State v Bailey [2024] PGNC 103; N10757 (24 April 2024)

N10757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 66 OF 2023

THE STATE

V

PETER BAILEY

Bomana: Miviri J
2024: 04^th & 24^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – S347 CCA sexual penetration Without Consent – 29-Year-Old Biological Sister – Offender Biological Brother – Serious Breach of Trust – Took Advantage She was drunk and sleeping – He was also drunk – Medical Report No Injuries – First time Offender 37-year-Old – Protection of Family Unit – Plea – Intent to Withdraw Matter forgiving Prisoner – Serious Offence Likened to Incest – Strong Deterrent Punitive Sentence – 15 years IHL.

Facts

Accused and complainant are both biological brother and sister who drank alcohol. She was drunk and slept. Accused removed her shorts and pants and penetrated her vagina with his penis and had sexual intercourse. Their father saw the matter and reported to police.

Held
Basic Unit of Society Protection of.
Serious Breach of Trust.
Brother & Sister.
Prevalent offence.
Drunk sleeping.
Stern & Deterrent Sentence.

Cases Cited:
Louha v State [2024] PGSC 20; SC2551
Golu v The State [1979] PNGLR 653
Aubuku v The State [1987] PNGLR 267
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
Yalibakut v State [2006] PGSC 27; SC890
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
State v Kaski (No 2) [2022] PGNC 432; N9791
State v Sikai [2024] PGNC 16; N10660
Tardrew, Public Prosecutor v [1986] PNGLR 91
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
Kalabus v The State [1988-89] PNGLR 193
State v Hagei [2005] PGNC 60; N2913
State v Kesu [2006] PGNC 208; N5450
State v Mongi [2011] PGNC 88; N4364

Counsel:

S. Patatie, for the State
T. Yapao, for the Defendant

SENTENCE

24^th April 2024

1. MIVIRI J: This is the sentence upon Peter Bailey of Guhi village Kandrian Gloucester, West New Britain Province who sexually penetrated his biological sister Emelda Peter without her consent.
   
2. He was charged pursuant to section 347 of the Criminal Code 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.”

It means the minimum sentence on a simple rape without circumstances of aggravation will draw 15 years imprisonment. Here circumstance of aggravation has been pleaded: Louha v State [2024] PGSC 20; SC2551 (5 April 2024), that Peter Bailey is the defendant, Emelda Peter’s biological brother contrary to section 349A (f) of the Criminal Code. So, the maximum sentence due him is imprisonment for life which will entail should the facts circumstance aggregate that this is the worst case of rape: Golu v The State [1979] PNGLR 653.

3. It is a very serious case but certainly is not the worst case of rape committed by a brother upon a sister. Therefore, a term of years will be visited for the offence here. That will be the aggregate of the consideration of all aggravating, mitigating and extenuating features of the case. And here it is relevant to consider tariff and range as part of the process to determine proportionality of the sentence due the prisoner: Aubuku v The State [1987] PNGLR 267 is on point in this regard. But it remains that the discretion of the Court: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) is not chained because each case will be peculiar by its own facts and circumstances stemming sentence due: Simbe v The State [1994] PNGLR 38.
   
4. I pose to consider the facts pleaded to on arraignment, which were that Emelda Peter is 29 years old biological sister of the accused Peter Bailey. Both are from mixed parentage, West New Britain, and Central Province. On the 04^th December 2020 both Prisoner, and complainant were at their family home at Gereka. They sat at the veranda, played music, and drank three (3) 40-ounce Blue Berry. Around 1.00am to 2.00am the place went quiet, their family were sleeping inside the house, their father Peter Kauna went to check on them, but noticed that the door was bolted outside. He went over to the window and peeped out, there he saw the Accused Bailey was on top of his sister lifting her legs and sexually penetrating her.
   
5. Mr Kauna then knocked on the door, Bailey opened the door and moved aside, Mr Kauna switched on the torch, lifted the bedsheet, and noticed that Emelda was naked from her waist down while she was fast asleep. Mr Kauna then called his younger son Joshua Peter to help carry Emelda into the house, they covered her with a bedsheet and brought her into the room. When she woke up on the next day she noticed that she was naked from her waist down and the bedsheet was covered with blood. Mr Kauna then informed Emelda of the incident.
   
6. The State alleges that when the accused sexually penetrated the complainant by inserting his penis into her vagina without her consent, his actions contravened section 347 (1) and (2) of the Criminal Code. In aggravation the state further alleges that when Peter Bailey sexually penetrated Emelda Peter his biological sister his actions contravene section 349A (f) of the Criminal Code. Reading this prima facie, it aggravates the offence that the accused has pleaded guilty to. It is the facts upon which his sentence will follow: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). Pertinent at the outset is the fact that rape is personal unto the victim, here the biological sister of the prisoner. She will live with the fact that her own biological brother carnally penetrated her. It is a personal and private matter which she sets out in the victim impact statement she has filed of the 15^th April 2024.
   
7. She is 30 years old married to one Joe Mana and had a son from that union, but he had an affair with another so is no longer her. She is a single mother and has lived with her family since 2018 with her parents. In this unexpected incident she was very angry and confused why her elder brother the prisoner would do such a thing against her. But she did not intend to take the matter to court and report to police. She understands that he was drunk at that time of the commission. “My dad insisted on taking the matter to the Police. I did not say anything because I am a single mother burdening him with my child and now this is another problem. I do not want to pressure him.
   
8. After the matter was reported Bailey’s wife (sister-in-law) and her two sisters came over and fought with me, they swore me and dragged me on the floor half naked. She swore me and threatened me, she said, “yu no inap sindaun gut, me bai go kam yet na destroy.” She further asked for compensation, and we paid compensation a sum of K2000 and K900 worth of store goods to her and her relatives. She pleads that she has her son enrolled at Coronation Primary School but is conscious of her safety and the threats accompanying. She also looks after their sick mother who is wheelchair bound. And that the prisoner is the elder brother, and she has forgiven him and wants the matter to be settled outside of the Court. Because if he goes to prison her life will be put under stress emotionally, physically, mentally which make her life hard. And it will be worse if he is imprisoned. That is basically her statement as victim of the offence.
   
9. It is shameful when biological sister is raped by her own biological brother. He is her protector, her armour, her sibling who became her assailant. The consequences that have flowed because of the offence show abhorrence of the offence. The reactions of the wife of the prisoner are natural and cannot make the penalty any less lighter against the prisoner. Because this is an offence within the family home where all were supposed to feel safe secure. She was enjoying time with him her biological brother who took advantage of the fact that she was drunk and not in a position to fight back his desires upon her. All to be witnessed and brought to light by the father who brought them into this world, his children born from his union with their mother. That makes this offence a very serious breach of trust authority and dependency. It will be entailed into the sentence bearing in mind that this is a family home where the sister has been violated under no fault of hers. The sentence must bring protection of the law within the family and the home. That is the basic unit of society it must be protected by the law.
   
10. 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. In my view the enlightenment of the Supreme Court in Aubuku v The State [1987] PNGLR 267 where circumstances of aggravation draw up the sentence due the prisoner. Here is rape that is committed by a trusted person, the brother of the girl. It was promulgated that 8 years be the starting point given. No doubt that would be favourable to the prisoner. But this is an offence that is prevalent. Since that view from 1987, the offence continues to be as prevalent as ever, this is 2024. Time has moved and with it has come prevalence rather than desisting of the offence of rape: State ats Teptep [2004] PGNC 148; N2612 (13 May 2004). Prisoner will draw his sentence from the facts and circumstances here.
    
11. 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.
    
12. 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. Here is a natural biological brother and sister. Therefore, the sentence would be applicable given. It would follow similar trend as in State v Kaski (No 2) [2022] PGNC 432; N9791 (20 July 2022) where protection of the family unit must be stressed by strong deterrent and punitive sentences. That is emphasised by State v Sikai [2024] PGNC 16; N10660 (19 February 2024). I do not accede to any facts that illuminate here to sway that the sentence follows in similar based on Tardrew, Public Prosecutor v [1986] PNGLR 91. Yes, it is a guilty plea and the views of the family with the victim to forgive him. But it is a serious attack on the basic family unit that must be protected and stopped by strong deterrent punitive sentence.
    
13. I am not swayed that the medical condition is such that the sentence must be suspended. He will undergo treatment ably from jail. He will serve that term and undergo treatment due him without any handicap. He has Penile Fibroma and Chronic Infections of foreskin (Prosthitis) with complications, Urethral stricture, urinary tract infections-Clinical left Pyelonephritis, Psychosis (inorganic). He is recommended for medical investigations, treatment and care at a hospital facility required. Requires assessment by a urologist, interplast specialist and psychiatrist in a hospital setting. This is by the medical report of one Doctor Benjamin Thomas dated 28^th August 2023 that has been filed as part of the presentence report ordered by this court as of the 22^nd April 2024. And which is photographed showing the deformed penis of the prisoner. He is suffering not because of the offence but a condition that was within him. Certainly, that condition did not deter him from committing the offence. And he went to pains to commit the offence, the door out on to the veranda where he and the sister victim was locked so that no one could get to what he was doing against his own sister. He planned to commit the offence. He will be sentenced accordingly. He did not consider his personal circumstances when he set out to commit the offence: Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000).
    
14. His medical condition can be attended to whilst he is incarcerated. It will not distil nor set aside the intent of the legislature. The sister will be protected. He is old and matured enough to know what he did was wrong. The gravity of the offence outweighs any views that because it has been committed within the family, he must be let off the hook. He is a matured 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 any difference in mitigation. 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. He is the father of five children with a wife to whom he could have gone to satisfy his lust. He chose his blood sister to perpetrate the offence.
    
15. 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 always protected. His actions have destroyed that family, and the law must lay out its domain. It is not the worst warranting life imprisonment upon him as was Kalabus v The State [1988-89] PNGLR 193 or State v Hagei [2005] PGNC 60; N2913 (21 September 2005) which is extenuating because the relatives of the deceased speared and killed the prisoner who miraculously came back to life. The Court anticipated the death penalty but opted for life imprisonment. It is not the same here. There are no extenuating circumstances. The fact that the sister has forgiven him for the offence is not extenuating. Nor is the fact of his medical condition extenuating because he can and will be treated by CIS taking him to hospital with the medical report that the Doctor has made set out above.
    
16. It is not extenuating that he was affected by voluntary intoxication. He took it upon himself to indulge in the abuse and consumption voluntarily of alcohol. It will not defeat what is due in law to him for the offence. Both he and complainant sister voluntarily consumed and sought to continue with the help and the provision by the father of the means to secure further when they ran out of supply. He is now saying that peace has been restored and the prisoner be left off any further punishments relating. This is subjected out in the presentence report filed. Because the family has forgiven the prisoner and made amends with him, the Court should follow likewise. In my view that is not how the law operates and dispense Justice. What has been professed by the family in the presentence report as to their relationship will be considered in the sentence. They are part of all before the court to be considered to arrive at a just and proportionate penalty for his wrong.
    
17. This Court has stressed to protect the family, and this is not anew. 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.
    
18. No reason is apparent or identifiable to sway other than a custodial term due the prisoner for the crime of rape committed upon his sister. He has pleaded guilty and is a first offender. The family with the complainant has forgiven him for the offence and would want him to serve a lenient term considering. But it is a serious offence depicting violence. Here she was driven beyond fighting against him. She was so intoxicated that he perpetrated the offence without any resistance. It would not have been discovered had it not being for their father. The family is the basic unit of society and ought to be protected by the rule of law by strong deterrent and punitive sentences. She did not drink alcohol with him so that she be raped in her own family home by him her first-born biological brother. She was the third born. What he did only animals do that not man. His self-intoxication by alcohol does not in my view mitigate the offence. The Allocutus is self-serving does not add or minus the sentence in any way. He has apologised and accepted that he was wrong.
    
19. I consider in view of all set out above that the fair and just sentence due the prisoner is 15 years imprisonment and I so impose that upon the prisoner for the offence committed upon his sister Emelda Peter on the 05^th December 2021 at Gereka Port Moresby. I order that time in custody will be deducted forthwith. He will serve the balance in jail. I do not consider any basis apparent or identifiable for suspension of the sentence. He will be assisted in his medical condition from jail by the CIS appropriately.
    

Ordered Accordingly.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant