner showed genuine remorse, he used a knife to threaten the victim and force her to submit to sex without her consent. He even cut her skin, a 2- centimeter wound to instil fear in her. The victim will suffer lifelong social and psychological stigma of being raped.

Mitigating factors

38. The prisoner is a first-time offender and has no prior convictions. He pleaded guilty hence saving State's resources and the Court's time in conducting trial. Further, it is in the prisoner's favor that he co-operated with police upon apprehension and made early admissions in the Record of Interview.

39. In the Means Assessment Report, the prisoner said he is willing compensate the victim K3,000 with 400 fathoms of shell money, a pig that cost K500 and K200 worth of garden food. His means of earning money is by subsistence farming, selling of cocoa beans and selling his PMV which he bought for K53,000.

40 Having considered submissions from counsels, I agree with the State's

submission that this case calls for a strong punitive sentence and a custodial sentence is appropriate on the basis of the prevalence of such offence in the society as a general deterrence as well as for personal deterrence. See State v. Peter Kaudik [1987] PNGLR 201 where the Court held that:

"the offence of rape is a serious crime which calls for immediate punitive custodial sentence than wholly exceptional circumstances".

41. I am therefore satisfied that the appropriate penalty for this prisoner of the charge of rape is a sentence of 12 years.

42. Section 3(2) of the Criminal Justice (Sentence) Act 1986 gives the power to this Court to deduct the prisoner's pre-sentence custody time. He was arrested on the 14 September 2018 and detained in custody for 1 year, 11 months and 25 days. This period will be deducted.

Orders

43. I order as follows:

(1)The prisoner is sentenced 12 years imprisonment.

(2) His custody period of 1 year, 11 months and 25 days is deducted.

(3) He shall serve balance of his sentence at Kerevat Correctional Services.

____________________________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for Prisoner