State v Kaski (No 2) [2022] PGNC 432; N9791 (20 July 2022)

N9791

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 342 OF 2022

THE STATE

V

LAWRENCE KASKI
(No 2)

Madang: Miviri J
2022: 15^th,19^th & 20^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – S347 CCA sexual penetration Without Consent Two Counts –21-Year-Old Biological Daughter – Offender Biological Father – Serious Breach of Trust – Violent Offence – Serious Injuries – Medical Report – First Offender 50-year-Old – Protection of Family Unit – Trial Reliving Offence – Whether Cumulative or Current Sentences – Totality of Sentence – Strong Deterrent Punitive Sentence – 30 years IHL.

Facts

Accused biological father of complainant assaulted her grievously with weapons and penetrated her vagina with his penis and had sexual intercourse with her. He did this twice.

Held
Protection of family Unit.
Serious Breach of Trust.
Father & Daughter.
Prevalent offence.
Violence over and above.
Serious Grievous injuries
Stern Deterrent & Punitive Sentence.

Cases Cited:
Kumbamong v State [2008] PGSC 51; SC1017
Penias, The State v [1994] PNGLR 48
Aubuku v The State [1987] PNGLR 267
State ats Teptep [2004] PGNC 148; N2612
Waim v The State [1997] PGSC 2; SC519
Hindemba v The State [1998] PGSC 48; SC593
State v Titibai [2014] PGNC 117; N5744 (23 April 2014)
Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000)
Nimagi v State [2004] PGSC 31; SC741
Simbe v The State [1994] PNGLR 38
Kalabus v The State [1988-89] PNGLR 193
State v Hagei [2005] PGNC 60; N2913
State v Kesu [2006] PGNC 208; N5450 (20 June 2006)
State v Mongi [2011] PGNC 88; N4364
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua v Public Prosecutor [1985] PNGLR 85

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant

SENTENCE

20^th July, 2022

1. MIVIRI J: This is the sentence upon Lawrence Kaski of Mikarop village Bogia District, Madang who sexually penetrated his daughter without her consent twice.
   
2. He was charged pursuant to section 347 of the criminal code in each case of rape reading:
   

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

3. It means the minimum sentence on a simple rape without circumstances of aggravation will draw 15 years imprisonment. That term 15 years is by passed because circumstances of aggravation are pleaded here leading to the Conviction. There are two convictions both aggravated in that at the time of the rape he was armed with a dangerous and offensive instrument and caused grievous bodily harm upon the daughter. It is the same in count two, this time it is with a dangerous and offensive weapon that is used with grievous bodily harm attained. In my view the sentence here will certainly be not 15 years per se. The maximum of life imprisonment is prescribed. Which will befall the prisoner should this be considered the worst case of its kind. This is the will of the people through the legislature calling for the protection of its women and daughters. The court will interpret and will not substitute by categories and tariffs as that will amount to legislating when that is not its role: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
   
4. Rape is personal unto the victim, here the biological daughter of the prisoner. She will live with the fact that her own biological father carnally penetrated her. It is a personal and private matter that cannot be described sufficiently to erase the pain of enduring it. Here it may have been seen by the Obstetrician and Gynaecologist Dr. Vero Agua, but what is within the mind of the victim will not be known. There is no assessment nor a report to ascertain the level and the extent of that trauma upon her. No sentence will erase and give her a new clean slate without that fact. It will remain until her natural life ends, Penias, The State v [1994] PNGLR 48. Because she has been personally violated, the hurt and shame will remain. And it is not expected and is not normal that a daughter would be raped by the father who bore that child into this world. Fathers are expected to protect and shelter the children, be it female or male, vice versa. Therefore, Milka Kaski did not expect that She would be sexually penetrated in her family home by her own natural biological father. Not once but twice. And on each occasion preceded by unprecedented level of violence with dangerous and offensive weapon upon her. Here firstly with a pinch bar and secondly with a knife. On each occasion not threatened, but use made giving injuries of grievous nature. Threatening her life and placing it in the balance. It is not a light matter to treat another person in that regard, especially here where it is the biological daughter. And he is the natural father.
   
5. These views have been spelt by the Supreme Court in Aubuku v The State [1987] PNGLR 267 where circumstances of aggravation draw up the sentence due a prisoner. Here is rape that is committed by a trusted person, the father of the girl. And it was promulgated that 8 years be the starting point in such a situation. Counsel defending has urged on the basis of this case to plea that that is the sentence due his client for the crime. That is a view from 1987, this is 2022. Time has moved and with it has come prevalence rather than desisting of the offence of rape, State ats Teptep [2004] PGNC 148; N2612. That is not to say the prisoner must be made a sacrificial lamb. He will be sentenced on the facts that have been proved in his case. And prevalence is one factor in that scale to come out with the proportionate sentence due him.
   
6. In Waim v The State [1997] PGSC 2; SC519 (2 May 1997) the appellant pleaded guilty to four counts of rape. He was sentenced to 25 years in prison for the various offences. The Supreme Court upheld his appeal on sentence affirming that the sentence of 25 years IHL for four counts of rape on a guilty plea was excessive. It was a quantum leap and therefore overturned to 18 years imprisonment for the four counts of the crime of rape. In Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) prisoner appealed against the 10 years imprisonment for rape that was imposed by the court at first instance. The Supreme Court increased the sentence from the original 10 years imposed by the national Court to 15 years, reasoning that she was a young 10-year-old student on her way to school when the prisoner used a knife threatened her into nearby bushes along the way where he committed rape upon her. She suffered serious injuries as a result.
   
7. In State v Titibai [2014] PGNC 117; N5744 (23 April 2014) stepfather pleaded guilty to the rape of his stepdaughter and secured 15 years for rape. That is not applicable here given that he has denied and so the daughter has been made to live out the ordeal in an open court. And that is a stepdaughter and father. Here is a natural biological father and daughter. Therefore, the sentence is not applicable given. And here it is aggravated by perverse action that depict a preplanning to commit the offence. Particularly with the connotation in the preparation of a portion or concoction of menstrual blood of the daughter with a vine for consumption by her and also the father prisoner. That is perverse and intent to commit the offence orchestrated even before the commission. It is a very serious fact against the prisoner and throws out his contention that he is a disabled person with one arm incapable. His mind does not distinguish between daughter and wife.
   
8. Here the Prisoner has been married to three wives. And had the body of his third wife available to turn to quell his sexual desires and impetus there and then. On each of the occasion that he committed the offences his wife was there for him to sustain and quell his sexual lust. There was no excuse to take it out on the daughter. It was unthinkable and very offensive. The trust that builds between the daughter and the father since her birth up has simply disappeared. It is no longer there. And that is serious and must be curtailed in the sentence that is passed upon the father. He did not see as his daughter but a sexual object that was at his whim to attain for his sexual pleasure. That is unbecoming of a father and a man who now strongly pleads that he is a disabled person. And that his sentence must reflect that fact of disability. In the evidence that came out in the trial sworn by his daughter he did not appear to be the disabled person he claims to be in the face of sentence. He could lift her up and carry her to the house. He could throw her down and lift her unconscious to the room where he was able to have sexual intercourse with her. He was able to assault her grievously with the pinch bar and later with a knife stabbing her. He did not appear to be a disabled person then. He cannot be a disabled person now in the face of the sentence that is due to him. His own actions have called for the sentence that will unfold into his domain. Personal circumstances will not alleviate what is due in law upon drawn by his criminal conduct, Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000).
   
9. Even the plea that he is a 50-year-old man will not distil nor set aside the intent of the legislature. The daughter will be protected. He is old enough to serve his term to the fullest. There will be no deduction on the basis of his age here. The gravity of the offence outweighs any consideration in that respect. He is a mature man who is responsible for the actions that he took. He must be held accountable to face what the law gives on his account. This ground will not make no difference mitigating. The converse is seen in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). He is well placed in his age to serve his full term imposed. Violent criminals who put age up as mitigation will not shy away from the impact of the law. And that will be what will follow the prisoner. He will not shy away from what he is owed in law for the crime.
   
10. Papua New Guinea culture and societies see children as hands that will care for the parents when they have aged. There is therefore a very high sense to care based on trust and love by the parents when the children are young and growing up. Abuse is never in the picture so there is trust that is built up between child and parents. The father is the shield of the child from all that is evil and will ensure safety and security for the child. He is also the bread winner and provider who sustains the child. Here the father prisoner has seriously and grievously abused and violated that trust. This is an offence that is prevalent and infiltrating into the family unit with defiance of the penalties that are dished out. It is an offence to argue that one penalty fits all by tariff and range. Hence any sentence must be personally driven by the facts and circumstances that are before the court as is the case here. Taking account too, that there is rape simplicitor drawing 15 years. And with aggravation drawing the maximum of life imprisonment. Given this primarily it is what is due and felt of the case that will drive proportionate the sentence calling. This is not an offence to tariff and range, because that is one of the matters to be considered to the ultimate sentence: Simbe v The State [1994] PNGLR 38.
    
11. This is a very serious offence that smothers the basic family unit. Its ripples are grave for the prisoner because the family unit must be protected at all times. His actions have destroyed that family and the law must lay out its domain. But it is grave though not the worst to draw the maximum sentence of life imprisonment upon him as was Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193 (27 October 1988) where a convicted rapist took a nine-year-old girl from her home raped her and killed her in the process. He had symptoms of sexual sadism and his appeal was dismissed and life years imprisonment imposed at first instance was confirmed on appeal. The court affirmed that it was one of the worst cases of rape. In all material particulars it is similar to State v Hagei [2005] PGNC 60; N2913 (21 September 2005) where the prisoner raped the victim who tried to run away naked, the prisoner chased after her punched her causing her to fall to the ground, as she did, he picked up a stick hit the back of her head causing internal injuries to the neck and the head from which she died. This court-imposed life years upon the prisoner because of the extenuating circumstance, that as soon as he was taken in by Police, he was taken to the relatives of the deceased girl, who severely beat him up, speared him with spear that come out just below his chest. He died and his body was wrapped up with plastic, and as he was about to be put into the morgue when he became alive again. He pleaded guilty before this court, the death penalty was envisaged, but not pursued because of this extenuating circumstance. There is no extenuating circumstances evidenced here to derail what is due given his facts and circumstances in law.
    
12. Here the facts on arraignment were that on the 05^th of April 2021 the Accused told the victim he would make a portion from her menstrual blood mixed with certain other things that he would give to her to drink so as to clear her head. He also would drink some of it. She refused and stated that she would not do such a thing with him. On the 12^th May 2021 he was aggressive to her. Because of that fact she intended to run away to Tarangau within Newtown to her cousin there. As she was walking to that area, she was stalked by the neighbourhood boys who told her that it was unsafe to walk in the night. Whilst she was talking to them the accused approached grabbed her and dragged her to their house. Where he took her inside ordering the Stepmother and other siblings out. He then locked the door and started to assault her with a pinch bar, all the while accusing her of having sexual relations with the boys, he had just met her with. He went onto accuse the daughter complainant of being disrespectful to him by not allowing him to have sexual intercourse with her but spend time with boys. She was assaulted to an extent where she was not fully conscious. And she felt Accused turning her over and undressed her and sexually penetrated her. She cried out please Daddy don’t do that to me, but he continued to have sexual intercourse with her.
    
13. On Friday the 21^st of May 2021 Accused came home around 11.00pm in the night. The complainant daughter was asleep on the veranda where she was resting for the past week & a half due to the trauma of being assaulted with the pinch bar by the accused. Whilst she was sleeping the Accused came with a bayonet with a rugged edge and plunged it into her left knee. She woke up from sleep and started screaming as she observed blood on her knees. He proceeded to poke her with the knife all over her body with it. And then dragged her outside the house, once outside he ordered the stepmother to switch off the lights outside. There he undressed her on the pretext of bathing her wounds, he begun fondling her breasts and vagina. He took her upstairs back into the room. Still in the dark he removed the towel and sexually penetrated her. He continued for about two (2) hours before he went to his room and slept. She ran away and sought refuge from the neighbours and was brought to her cousin Lillian Titus at Tarangau Street Newtown.
    
14. The seriousness of the actions of the prisoner can be illustrated by the medical evidence which depicted as follows; “Physical examination; On examination, she walked in with the support of her cousin, was in great pain distress, and was crying whilst reporting. Vital Observations were stable. Local Examinations; Head – slightly swollen, generalized tenderness. Ears/Face- swollen, tender ++, raccoons’ eye on the left. Chest/breasts- NAD. Abdomen- soft, non-tender, no mass. Limbs bruised right 3^rd digit (hand) laceration on right limb (leg) sutured and dressed, tender, reduced range of movement.
    
15. Vaginal Examination Speculum. Perineum-bruised noted at the introitus. Vulva/vagina-laceration minimal-bleeds with contact. Cervis Os-closed, pink, minimal clear fluid noted, no laceration-Specimen taken for semen MCS.
    
16. Bimanual Examination-Bilateral adnexal tenderness. Uterus size-12/40. There was no ano-rectal injury. Investigation came back; pregnancy test was negative; semen analysis was also negative for spermatozoa. RVI screening and VDRL results not available at the time of reporting.
    
17. Summary; The findings are suggestive recent sexual assault (Incest) with multiple injuries. She was managed accordingly and follow-up at Family Support Centre for counselling. Please assist her in any way possible. Thank you signed Doctor Vero Agua O&G Registrar Under Doctor Bolgna, SSMO-Obstetrics and Gynaecology unit.”
    
18. These findings warrant a stern deterrent and punitive sentence upon the prisoner. Because the offence is repeated, here there are two counts given this fact, the sentencing term increases. And this is not novel for instance in State v Kesu [2006] PGNC 208; N5450 (20 June 2006) he was the father of the eleven-year-old daughter that he raped culminating in three counts that were levelled against him. The court convicted on all and imposed 12 years IHL in respect of both first and second counts giving a total of 24 years IHL. The third count drew 10 years which was made concurrent to the 24 years. Hence the sentence imposed was 24 years IHL. And it was in this way yet again in State v Mongi [2011] PGNC 88; N4364 (17 May 2011) where two counts of rape draw 12 years IHL cumulative drawing out 24 years IHL after initially setting down from 40 years IHL on principles of totality.
    
19. Following these cases bearing in mind Acting Public Prosecutor v Haha [1981] PNGLR 205 in particular the principles of cumulative and concurrent sentences, that; “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85. Here there are two counts of sexual penetration without consent sustained. Both will be determined cumulatively as they were committed apart from each other. They were not part of the same transaction or came out of the same day and time. They were weeks apart from each other. Therefore, are different offences drawing their sentences individually. But totality will be considered to arrive at a proportionate sentence due given. Given also that the law must be in tune with time and the prevalence of the offence.
    
20. I determine in this light in the aggregate for the crime of rape committed between the 04^th and the 12^th day of May 2021 at Bukbuk Street, Madang the prisoner Lawrence Kaski is hereby sentenced to 20 years imprisonment IHL.
    
21. And for the crime of rape committed on the 21^st day of May 2021 at Bukbuk Street, Madang the prisoner Lawrence Kaski is hereby sentenced to 20 years imprisonment IHL.
    
22. He will serve the sentences cumulatively; he will serve 40 years imprisonment in IHL. In my view that would be excessive in the light of the principles of totality. I therefore reduce 10 years from that sentence.
    
23. He will serve 30 years IHL in jail. Time in custody will be deducted from that head sentence and he will serve the balance in jail. This is not a quantum leap considering all that I have set out above. The law will serve justice and 30 years is justice for a daughter who was treated like a sex object not flesh and blood.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the defendant