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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1029 OF 2019
THE STATE
v
ROBERT AGEN
(No 9)
Waigani: Ganaii, AJ.
2023: 12th May
CRIMINAL LAW – Practice and Procedure – Sentence - Acquaintance Rape – Section 347 (1) of the CCA- Aggravation not pleaded – Assault occasioning bodily harm – Section 340 (1) of the CCA Seriousness of offences- Starting point of 10 years - Aggravations outweigh mitigations – Deterrent aspect of punishment – Recognition of harm done to victim –– Partial suspension – Probation
Cases Cited:
Papua New Guinean Cases
Goli Golu v The State [1979] PNGLR 653
John Aubuku v The State [1987] PNGLR 267
Kalabus v The State [1988] PNGLR 193
Lawrence Simbe v The State) [1994] PNGLR 38
Lialu v The State [1990] PNGLR 487
Public Prosecutor v Tom Ake [1978] PNGLR 469
State v Hotsia Geria (2008) N3868
State v Johannes [2014] PGNC 105; N5644
State v Kom [2009] PGNC 311; N6199
State v Lolo Bellamy & Hobai Haro, (No. 2), N8821
State v Mol (2008) N3707
State v Nema [2019] PGNC 454; N8233
State v Oa (No. 2) [2021] PGNC 527; N9385
State v Paul Karuka (2021) N9281
State v Penias [1994] PNGLR 48
State v Yali [2006] PGNC 26; N2989
Tony Mai v The State, SC903, SCRA No 23 of 2006
Overseas Cases
Heine v R [2008] NSWCCA 61 at [40]
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
R v Cortese [2013] NSWCCA 148 at [55]
R v Daley [2010] NSWCCA 223 at [48]
R v Grech [1999] NSWCCA 268 at [34]– [35]
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Harvey (unrep, 23/8/96, NSWCCA)
R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 at [56]
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at [11]
R v MSK [2005] NSWCCA 369
R v MSK [2006] NSWSC 237
R v O’Grady (unrep, 13/5/97, NSWCCA)
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [26]
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [21]
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Counsel
Ms M Tamate/Suwae, for the State
Mr D. Dotaona, for the Offender
RULING ON SENTENCE
12th May, 2023
1. GANAII, AJ: This is a ruling on sentence after the offender was found guilty and convicted on one count of Rape contrary to section 347 (1) and
two counts of Assault occasioning bodily harm, contrary to s 340 (1) of the Criminal Code Act (CCA) respectively.
Relevant facts
2. At the time of the commission of these offences, the offender was 45 years old and the victim was 38 years old. Both were known
to each other as they were in an intimate partner relationship which started in 2017.
3. In relation to counts one and two, on the 30th of April 2018, the offender had been unhappy with the victim for being with someone else the night before. He demanded to meet her.
When they met outside the car park area of the victim’s office, he insisted that they talk in private. Reluctantly, she got
into his vehicle. They drove away. He then picked up two men, presumably his relatives, who were armed with bush knives. They sat
on either side of her in the vehicle and she sat in the middle. The offender demanded for the victim’s phone and password and
she gave them to him. He unlocked her phone, checked her messages and saw that she had met with someone else the night before. He
became angry. He drove out of the city limits towards Sogeri.
4. Whilst driving, the offender assaulted the victim by throwing punches at her. Later, at Ower’s Corner, Sogeri, the two men took the victim to the edge of a cliff and threatened to kill her. They told her they would kill her, throw her body down the cliff and no one will ever know. The offender then told her that because she has been good to his family, they will spare her life. The offender said it will also be on the condition that she remain one of his many wives.
5. The offender then told the two men to leave. As the two men went out of sight, he demanded to have sex with the victim. He said to her that she would do as he said as she was his property. He forced the victim into a bent over position, and from behind, he sexually penetrated her vagina without her consent.
6. After sexually penetrating the victim, the offender sat the victim down and asked her if she fully understood what wrong she had committed against him and his family. He then used his leather belt and assaulted the victim by whipping her several times on her back. She felt pain and sustained bruises to her back from the whipping.
7. In relation to the alternate count 4, on another occasion, which was on the 15th of September 2018, at the Red Rock Bar, the offender had become suspicions that the victim was communicating with someone and he assaulted her at the car park. Later that night, at the house of a close friend of theirs at Waigani, she decided she would remain there and not go with the offender.
8. The offender insisted on taking the victim away. As she lay on the couch, he picked her up. She resisted and a struggle ensured.
He dragged her, continuously punched her, and kicked her with his boots all over her body and face. She sustained injuries to her
face. She bled profusely from the face and lost consciousness. She suffered a broken jaw, namely a linear fracture of the lower mandible.
She also experienced pain and was unable to eat solid food for some time. The fracture had healed completely over time.
Allocutus
9. In allocutus the offender chose to remain silent. He said his lawyer will address the court on sentence.
Law
10. The penalty for the offence of Rape is provided under s 347 of the CCA. The section reads:
“47. DEFINITION OF RAPE.
(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”.
11. The penalty for the offence of Assault occasioning bodily harm is a term not exceeding three years. The law says:
“340. ASSAULTS OCCASIONING BODILY HARM.
(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years”.
Personal Particulars
12. The offender is now 52 years old and hails from Aregol village, Sinesine District of the Chimbu Province. He is a resident of Port Moresby. He is the first born out a family of four, where he has two brothers and a sister, apart from himself.
13. The offender has had relationships and has had four daughters from those different relationships. The victim is the mother to one of his four daughters.
14. The offender had obtained a Degree in Civil Engineering at the Papua New Guinea University of Technology in 1996 and a Master of Science in Construction Project Management at the Loughborough University, in England, UK.
15. The offender has had a total of 26 years of work experience. A summary of his curriculum vitae showed in the years 2016 – 2022, he had worked with the National and Provincial Governments of PNG and the District Development Authorities in delivering or planning various infrastructure projects; and between the years 1998 – 2017, he had worked with international engineering firms to deliver large scale engineering projects.
16. The offender says he has no major health problems. He does not consume drugs. He consumes alcohol. He is financially stable as he earns his living from his professional engagement with consultancy services and contracts.
17. On his future plans, the offender says although he has permanent residency status in the UK he will remain in PNG and serve the PNG Government and people as a railway engineer.
18. Persons who know the offender spoke highly of his good character and involvement in his community. This is a summary of what they
said.
19. The offender is humble, a good listener and goes out of his way to assist people if and where he can. He is mission-driven to
create a better life for young Papua New Guineans through sports and education, with the highest level of integrity and professionalism.
He was a mentor to many youths and through his assistance, many youths have bettered their lives through sports and education.
The success of young people is a testimony to what the offender has done and can do to better the lives of young people.
professionalism and delivered outcomes to expectations. He was described as a
great ambassador of his country.
sponsoring sports teams, paying school fees for underprivileged children,
sponsoring tuition fees for students at tertiary institutions, mediates in ethnic
conflicts, investigates illegal land deals with a view of assisting settlers with land
or settlement issues.
principles throughout his student life. He was active in evangelism. It was
uncharacteristic of him to be convicted of these offences. He has never been in
trouble with the law before and is not a threat to anyone.
many young Papua New Guineas for his educational achievements and career in
railway and other engineering in the UK.
24. The offender has no prior records with the Courts or with the Probation office and is a first time-offender.
25. On the circumstances surrounding the commission of the offences, the offender accepted the findings of the court on the facts. In the PSR, when interviewed, he sought forgiveness from the victim. He also sought leniency from the court. His says his experience in court has taught him a lesson and he will keep away from trouble in future. His family also seeks leniency from the courts.
26. The writer assessed that the offender is not a threat to anyone in his community.
Submissions
27. State submitted that the Court will consider the case of John Aubuku v The State [1987] PNGLR 267 where the Court categorised the offence of rape. These guidelines are outdated and must be reviewed. These other aggravations would attract more sentence for example violence, threats, use of firearms or other weapons, repeated acts, prior convictions.
28. In the present matter, there is breach of trust as this is acquaintance rape. The Court will consider the Victim Impact Statement (VIS) and submitted that the said crimes have affected the victim physically, emotionally, financially and professionally.
29. State relied on a number of comparable cases and submitted that for the offence of rape, the offender be sentenced for a term of between 12 -15 years. For the offence of Assault occasioning bodily harm, the offender be sentenced for a term of 2 years imprisonment in hard labour.
30. Mr Dotaona of learned counsel for the offender made submissions on issues not related to sentence. These included submissions on the offender’s arrest and charge, functions and powers of the Committal court and the Public Prosecutor. This court has already considered all these matters in its respective rulings on previous applications. Those matters are res judicata before this court. These matters have not been appealed and the rulings of this court remain intact.
31. On sentence, Mr Dotaona made these submissions. The case of State v Yali [2006] PGNC 26; N2989 (19 January 2006) is a useful guide for sentences for rape. The court imposed a sentence of 12 years where there were stronger aggravating factors.
32. The facts in the Yali case are the offender was convicted of one count of 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.
33. The Court in Yali held:(1) This was a serious case of rape under Section 347(1) of the Criminal Code; (2) As no circumstances of aggravation were charged in the indictment the maximum penalty to which the offender could be sentenced
was 15 years imprisonment; (3) The court should use 10 years imprisonment as a starting point when sentencing under Section 347(1),
then consider all mitigating and aggravating circumstances; (4) In the present case there were more strongly aggravating circumstances
than strongly mitigating circumstances and it was proper to sentence the offender above the starting point; and (5) The offender
was sentenced to 12 years imprisonment.
34. In the present case, due to absence of strong aggravating factors, Mr Dotaona submitted that the sentence this case should attract is 8 years as a starting point. The mitigations are: first time offender, prior good character, cooperated with the police, and others.
35. Mr Dotaona submitted that four years is an appropriate sentence for the offender for the offence of rape. For the offence of Assault occasioning bodily harm, it is submitted that six months is appropriate on each count to be served concurrently.
36. On the whole, a total of 4 years for Rape plus one year for Assault occasioning bodily harm is five years to be wholly suspended
with orders for probation, good behaviour and a fine of K5, 000 be imposed as punishment for the offender.
Consideration
37. This Court is mindful of the purposes of sentencing which is to ensure that the offender is adequately punished for the offence, to prevent any crime by deterring the offender and other likeminded persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognize the harm done to the victim of the crime and to the community. Sentencing Principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 is adopted and applied in the case of State v Paul Karuka (2021) N9281 (14th September 2021).
38. This court is mindful also of the principle in the case of Goli Golu v The State [1979] PNGLR 653. The maximum penalty is reserved for the worst case. It is settled law that each case must be decided on its own merits (Lawrence Simbe v The State) [1994] PNGLR 38.
39. In exercising its sentencing discretion, the mitigating and aggravating factors will be considered by this Court. Lialu v The State [1990] PNGLR 487.
40. The sentence applicable under s 347 (1) of the CCA, due to the State not pleading circumstances on the indictment is not life. The maximum penalty under ss (1) therefore is 15 years imprisonment in hard labour. (Tony Mai v The State, SC903, SCRA No 23 of 2006[1]).
41. In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are; and what the appropriate head sentence should be and should any or part of it be deducted.
42. The case of State v Aubuku (supra) was relevant many years ago. I agree with the Courts and say that generally the guidelines are outdated and need review. Hence, a sentence of five years, let alone four years of which counsel for the offender is seeking, may not be appropriate, and will be considered too lenient in the circumstance of this case due to passage of time, prevalence of the offence, the sentencing trend of the courts which generally demonstrate the imposition of increasing penalties and recognition of various matters as aggravating factors.
43. Within jurisdiction, I was able to identify one case involving the offence of rape of a person who was in an intimate relationship with the offender. This is the case of State v Nema [2019] PGNC 454; N8233 (16 December 2019). In this case, the victim was the wife of the offender. He suspected her of having sex with her former partner or husband. He went home drunk, questioned her, threatened her and sexually penetrated her against her will. The act of penetration involved penal to vaginal penetration. There was a relationship of trust, authority and dependency. The Court said the proper starting point was 10 years and upon a guilty plea the offender was sentenced to 8 years minus time spent in pre-trial custody.
44. In the Nema case, the Court also considered that the Pre-Sentence Report did not contain the views of the victim’s family nor from the leaders of the offender’s community and therefore did not recommend any suspension of any sentence for purposes of receiving the benefits of a probation term. Considering the sentencing notion of deterrence where there was breach of trust involved and the victim was the wife of the offender, the Court did not suspend the sentence in part or in full.
Other relevantly comparable cases
45. For want of consideration of other relevantly comparable cases, on the combination of the following factors, namely trial on one count of rape, where perpetrator is known to the victim, where victim suffered no injuries, there was penal to vaginal penetration, victim was threatened and assaulted, and where offender did not apologise, I consider these two other cases applicable, Tony Mai v The State, SC903, SCRA No 23 of 2006 and State v Johannes [2014] PGNC 105; N5644 (26 June 2014).
a) Tony Mai v The State, SC903, SCRA No 23 of 2006
46. The facts were that the appellant was from Tari, Southern Highlands and was aged about 19 years at the time. He was found guilty of raping his 18-year-old cousin sister at the Gerehu sports complex. There were no physical injuries sustained by the victim. Though there were aggravations, including, existing relationship of trust, none were charged on the indictment. On appeal on a sentence of 12 years, the Supreme Court said the sentence imposed was within range taking into account all relevant facts.
47. The Court said under Section 347(1) of the Criminal Code the maximum sentence that could have been imposed was 15 years. The appellant received three years less than the maximum. Given that this was a trial and that the appellant expressed no remorse when he was given the opportunity to address the court, it was an unremarkable sentence and in no way out of line with the sort of sentences that are these days being imposed for rape. His Honour took into account mitigating factors such as the youthfulness of the offender and his first conviction. The Court said in all the circumstances, this was an entirely reasonable exercise of discretion.
b) State v Johannes [2014] PGNC 105; N5644 (26 June 2014).
48. The offender was found guilty of one count of rape under Section 347(1) of the Criminal Code. The offender and the victim were of similar age, in their early 30s, and were well known to each other, being neighbours. The offender
grabbed the victim as she was walking along a road, dragged her into the bush and sexually penetrated her without her consent. The
Court held that the starting point for sentencing for rape under Section 347(1) of the Criminal Code is 10 years imprisonment.
49. In Johannes (supra), the mitigating factors that the Court took into account were the offender acted alone, there were no torture, no confinement, no
other indignity, no further trouble, first-time offender, and not a large age gap. The agravating factors were penile penetration,
no consent, no provocation, emotional impact on the victim, offender did not accept responsibility, no remorse, and offender was
not a youthful offender. Consequently, a sentence of 12 years was imposed. The pre-sentence period in custody was deducted and none
of the sentence was suspended.
50. The third case I consider as relevantly comparable is the case of State v Yali (supra) [2006] PGNC 26; N2989 (19 January 2006), cited by the defence.
51. In Yali’s case, the offender was convicted of one count of rape and sentenced to 12 years. The offender acted alone; no weapons were used and there was a violation of trust. There was a high degree of sexual indignity and the offender had not expressed remorse. He was not a youthful offender. What is different though is that the offender in the Yali case had a previous conviction for summary assault. This court is guided by what the Court held in Yali, which are: it was a serious case of rape under Section 347(1) of the Criminal Code; (2); where no circumstances of aggravation were charged in the indictment the maximum penalty to which the offender could be sentenced was 15 years imprisonment; (3) The court will use 10 years imprisonment as a starting point when sentencing under Section 347(1), then consider all mitigating and aggravating circumstances; Where in the present case there are more strong aggravating circumstances than strongly mitigating circumstances and it would be proper to sentence the offender above the starting point of 10 years.
52. Consistent with the trend of imposition of increasing sentences after the Aubuku (supra) case, I agree with the courts in State v Johaness. State v Yali and Mai v The State (supra), that after a trial, the starting point for a charge of rape should be 10 years, and where there were serious aggravating factors, sentence of 12 years was appropriate. Where the starting point is 10 years, this can go up or down depending on peculiar circumstances of each case and the presence or absence of the mitigating and aggravating factors. Where the State had not pleaded the circumstances of aggravation, the starting point of 15 years is therefore not relevant in the present matter.
53. In the present case, the following circumstances of mitigation and aggravation are present: in mitigation, first-time offender and not a large age gap. The fact that this is not a stranger rape is not a mitigating factor.
54. The aggravating factors are there was violence before and after the act of sexual penetration, there was penile penetration, there was no consent, there was no provocation, and the victim suffered from emotional impacts of the crime.
55. Through the Pre-Sentence Report, the offender maintained his innocence at first and then went on to say he will accept the court’s
ruling. He then said he was sorry and asked the victim for forgiveness. In considering whether I should accept this as genuine remorse,
I am guided by what the Court said in the case of State v Kom [2009] PGNC 311; N6199 (2 December 2009), at [46].
56. In Koim, the Court accepted the offender’s expression of remorse in open court after he pleaded guilty, based on the legal proposition
that a guilty plea may demonstrate and support remorse and contrition: Public Prosecutor v Tom Ake [1978] PNGLR 469; Kalabus v The State [1988] PNGLR 193.
57. In the present matter, the matter went to trial. After conviction, the offender chose not to address the court during allocutus and so he did not apologise to the victim for the wrong done to her nor to Court for breaking the law. Where he conscientiously missed the opportunity to do so, coupled with the fact that he did not plead guilty and even after the court convicted him, continued to maintain his innocence, I do not see the apology by the offender as genuine, but rather one that appeared superficial, shallow and showing no responsibility at all for his actions. Therefore, I do not accept that his remorse was genuine.
58. Other aggravations are that the offender was not youthful. He was a matured man, not unsophisticated and was truly a ‘worldly’
man, who was well-rounded in education, travel and experiences. He committed a breach of trust as the relationship between him and
the victim involved depending on each other’s trust and authority.
The Victim Impact Statement
59. Internationally, the concerns of victims of crimes have been recognised through a number of declarations and the most important of which is the United Nations Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power[2]. The Declaration is based on the philosophy that adequate recognition should be given to victims and that they should be treated with respect in the criminal justice system. Judicial officers are highly trained; however, it may often be too difficult for them to comprehend the range of emotions and sufferings a particular victim of sexual violence is going through. Individuals bring with them different backgrounds, different impacts, different support systems and therefore a different manner of coping with the trauma flowing from the abuse.
60. For this reason, through the tendering of a Victim Impact Statement (VIS) via s 21A of the CCA (as amended), this Court is able to understand the impacts of these crimes committed on the victim. The VIS is summarised below:
“Nothing will ever be the same again for me. My immediate family all live in Jaya Pura, Papua Province, Indonesia and so my immediate and strongest support network are not in the country. Extended family, friends, and wantoks can do only so much to help Where I have chosen to challenge the system and protect my rights, it is very much a fight taken alone, As a woman, especially a mother, I will forever be fearful of my safety and that of my children. No amount of counselling can alleviate those fears”.
61. By way of summary, these are the impacts of the crime on the victim: loss of dignity and reputation, pain and suffering, emotional distress and loss of enjoyment of life, loss of employment opportunities, and earning potential, costs incurred on victim’s domestic and caring activities, living in fear of retaliation, expenses for security, psychological and other social services; and actual cost for seeking justice, including transportation as a result of or relating to experiencing violence.
62. Through the VIS, the victim sought that the Court impose the maximum penalty as punishment for the offender. The law is clear that the maximum penalty of life or in this instance 15 years, should be reserved for the worst kind of rape case.
63. In the duty of the Courts to reach an appropriate penalty for the offender, the relevant question to ask is, is this case the worst type of rape case under section 347 (1) of the CCA?
Seriousness of the offence
64. To decide on whether a case of rape is of the worst kind or is objectively serious, is an important step the court must take in determining an appropriate sentence. I look to the jurisdiction of Australia, for assistance. In the case of Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 per Mason CJ. Per Mahoney JA), the Court said the objectification of the seriousness of a sexual assault offence must be conducted because even though:
“...every offence of this kind is a serious offence. Those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances, of humiliation and otherwise, are much greater than are involved in this case [and others]. It is to be understood that in sentencing it is appropriate – indeed, in most cases it is necessary – that the sentencing judge form and record his assessment of where, on the relevant scale of seriousness, the particular offence lies”: R v Gebrail (unreported, 18/11/1994, NSWCCA) at [11].
65. To assist in the determination of how serious this case is, I continue on to discuss a number of other cases.
66. I begin with the Aubuku (supra) case. Prior to the amendment of the CCA, the SC of PNG expressed that the worst cases of rape which should attract the maximum penalty include “those committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will not be innappropriate”.
67. In the present case, if the State had pleaded circumstances of aggravation, the maximum sentence of life would be applicable, and guided by the Aubuku case, the circumstances of this case would not have placed it in the category of worst type of rape cases.
68. The Court in Ibbs v The Queen (supra) stated that part of the assessment of the objective seriousness of the sexual assault will be a consideration of the type of sexual
act amongst the surrounding circumstances of the offence to determine the ordeal which the victim may have encountered before and
after the offending conduct.
69. On the nature of the sexual act, the comments of Court, Mason CJ and Wilson, Brennan, Toohey and Gaudron J, in Ibbs v The Queen (supra) at 452, demonstrated that the seriousness of an offence depended on all the circumstances of the case and is not confined
to the nature of the act committed by the offender.
70. While the form of intercourse “is an important factor, it is not to be regarded as the sole consideration”: R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 at [56].
71. A combination of other relevant factors also determines the seriousness of a sexual offence which include the degree of violence, physical hurt inflicted, form of forced intercourse, circumstance of humiliation and the duration of the offence. (See R v Hibberd (supra) at [56], cited with approval in R v Daley [2010] NSWCCA 223 at [48].
72. On the duration of the assault, the Court in R v Daley (supra) at [48], Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd (supra) about the duration of an assault and said the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. The reasoning behind this was that most sexual assaults will not be prolonged as the offender will seek to avoid apprehension.
73. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. (R v Daley (supra) at [48], Price J (Hodgson JA and Fullerton J agreeing).
74. Other appropriate areas of inquiry in the consideration of the seriousness of an offence includes how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made, subsequent silence, and any immediately apparent effect on the victim.
75. The Courts in Australia have also considered factors which are not mitigating at sentence and these include prior relationship. The mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality of the sexual assault: R v Cortese [2013] NSWCCA 148 at [55]. The fact that an offence occurred in a domestic context does not lessen its gravity: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179; Heine v R [2008] NSWCCA 61 at [40]; R v Harvey (unrep, 23/8/96, NSWCCA); R v Grech [1999] NSWCCA 268 at [34]–[35].
76. Further, offences committed in a domestic context as distinct from an attack from a stranger does not lessen their seriousness: ZZ v R at [104].
77. It becomes a serious aggravating factor if a woman is threatened or sexually assaulted due to relationship break down, and where she was entitled to feel that whatever other consequences ensue, her personal safety will not be threatened at all. (Refer to Sully, J said in R v O’Grady (unrep, 13/5/97, NSWCCA).
78. For intimate partners, it is wrong to sentence on the basis that the psychological effect on the victim or the gravity of the offence will be less than that experienced by others. (See R v O’Grady (supra) (unrep, 13/5/97, NSWCCA).
79. This court adopts and discusses the concept of “cultural conditioning” in the Australian case of R v MSK [2005] NSWCCA 369 where counsel for MSK submitted that the court should favourably consider his appeal because, having come from Pakistan, he was culturally conditioned by its “very traditional views about women”. This submission was emphatically rejected by McClellan CJ at CL at [4] where the Court said:
“Whatever be its intended meaning the submission must be rejected. It is a fundamental right of every person in a civilised society to live without fear of being assaulted, whether it be physical assault or assaults of a sexual nature. For this reason the legislature has made all forms of assault upon the person a crime imposing heavy penalties on those who do not respect that right. When, as happened in the matters under appeal, the conduct of an offender demonstrates a complete disregard for that right our community expects the courts to impose penalties which punish the offender and mark out the seriousness of the offence so that others will be deterred from acting in a similar manner”.
80. In the MSK case, Counsel for the offender (MSK) raised the issue of the relevance of cultural conditioning again at first instance in R v MSK [2006] NSWSC 237. Justice Hidden at [45] rejected the submission because it had no factual basis. The Court said:
“he must have had sufficient exposure to the Australian way of life to be aware that the place occupied by women in the traditional culture of his area of origin is far removed from our social norms. He can have been in no doubt that to treat those two young women in the manner he did was utterly unacceptable”.
81. Further, the impact of the crime on the victim is also a factor that assists the court decide where on the seriousness scale a sexual assault case should be.
82. It has long been established that if an individual has been sexually assaulted, they are at a greater risk of suffering from a myriad of physical and long-term psychological impacts following the assault or sexual act which was committed against them: The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [21]. This recognition of the detrimental impacts which the sexual conduct has upon the complainant of these sexual crimes has required judicial officers to depart from previous practices and conform with evolving community attitudes and ensure that increased sentences are imposed which correspond with the objective seriousness of the offence: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at [11].
83. In citing and discussing these Australian cases, I adopt them for their persuasive value and in my respectful view, for their relevance, appropriateness and applicability to the present case.
84. I consider that on the scale of seriousness, this present sexual assault case should sit in the middle of the category of cases attracting sentences of between 10 years as starting point to 15 years as the maximum sentence.
85. Whilst I consider that given the degree of physical injuries sustained by the victim from the violence perpetrated on her before and after the sexual assault and later when she was kicked and punched several times in the face and all over her body, that although these attacks were not life or limb threatening, they were serious matters, as the victim suffered from bruising, swollenness, pain and discomfort.
86. Regarding the form of forced intercourse, which was penal to vaginal penetration, I consider that there were no medically reported injuries sustained during the forced sexual penetration. Although the timing was short, I do consider that the short space of time was so because the offender was avoiding detection as the incident occurred at broad daylight, in a public place and the two tribesmen of the offender were nearby. (R v Daley (supra) at [48], Price J (Hodgson JA and Fullerton J agreeing). Due to this, the act was humiliating for the victim and injurious to her pride and dignity as a human being. This psychological effect of the crime on the victim is what the courts should considers serious.
87. I consider that the victim’s compliance with the demands made, and threats issued were a factor that contributed to and led to her subsequent silencing. Due to the immediate threats being issued and physical attacks on her, the apparent effect on the victim was the psychological trauma she experienced as stated in her VIS.
88. The fact that the offender was in a pre-existing or prior domestic and intimate relationship with the victim does not mitigate the criminality of his actions and lessen their gravity: R v Cortese (supra) [2013] NSWCCA 148 at [55]; R v Hamid (supra) [2006] NSWCCA 302; (2006) 164 A Crim R 179; Heine v R (supra) [2008] NSWCCA 61 at [40]; R v Harvey (supra) (unrep, 23/8/96, NSWCCA); R v Grech (supra) [1999] NSWCCA 268 at [34]–[35].
89. The commission of this sexual act by the offender in the domestic context is distinct from an attack from a stranger but this does not lessen the seriousness of the offending: ZZ v R (supra) at [104]. Sully J said in R v O’Grady (supra) (unrep, 13/5/97, NSWCCA). Where the victim demonstrated in her evidence that the offender became violent due to relationship issues or breakdown in their relationship, she was entitled to feel that whatever other consequences ensued, her personal safety will not be threatened at all, let alone threatened by the commission of the serious crime of rape. That increases the seriousness of this offending.
90. It it is wrong to sentence the offender on the basis that the psychological effect on the victim or the gravity of the offence will be less than that experienced by others because the offender and the victim have been living as intimate partners in a domestic setting. (See R v O’Grady (supra) (unrep, 13/5/97, NSWCCA).
91. Further, upon the finding of the facts that the offender was presumably with two of his tribesmen, and in the way they were present together, speaking words that effectively attacked and threatened the victim and supporting each other prior to the commission of these offences, demonstrated to this Court that they all had indeed held “very traditional views about women” and how the womenfolk should be treated when it came to issues concerning relationships or breakdown of them. This court rejects their combined held views that because the victim had done ‘some wrong’ to the offender and his family and had ‘brought shame upon him and them’, that she deserved to be punished and be subjected to physical and sexual violence.
92. To illustrate the point further that the offender is a man who had become angry, physical, violent and dominating, and had chosen to treat the victim in a certain way, according to his held belief, I quote from para 130 of the Courts decision on verdict in State v Robert Agen (No 7) 2022: 14th December, AJ Ganaii, Unreported and unnumbered. There, it was recorded that the offender’s counsel made the following submission on verdict on the charge of Unlawful assault at Waigani:
“In a sexual relationship – every partner is compelled by their inclination, to maintain the attention of the opposite
partner to themselves at all costs. Mr Agen was suspicions of the complainant and had to secure her company, it was normal human
instinct. He also did not trust her. If she complied, she would not have suffered injury. She voluntarily contributed to the risk.”
(Underlined emphasis mine).
93. At para 131 - 132, the Court went on further to say:
“..those submissions suggested that the offender would do anything to get the complainant to go with him. This submission is
not one [based on] [of] law and is no doubt based on the accused’s [own] instructions. The accused convinced himself that he
acted out of provocation because of [his claims that the complainant was polygamous] and that he can do anything to maintain the
complainant’s attention on him”. (Emphasis mine)
94. This Court rejects the held view that a woman deserves to be punished for relationship break downs or issues, as it is a fundamental right of every person in a civilised society to live without fear of being assaulted, whether it be physical assault or assaults of a sexual nature leading to psychological and emotional abuse. For this reason the legislature has made all forms of assault or abuse upon the person a crime by imposing heavy penalties on those who do not respect that right. In our jurisdiction s 5 of the Family Protection Act[3] creates and defines the offence of domestic violence to include all forms of violence and abuse, which include sexual, physical and psychological violence and abuses.
95. The conduct of the offender demonstrated a complete disregard for the victim’s human rights. Hence, the community expects the courts to impose penalties which will punish the offender and mark out the seriousness of the offence so that others will be deterred from acting in a similar manner.
96. Although the offender has had sufficient exposure to the European way of life, having studied and worked in the UK for twenty plus years, to be aware that the place occupied by women in the traditional culture of his area of origin is far removed from our social norms. He can have been in no doubt that to treat the victim in the manner he did was utterly unacceptable.
97. The impact of the crime on the victim shows that the victim had suffered from psychological trauma. That factor is a serious consideration. It has long been established that if an individual has been sexually assaulted, they are at a greater risk of suffering from a myriad of physical and long-term psychological impacts following the assault or sexual act which was committed against them: The Queen v Kilic (supra) [2016] HCA 48; (2016) 259 CLR 256 at [21].
98. This recognition of the detrimental impacts which the sexual conduct of the offender has upon the victim requires this court to depart from previous practices and conform with evolving community attitudes and ensure that increased sentences are imposed which correspond with the objective seriousness of the offence: R v MJR (supra) [2002] NSWCCA 129; (2002) 54 NSWLR 368 at [11].
Punitive and Deterrent Sentence
99. In considering further, the seriousness of a sexual assault case, I also cite the case of State v Penias [1994] PNGLR 48. The Court said:
“Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone, to men .... But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. ...... At times, because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. ...... That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence”
100. The offences of rape are a violation of the victim’s privacy and a breach of their human rights which is guaranteed to them under the Universal Declaration for Human Rights[4]; and our Constitution. In State v Lolo Bellamy & Hobai Haro, (No. 2) (2021) N8821, Berrigan, J held that:
“Rape is the degrading violation of an individual’s liberty, bodily integrity,
security, privacy and dignity. Rape is prevalent and the fear it engenders pervasive. It interferes with the rights of all women to equal participation under the Constitution... “.
101. In consideration of the serious breach of human rights and a violation of the liberty, dignity and privacy of a person, a deterrent and punitive sentence must is called for.
102. This is a case where the aggravations far outweigh the mitigations. Where the Courts have held that the starting point is 10 years, the greater number of aggravations will attract sentences higher than 10 years.
103. To understand what the motive for the commission of this crimes were, the following evidence of the victim is relied on:
“At Ower’s Corner, I was sitting [as] he continued hitting me, saying he was going to end my life, because of what I did which is that I made him look foolish, for being with someone else [and] I will pay with my life. I brought shame on him and his family. Then the two men tried to pull me out and I resisted. He pulled me out of the vehicle. He then said, it was out of his hands, and whatever his relatives chose to do to me, he had nothing to do with it.
He walked away. They took me to the edge (of the cliff) and said they will push me over and I have to say my last prayers. I was still crying, begged them to spare my life and I will not tell anyone.
The men then acknowledged that during my relationship with Mr Agen, I had been supportive towards his family and so if I agree to accept that I will be one of his many wives they will allow me to live.
[At that time, she turned and saw Mr Agen standing about 20 meters away].
Then Mr Agen told them to leave and they did. He told me if I understood what they said to me and how lucky I am to be alive, He then said I would be one of his many wives and be his sex object and whenever he demanded for sex, he would have it. He then demanded to have sex. I cried and refused. He said I didn’t have a choice; I was his property and he owned me. He then forced himself on me and had sex.
After that he made me sit down and repeatedly asked, if I understood that I bought shame to him, and his family. He then took out his belt and whipped me several times”.
104. These findings demonstrated that the instances of sexual intercourse and physical assaults occasioned against the victim, an intimate partner of the offender, without her consent were due to relationship issues or relationship break down. It therefore is apparent that the offender’s actions and words showed that he was expressing anger, dominance and a form of vengeance[5] on the victim.
105. This court considers that whilst the motive explains why the offender committed this offence and if accepted may mitigate penalty, it also shows the criminality of his mind and behaviour as an aggravating circumstance surrounding the commission of this offences. That, together with all the other factors in aggravation, in my respectful view, places this case in the lower to mid end of the category of 10 – 15 years sentence. The case should attract a sentence of 10-12 years.
Conclusion on consideration of sentence for offence of rape
105. The concluding remarks of this court on the consideration for the sentence of rape under s 347 (1) of the CCA is that the maximum sentence of 15 years is reserved for the worse case. This is not the worst case. The starting point is 10 years. In light of all that I have said above and that this is punishment after trial, I consider a sentence of 11 years imprisonment in hard labour as appropriate for the count of rape.
Consideration of sentence for the offence of Assault occasioning bodily harm
106. In State v Mol (2008) N3707, David J spoke of the continuity and prevalence of this offence. He said the following to the prisoner who pleaded guilty to a charge of unlawful assault causing grievous bodily harm to his wife:
“Wife beating is prohibited by law yet husbands continue to assault their wives in our society with total disregard for their humanity for all sorts of reasons and sometimes they end up in death ... Wife should be respected by their husbands just as husbands expect their wives to respect them”
107. In consideration of an appropriate sentence for the offence of Assault occasioning bodily harm, I also cite the case of State v Oa (No. 2) [2021] PGNC 527; N9385 (31 December 2021).
108. In the Oa’s case, the Chief Justice, Sir Gibbs Salika, presiding found the offender guilty after trial and sentenced him to 2 years imprisonment in hard labour without suspension.
109. The facts of the Oa case were these. The offender being a Lieutenant with the PNG Defence Force, arrived home intoxicated with alcohol and began questioning
the victim over a duet video she had made on social media platform Tiktok. Before the victim could explain, the accused punched her
on her face with folded fists. The victim, while blocking more punches, lost her balance and fell onto the floor, at which point
the accused held out a heated clothing iron and placed it face down on her left thigh and burnt her. He then placed the hot iron
on the victim’s left side cheek and pulled it downwards thereby burning her left cheek and chest area. Whilst she lay crying
in pain on the floor, the accused further placed the hot iron on the victim’s abdomen and burnt her once again. The accused
attempted to prevent the victim from running away from him, head-butted her and hit her twice on her left side forehead with the
iron, as she struggled to get back on her feet. The victim managed to get back up and escape, seeking help from the military police
office located at the barracks.
110. As per the medical report, the victim sustained multiple second degree and superficial burn wounds to her left thigh, left chin,
anterior chest and abdomen, as well as laceration of her left side forehead measuring 6 cm in length and 1 cm deep exposing her skull.
The mitigating factors are he is a first-time offender, some form of compensation was paid to the victim and her family.
111. The Court considered that the aggravating factors were that the assaults occurred at the family home in the view of their children; the victim was overpowered and helpless; she was subjected to emotional distress, fear and trauma, the prisoner is a serving member of the PNG Defence Force which is a disciplinary force, there was abuse of trust, authority and dependency and the offence is a prevalent one and is domestic violence.
112. The case of Oa is a relatively comparable case to the present for these reasons. The offence occurred in a domestic setting, victim was overpowered
and helpless, victim was subjected to emotional distress, fear and trauma, there was existing relationship of trust, and the offence
of domestic violence is ever prevalent.
113. In distinguishing the facts of the Oa (supra) case to present, I say that in the Oa case, the victim sustained multiple second degree and superficial burn wounds to her left thigh, left chin, anterior chest and abdomen,
as well as laceration of her left side forehead measuring 6 cm in length and 1 cm deep exposing her skull. In the present case, the
victim suffered from a bruised back caused by use of a belt to whip her multiple times and a linear fracture on the mandible (jaw)
due to multiple punches and kicks all over her body and face. In the present case, the victim’s wounds have healed completely
over time. As such, for the offences of unlawful assault, I am mindful to impose a sentence lesser than the sentence in the case
of Oa, which was 2 years. I consider a sentence of between 12 - 18 months for each count as appropriate. I impose a sentence of 12
months imprisonment in hard labour as appropriate for each count of the offence of unlawful assault on the separate incidents.
Concurrency of Sentences for rape and unlawful assault
114. Counts 1 and 2 arise from the same set of facts and so the 11 years and 12 months sentences for the one count of rape and one count of assault occasioning bodily harm are to be served concurrently. The offender will serve only 11 years imprisonment in hard labour for both counts.
115. For count 3 of the offence of assault occasioning bodily harm, the offender will serve 12 months imprisonment in hard labour, to be wholly suspended on conditions for probation.
Suspension
116. On the question of whether the whole or a part of the remaining sentence of 11 years will be suspended, I consider that the PSR and character references show that the offender had prior good character. He has never been in trouble with the law before. The offender is not a threat to others in his community but he may be a direct threat to women who are in a relationship with him. I am satisfied that given the totality of the good character report of the offender, that he is someone, who when helped can be rehabilitated on how he can better handle domestic disputes and more particularly intimate partner relationships and issues. I will consider suspension of the head sentence.
117. On the whole, considering the seriousness of the offence of rape, the sentencing trend and the need to protect and promote the rights of victims of crime, and women in society, there is need for punitive and custodial sentence. Where the aggravating factors far outweigh the mitigating factors, I will only partially suspend the head sentence.
118. I therefore make these additional orders. From the head sentence of 11 years, I deduct 5 years and 6 months. The offender will serve 5 years and 6 months imprisonment in hard labour. Upon release the offender will be placed on probation with stringent conditions.
Final Orders
119. The final orders are these.
Orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Dotaona Lawyers: Lawyers for the Offender
[1] The Court said: “As the learned trial Judge pointed out, rape is a very serious crime warranting an immediate and strong custodial sentence. Though
there were aggravating circumstances (eg the existing relationship of trust between the appellant and the complainant, which the
appellant breached), none were charged in the indictment. Therefore under Section 347(1) of the Criminal Code the maximum sentence
that could have been imposed was 15 years”. (Judgment has no page numbers and no paragraph numbers)
[2] Adopted by the General Assembly Resolution 40/34, on 29th November 1985
[3] Chapter 29 of 2013
[4] Proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A)
[5] A N GROTH; A W BURGESS; L L HOLMSTROM RAPE - POWER, ANGER, AND SEXUALITY, NCJ Number, 43688, Journal, American Journal of Psychiatry Volume: 134 Issue: 11, Dated: (NOVEMBER 1977) Pages: 1239-1243, , Date Published, 1977, Length, 5 pages, Annotation, A CLINICAL TYPOLOGY OF RAPE IS DEVELOPED ON THE BASIS OF ACCOUNTS BY 133 RAPISTS AND 92 VICTIMS., Abstract descriptions of rape assaults given by offenders and victims in Massachusetts were analyzed, and the following classifications of sexual assault were identified:
(1) power-assertive rape, in which the rapist regards his act as an expression of his virility, mastery and dominance;
(3) anger-retaliation rape, committed as an expression of hostility and rage toward women;
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