State v Bonyaki [2023] PGNC 50; N10156 (22 February 2023)

N10156

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 287 OF 2021

THE STATE

V

SAPAK BONYAKI

Lorengau: Geita J
2023: 20^th,21^st,22^nd February

CRIMINAL LAW – Sentence after trial – Rape – s. 347 (1) (2) Criminal Code -Digital penetration by Medical Officer- Breach of trust – Medical Code of Practise not observed.

Cases Cited:
Goli Golu v. The State [1979] PNGLR 653
James Yali v. The State [2006] N2989
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale [1998] SC564
State v. Nick Teptep [2004] PGNC 148; N2612
The State v. Kenneth Penias [1994] PNGLR 48
The State v Seleu Mark Paul CR 1074 of 2018

Counsel:
Mr. Francis Popeu, for the State
Mr. Kusunan Pokiton, for the Prisoner

DECISION ON SENTENCE

22^nd February, 2023

1. GEITA J: The prisoner has been found guilty to one count of rape. The offence comes under s. 347 (1) (2) of the Criminal Code Act Chapter 262 and attracts a maximum penalty, subject to section 19, to imprisonment for life.
   

Facts.

2. The brief facts as found during trial and conviction on the count of rape are these: On 26 April 2017 the complainant, aged 22 years with three children, presented herself at Bipi Island Aid Post, complaining of a problematic menstruation cycle resulting in loss of blood for a prolonged period of time. The accused a male Community Health Worker at the Aid Post treated her with an injection and some pain killers. She was told to return the same day at 2 pm for a repeat injection and review. Upon returning to the Aid Post in the afternoon she was examined by the accused, without the presence of another female nurse in the medicine room with the room locked behind him. The accused then wore a surgical glove and inserted his fingers hard into the complainant’s vagina, causing her to bleed heavily. He then asked the complaint to bend down so that he could examine her from the rear. The complainant sensing that, that was not right protested, put on her clothes and left the room. The next day she sought help from the neighbouring Lesau Health Center and was admitted for 5 days. Since her condition was not improving, she was referred to the Lorengau General Hospital.

Antecedents

3. The state presented a brief antecedents report on the prisoner with no prior convictions recorded against him. The prisoner is aged 51 years and comes from Jowan 1 village, Lorengau Manus Province. He is married with two children, under 12 years.

Allocutus

4. In his allocutus the prisoner apologised to Court for what he had done. He prayed for a non- custodial sentence as his children were young and he was the only bread winner in the family. His father had died, and his aged mother was his dependent. He offered to pay compensation to the victim.

Mitigation factors

5. The circumstances of mitigation submitted by his Lawyer in relation to this offence are as follows:

1. No injuries caused to the victim.
2. First time offender.
   

Aggravating factors

6. No expression of remorse, serious breach of trust involved, prevalence of sexual offence in the Province. State resources expanded to run this trial by transporting witnesses from Bipi Island to and from.

Extenuating factors

7. Senior public servant who provided vital services to Bipi Island community until the commission of this offence.

Submissions for the prisoner

8. At this stage of the trial, the prisoner elected to deliver his own submissions from a prepared statement. Upon confirming with Mr Kusunan if this was the case, he agreed that the prisoner had elected to represent himself from here on. The prisoner was allowed to read the whole of his submissions into record. As one would expect from a layman preparing legal documents, his paper was a rehash of his evidence including trying to introduce new evidence in his defence. His submission in the main was defending his innocence on the allegation of rape. For the moment his submission was received as it is with contradictions and innuendos.

9. In view of these vacuum without legal representation the prisoner was encouraged by Court to reengage the services again of the Public Solicitor to make submissions on sentence on his behalf. He agreed.

10. The Court was invited to take note of the principles in Goli Golu v The State [1974] PNGLR 653 and Lawrence Simbe v The State [1994] PNGLR 38, to which I have done. They are noble principles. Mr Pokiton relied on the case of The State v Seleu Mark Paul CR 1074 of 2018, decided on by late Judge Gora in Manus. The accused on sexual penetration charge of a child under 16 years, was sentenced to 6years. Counsel submitted that a similar sentence be considered in this case, as the prisoners mitigation factors outweigh his aggravating factors. A head sentence of 10 years be considered with partial suspension of sentence on condition that the prisoner pay K5000 to the complainant.

Submissions for The State

11. Mr. Popeu for the State invited the Court to take into account the fact that the prisoner was found guilty of rape after trial. There were no mitigation factors favourable save him being a first-time offender.

12. As regards the absence of a pre-sentence report which may assist Court in determining whether a non-custodial sentence could be considered for him, Mr Popeu submitted against such sentences to be considered. In the Supreme Court case of Public Prosecutor v Hale [1998] PGSC 26; SC 564 (27 August 1998), the Court overturned a lower court decision and berated the lower Courts exercise of discretion in the absence of a pre-sentence report. The views and attitudes of the community to which prisoners are to be retuned must be sought first as that community must be responsible for the supervision of their own offending member. Mr Popeu submitted that since there is no report the views of the community on Bipi Island remain unknown.
    
13. The State concede that that since the rape involved digital penetration any unwanted pregnancy and or infection were not present, save for a serious breach of trust which might aggravate the crime. It’s been 6 years since the offence was committed and the prisoner has not made any attempts to pay compensation or attempted to reconcile with the victim. The case of The State v Yali [2006] PGNC (19 January 2006) was relied upon by Mr Popeu and submitted for a head sentence of 12 years. The prisoner recorded no circumstance of aggravation. Mr Popeu submitted that in the absence of a pre-sentence report none of the sentence ought to be suspended: (Public Prosecutor v Don Hale [1998] SC564). Furthermore, there were no special circumstances existing justifying a consideration from a wholly suspended sentence, Mr Popeu submitted.
    

Decision making process.

12. It is trite law that maximum punishments are best left for the worst types of cases. (Goli Golu [1979] and John Kalabus [1988] PNGLR 193. This case is not considered to be very serious warrant the imposition of a maximum sentence. However, the serious breach of trust as a “Health Worker and patient “coupled with the absence of genuine remorse make this case serious. Furthermore, no genuine attempts were made to offer some compensation or initiate Manus kastom of reconciliation. This was an Island Community who rely solely on their Aid Post and the health workers who run those vital services and were regarded very highly. In this case the complainant had no hesitation in seeking his help and referred to him a doctor. As it turned out the doctor, whom she trusted had done her wrong. Furthermore, the prisoner who prides himself with the observance of some medical ethics as regards male nurses attending to female patients, he has breached those medical code of ethics by conducting virginal examination without a chaperon.

14. Besides other rape cases, the two that come to mind include the case of The State v. Kenneth Penias [1994] PNGLR 48 and State v. Nick Teptep 2004] PGNC 148;N2612. Both of these cases called for rape offenders to be given long deterrence sentences. The case before is aggravated by the only male medical officer on the Island who took advantage of an innocent woman. In my view his only extenuating factor of being the sole medical officer, providing a vital service on the Island community of Bipi is watered down by the serious breach of trust. I shudder to think how many other innocent girls and women on the Island have fallen prey of his mischievous conduct in the past but have been too shy to come forward to tell their story. To this end I will adopt the sentiments expressed by the Courts in the two cases described above.
    

Remarks

15. Taking all of the circumstances into account, those in the prisoner’s favour and those against the prisoner, I consider that the appropriate sentencing principle in respect of this rape is one of deterrence. I do not consider it proper and safe for the accused to be considered for a full or partial sentence and have him return to the same community to serve as a Medical Officer. Ideally the views of the community would be reflected in his pre-sentence report however in this case the defendant has waived his right for one to be ordered. I take judicial notice of the Clan Chief’s pleas for a lenient sentence, but the wider community’s interests remain paramount. With respect to Counsel for defence, I do not agree that the prisoners’ mitigating factors outweigh his aggravating factors. In facts it’s the other way around and more damning.
    

Sentence

16. The sentence I therefore impose upon you in this Indictment is as follows:

1. Sapak Bonyaki, I sentence you to 15 years imprisonment in hard labour.
   

2. Your bail of K1000 will be returned to you.

Sentence accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner