Alop v The State [1987] PGSC 1; SC338 (31 July 1987)

Unreported Supreme Court Decisions

SC338

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 38 OF 1986
BETWEEN
STEVEN BEPI ALOP
APPELLANT
AND
THE STATE
RESPONDENT

Waigani

Kidu CJ Kapi DCJ Cory J
28 May 1987
31 July 1987

CRIMINAL LAW - Appeal against sentence - Rape - Whether 6 years excessive - Offence accompanied by violence - Sentence imposed not excessive - Appeal dismissed.

KIDU CJ KAPI DCJ CORY J: We entertained this appeal against sentence on 28th May 1987, disallowed it and affirmed the sentence of 6 years imposed by the National Court. We now publish our reasons.

The Appellant pleaded guilty to the charge of rape. He was 18 or 19 years old at the time of the offence and was working at the Kip Mission Station as a labourer.

The Complainant, from the same village as the Appellant, went to her garden with her niece to get some kaukau on the morning of 9th January 1987. About 10a.m. it started raining so they went for shelter in a garden house.

As she was trying to open the door of the garden house the Appellant grabbed her from behind by the neck. When she turned around the Appellant grabbed her right arm and pulled it across her neck and attempted to force her to the ground. They struggled and the Appellant bit her on the fingers and on her back.

Then he pushed one of his hands between her legs and forced his fingers into her vagina. He tore the inside of her vagina by doing this. She lost strength and fell down. The Appellant slapped her niece and the little girl ran away. She was still lying on the ground when the Appellant tore of her laplap and had sexual intercourse with her without her consent. She bled.

After he had raped her the Appellant showed her his knife and said: “I carry this knife to force women only and you’re my 4th victim.” He then ran off into the bush. She went and reported the matter to her brother-in-law who then went in search of the Appellant.

Joel Kimisi was in his trade store when he saw the complainant approaching the store. He noticed she had blood running down her legs and fingers and her lips and mouth were swollen up. He also saw that her blouse and laplap were torn. She told him that the Appellant fought her. As soon as he heard this he went looking for the Appellant. He found the Appellant but the latter escaped.

Peaol Hulump, a village Court Magistrate, was with Joel when the Complainant arrived. He said that the Complainant told him and Joel that the Appellant had assaulted her and had sexual intercourse with her. Whilst Joel went after the Appellant he took the Complainant to the Health Centre. But no examination was done on her at the Centre. So the next day he and others took her to Mendi General Hospital where she was examined by Dr J.M. Peters. His brief report reads:

“On examination her clothes were blood-stained (suggesting the hymen was broken in the rape) and has a large, dirty vaginal and perineal tear. Vaginal swab is negative for spermatasoa.”

When he was interviewed by the Police in the Mendi Police Station on 14th January 1986 he admitted having assaulted the Complainant and had had sexual intercourse without her consent.

We have set out substantial part of the evidence to show that the offence was accompanied by violence and perpetrated with determination. Any man who rapes a woman under such circumstances cannot expect to be treated with leniciency usually accorded those men who commit what we would call “an ordinary rape”. We emphasize that no rape of a woman can be called “ordinary” but for purposes of classifying rape cases we must categorize such cases. An ordinary rape case, in our view, is one where a man has sexual intercourse with a woman without her consent under circumstances not involving actual violence to the complainant.

We consider on the whole of the evidence and the sentencing pattern for rape in the last several years the sentence of 6 years was not excessive.

We dismiss the appeal.

Lawyers for the Appellant: Public Solicitor Mr E Kariko & J Yagi

Lawyers for the Respondent: Public Prosecutor Mr V Noka