State v Max (No 2) [2020] PGNC 518; N9945 (26 November 2020)

N9945

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1346 OF 2016

THE STATE

V

BILLY JOE MAX
(NO 2)

Kokopo: Suelip AJ
2020: 9^th, 24^th September & 26^th November

CRIMINAL LAW – sentence – rape s.347(1)(2) Criminal Code – prisoner threatened complainant with knife – forcefully removed her clothes – sexually penetrated her – heavy vaginal bleeding – hospitalized and given blood transfusion same day – sentence of 12 years – less custody time.

Cases Cited

John Aubuku v. State [1987] PNGLR 267
Lawrence Hindemba v. State (1998) SC593
James Mora Meoa v. State [1996] PNGLR 280
Robert Solomon v State (2007) SC871

Counsel

L Rangan, for the State
N Katosingkalara, for the Prisoner

SENTENCE

26^th November, 2020

1. SUELIP AJ: On 9 September 2020, the prisoner of Tokua village, Bitapaka LLG, Kokopo District, East New Britain Province, was convicted on one count of rape pursuant to section 347(1)(2) of the Criminal Code.

2. This is now my ruling on sentence.

Facts

3. On 29 April 2016 between 1 pm and 2 pm, at Tokua, Bitapaka, Kokopo in East New Britain Province, the complainant, Roselyn Ereman was returning from the market and walking along the road heading to her home. Behind her, she did not know that prisoner was walking (she knew him because they both live at the area). To her surprise, the prisoner quickly approached her and grabbed hold of her hand. He pulled her into the bushes. She tried to remove his hold off her, but he was too strong. She tried to scream but he covered her mouth with his hand. He pushed her to the ground, removed her clothing and sexually penetrated her by introducing his penis into her vagina. He was rough which thus caused her pain. He left after having sex with her. She laid there on the ground feeling dizzy and weak. She laid there for a while to regain her strength. When she did, she got up, wore her clothes, and walked slowly to her house. She was bleeding heavily so the same night, she was taken to Vunapope Hospital where she was examined and treated.

4. His actions contravened section 347(1)(2) of the Criminal Code in that he sexually penetrated the complainant without her consent and in the circumstance, she sustained injuries in her vagina and had to be brought to the hospital.

The offence

5. Section 347(1)(2) of the Criminal Code Act provides:

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

Penalty: Subject to Subjection (2), imprisonment for 15 years.

(2) Where the offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

6. The maximum penalty for this offence committed in circumstances of aggravation is life imprisonment, subject to section 19.

Personal particulars

7. A pre-sentence report and a means assessment report were prepared by the Probation Officer. In the pre-sentence report, it shows that the prisoner is 35 years old. He comes from Tapo Village, Bitapaka LLG of Kokopo District. He is married with 3 children, and he lives with his wife and children at Toburtuve, a neighboring place of Tapo village. He has two sisters and he completed school up to grade 5.

8. In the pre-sentence report, the mother of the prisoner, his wife, and his cousin brother say he is a good person who keeps to himself and has no criminal background. They say they do not want him to go to prison and they are willing to help pay compensation to the victim if the Court so orders. However, the means assessment report is not favorable to him in terms of support to pay compensation as his family depends entirely on subsistence farming and his small cocoa block. Further, the ward member and the church pastor also agree that the prisoner participates in community programs, and he attends church faithfully. Both individuals are willing to assist him in community and church programs for rehabilitation purposes.

9. There is nothing in the report concerning the victim as she did not come forward to give her views. Hence, I am unable to know her position.

10. Regarding prior convictions, the antecedent report records no prior convictions.

11. During allocutus, the prisoner said he respected this Court and will obey whatever decision it makes but he begged for the Court’s mercy to put him on probation.

Mitigating and Aggravating factors

12. To consider an appropriate sentence, the following mitigating and aggravating factors are considered. In his favour, the only mitigating factor is that he is a first-time offender. Against him, the aggravating factors are:

(i) he used a weapon and issued a threat against the victim.

(ii) the victim sustained severe injuries in her vagina and was hospitalized for her injuries.

(iii) the victim will suffer emotional and psychological trauma for the rest of her life for being raped.

(iv) he did not co-operate with the police and deny committing the offence.

(v) the prevalence of the offence in the society and especially in the East New Britain Province.

Submission on sentence

13. The State concedes that this case is not the worse type to warrant the maximum penalty of life imprisonment. However, the State argued that this is still a serious case considering the seriousness of the injury caused to the victim. The State argued further that the aggravating factors outweigh the mitigating factors in this case therefore this case should attract a sentence of more than 15 years imprisonment. Considering the comparable cases submitted, the State says that an appropriate sentence would be one within the range of 17 to 20 years imprisonment.

14. On the other hand, the prisoner’s counsel argued that the pre-sentence report speaks favorably of his client’s good character with no criminal record, thus counsel recommends a suspended or partly suspended sentence. Further, counsel argued that in consideration on the relevant factors in the circumstances of commission of the offence before this Court, and in light of the factors in the comparable cases he cited, he says that 12 years is the appropriate head sentence for his client in this case.

15. Counsel for the State referred to several cases. The first is John Aubuku v. State [1987] PNGLR 267 where the Supreme Court sets the guidelines for sentences in rape cases and said the offence is a serious one and such it requires an immediate punitive custodial sentence starting at 5 years. It held that a much higher sentence should be imposed where there are aggravating factors such as the use of a bush knives or other dangerous weapons.

16. Counsel further said that subsequent cases have imposed sentence terms much higher than the guidelines set in the John Aubuku case. The current maximum sentence for rape with aggravating factor and of the worst type is 15 years as in the Lawrence Hindemba v. State (1998) SC593 and 14 years in James Mora Meoa v. State [1996] PNGLR 280. Additionally, counsel said that the judgment in the Lawrence Hindemba case is the latest response by the Supreme Court, to calls by the community for a tougher penalty. In that case, the National Court imposed a 10-year sentence for an aggravated rape of a small 10-year-old girl. The appellant in that case, used a pocketknife to threaten and have sex with the girl by force. The victim was under immense pressure and her vagina was caused to bleed. The Supreme Court dismissed the appeal and in the exercise of its powers under section 23(4) of the Supreme Court Act (Ch. 37) increased the sentence to 15 years. Counsel also referred to Robert Solomon v State (2007) SC871 wherein on 30 August 2007, the Supreme Court reduced sentence of 20 years on each count of rape (3 counts in all) by 12 years. This resulted in 3 sentences each of 8 years to be served consecutively, a total of 24 years.

Consideration

17. The circumstances of this case are similar to the Lawrence Hindemba case. The difference is that the victim in that case is a 10-year-old girl while in this case, the victim is an adult woman over the age of 30 years. Nonetheless, the injuries sustained by the victim in this case was severe that required her to be hospitalised.

18. In Robert Solomon v State (supra), the Supreme Court increased sentence for aggravated rape to 8 years. Hence, the sentencing range for aggravated rape is 8 to 15 years.

19. In this case, the aggravating factors outweighs the mitigating factors. Further, the pre-sentence report is favourable to the prisoner but because the victim and her family did not participate in the report, it is unknown as to how they view his release or if they wished to be compensated. I therefore will not consider any compensation payment.

20. Considering all the above, I impose a sentence of 12 years.

21. The prisoner was initially arrested on 9 May 2016 and then released on bail by the District Court on 8 August 2016. He has spent 2 months and 29 days in custody. He was rearrested on a Bench Warrant on 19 June 2019 and to date, he has spent 1 year and 8 months in custody. This period will be deducted from 12 years.

Orders

22. The Orders of the Court are:

(i) He is sentenced to 12 years imprisonment.

(ii) His presentence term of 1 year and 8 months is deducted.

(iii) He will serve the balance of his sentence of 10 years and 4 months at Kerevat Correctional Institution.

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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner