Waim v The State [1997] PGSC 2; SC519 (2 May 1997)

Unreported Supreme Court Decisions

SC519

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 43 OF 1995
THOMAS WAIM
V
THE STATE

Lae

Kapi DCJ Andrew Sakora JJ
8 October 1996
2 May 1997

Counsel

Mr D Koegett for the Applicant

Mr R Auka for the Respondent

2 May 1997

KAPI DCJ ANDREW SAKORA JJ: This is an appeal against sentencing. The appellant pleaded guilty before Sevua J to four counts of rape. His Honour convicted the appellant on all four counts and sentenced him to 8, 15, 25 and 8 years imprisonment respectively. The learned trial judge then ordered that the sentences for the first, second and fourth counts be served concurrently with the 25 years sentence for the third, less the remand period of 4 months and one week. It was recommended by the judge that the appellant should not be released on parole.

The agreed facts reveal the following circumstances surrounding the commission of the offence. On the afternoon of 18 March 1995 at about 6 o’clock the victim and her boyfriend were walking towards the University of Technology campus. They were on their way from East Taraka. As they approached the campus gates the appellant went across the road to them and asked the victim why she was going to the University with her boyfriend. The victim explained why, but the appellant pulled her away from her boyfriend, back towards East Taraka.

As this was going on at the hands of the appellant, five other young men approached and threatened the boyfriend, chasing him into the University campus. They then followed the appellant and the victim. At a location where there was a cargo container, the appellant dragged the victim into the container, threatened her and had sexual intercourse with her without her consent. The threat was in the following words: “Do you want to see tomorrow or do you want to finish [sic]? If you want to see tomorrow then do whatever I tell you to do.” After he had finished he signalled to a friend of his who came in and also had sexual intercourse with the victim.

The gang, now made up of the appellant and his friend and five other acquaintances then proceeded to the beach across from the Sir Ignatius Kilage Stadium with the victim in a motor vehicle arranged by the appellant. There the seven of them took turns in raping the victim. She was also forced to engage in oral sex and was further subjected to sexual perversions and indignities. The gang with the victim then headed back towards East Taraka, going past the Waterboard Station at which they stopped the vehicle. The victim was then raped in turn by the appellant and his six accomplices. This forced sex was indulged in vaginally, orally and anally. Then proceeding further into the bush, the victim was once again subjected to forced sexual intercourse by the appellant and the other members. The appellant then left the scene, and left the victim, at this fourth incident.

The appeal is against the severity of the sentence, contending that whilst the sentence of 8 years imprisonment for each of the first and fourth counts respectively is within the range of sentences for this offence in this jurisdiction, the sentences of 15 years and 25 years for the second and third counts respectively were severe and excessive under the circumstances.

Learned counsel for the appellant submitted that the sentences of 15 years and 25 years respectively, and more particularly the ordering of the other and lesser sentences to be served concurrently with the more lengthy (3rd sentence) 25 years, were influenced by errors on the part of the learned trial judge, identified as the taking into account of the following:

· Use of weapons;

· Assaults;

· What happened after the appellant had left the scene of the fourth incident of rape.

The learned counsel for the State relied upon his extract of submissions, urging the court to consider the entire circumstances of the case, and, taking account of, particularly, the fact that this was a very serious case of rape, and that the appellant’s role in this was a prominent and leading one. The four incidents of rape with the accompanying acts of perversion and other indignities were committed the same night at four different locations by all seven men.

It was submitted, therefore, that the learned trial judge properly took due account of all the pertinent factors for and against the appellant, in the end quite correctly concluding that matters of aggravation outweighed those few factors of mitigation that he had alluded to. Therefore, it was argued, His Honour properly considered that ordering the other sentences to be served concurrently with the 25 years sentence for the third count adequately expressed the appropriateness of the sentence for the totality of the criminal behaviour of the appellant. Thus, it was contended, the learned trial judge fell into no error in the exercise of his sentencing discretion.

Both counsel have referred us to the pertinent case law and have helpfully discussed them briefly. There is no need for us to revisit these cases. The law is settled as to the requirements for demonstrating identifiable errors, and the powers of an appellate court: Norris v The State [1979] PNGLR 605. Similarly, the guidelines for sentencing in rape cases: Aubuku v The State [1987] PNGLR 267; The State v Kaudik [1987] PNGLR 201; and The State v Koupa [1987] PNGLR 208.

From our perusal of the judgment on sentence (Appeal Book, pp. 16-22) we see no reference to the use of weapons. We note, however, that His Honour makes references to what happened to the victim after the appellant had left the fourth scene of the crime (Appeal Book, p. 17, lines 9-13, p. 18, lines 19-21). These were in relation to being punched on the face and mouth, and further sexual assaults at Bumbu river. The appellant was not a part of these later incidents.

It is our judgment, however, that His Honour’s references to these later incidents did not constitute identifiable errors such as to properly vitiate the exercise of his sentencing discretion. We hold that these references were made as part of the whole aggravating circumstances that the learned trial judge noted and took into account. We agree that His Honour ought not have taken these later matters into account. In relation to the learned defence counsel’s reference to the use of weapons, we have not been able to locate reference(s) on this in the judgment.

It is our judgment also that His Honour properly took account of the other pertinent aggravating factors, highlighting these prominently and, trying to balance these against those few favourable to the prisoner, quite correctly concluded that the mitigating factors decreased into insignificance. Seven men took turns in raping the victim at four different locations over a period of time, some indulging in forced anal and oral sex as well as vaginal sex, and subjected her to other indignities. The appellant was the initiator and leader in all of these incidents.

We are of the opinion that the learned trial judge was quite proper in considering sentences greater than the 12 years in The State v Kaudik (supra), and, indeed, the 8 years starting point suggested in Aubuku v The State (supra). Those cases were decided 10 years ago, and there has been an escalation in the prevalence and seriousness in the commission of rapes and multiple gang rapes over the period. This alarming fact calls for proper and adequate reflection in the sentencing decisions of our courts. Thus, 12 years for gang rape is now, in our respectful opinion, inadequate and inappropriate. Some recent decisions of the National Court have properly reflected the community’s concerns and imposed sentences of 14, 15 and 16 years.

This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a “quantum leap” under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed.

We note that the appellant pleaded guilty. The Court must take due account of this, as the immediate effect of this was to make it unnecessary for the victim to come as a witness to court and re-live her harrowing and terrible experience at the hands of the appellant and his accomplices. And unlike in other rape cases there were no weapons used, and no violence other than that associated with forced sexual intercourse was involved here. No life was lost here. And there is no evidence of any long-term injuries sustained by the victim, although it was a terrible experience.

In the end result, it is our judgment that the sentence of 25 years was excessive under the circumstances. We would, therefore, overturn this sentence, substituting it with a sentence of 18 years. The sentence of 15 years for the second count is hereby confirmed as being appropriate. We confirm the learned trial judge’s order that the other lesser sentences of 8 years (for counts 1 and 4) and 15 years (for count 2) be served concurrently with this 18 years (for count 3) sentence. In addition we would quash the learned trial judge’s recommendation that the appellant should not be released on parole, on the basis that there is presently no power to make such a recommendation.

Lawyer for the Appellant: Public Solicitor

Lawyer for the Respondent: Public Prosecutor