PNG Law Reports 1995
[1995] PNGLR 195
N1355
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
LAWRIE PATRICK;
PHILLIP LAHARI;
MARK NAINAS AND
MOKO HOKAIA
 
Lorengau
Sevua J
23 June 1995
SENTENCING - Criminal Law - Rape - Rape committed upon 16 year old - Sentence guidelines - Pack rape - Starting point eight years - Aggravating factors - Intoxication not mitigating circumstances - - No diminished responsibility - First and second accuseds committed actual rape - Third and fourth accuseds counselled/procured & aided/abetted - Principal offenders, Criminal Code, s 7 (1)(c) & (d).
Facts
The four accused were found guilty of raping a 16 year old girl. All four accuseds were members of the discipline forces, namely the Navy, and were based at Lombrum. The first two were found to be the actual perpertrators of the rape, and the other two as principal offenders procuring aiding and abetting the offence. The Court considered sentences. 
Cases Cited
Papua New Guinea cases cited
Aubuku v The State [1987] PNGLR 267.
Belawa v The State [1988-89] PNGLR 496.
Gimble v The State [1988-89] PNGLR 271.
Mase & Anor v The State [1991] PNGLR 88.
Osborn Kwayawako & 5 ors. v The State SC 392.
State v Kaudik [1987] PNGLR 201.
The State v Bruno Kaski & Ors. unreported and unnumbered, 22 January 1994.
23 June 1995
SEVUA J: The four accuseds were found guilty, after a trial, of the rape of Olivia John, at Lombrum Naval Base on 24 December, 1993.
Lawrie Patrick and Phillip Lahari were convicted of actually raping the prosecutrix in two separate acts of sexual intercourse. Mark Nainas was convicted as a principal offender pursuant to s 7 (1)(d) of the Criminal Code for counseling or procuring Lawrie Patrick to commit rape upon the victim. And Moko Hokaia was also convicted as a principal offender pursuant to s 7(1)(c) of the Criminal Code for aiding Phillip Lahari to commit rape upon the prosecutrix.
The trial lasted seven days and involved eleven prosecution witnesses and five defence witnesses including the four prisoners. As is usual in a rape trial, the victim was under stress from the traumatic experience she was subjected to on 24 December, 1993. During the trial which attracted a packed courtroom almost throughout the trial with even a bigger crowd of spectators surrounding the courtroom, the victim was subjected to the embarrassment and pain of recounting publicly, the crime of rape committed against her. This was a hight profile trial since it had attracted a lot of publicity and attention within the small township of Lorengau and the Lombrum Patrol Boat Base as well. The intensity of this trial was manifested by the fact that the courtroom was always packed to capacity each day and there was always a huge crowd of listeners outside the courtroom and within the fenced perimeters of the courtroom. In my view, the sentence must reflect that this was a trial in which the victim had to recall her degradation.
Counsels have cited two well known cases which deal with the sentencing principles for this crime and which I would advert to. They are, The State v Peter Kaudik [1987] PNGLR 201 and John Aubuku v The State [1987] PNGLR 267, the latter being a Supreme Court decision on appeal which approved and followed the former which was a decision of a single Judge, Amet, J (as he was then).
Mr Jubilee Jr counsel for the defence has submitted that this case falls under the third category in John Aubuku v The State, which recommends a starting point of eight years, but urged the Court to exercise its discretion under s.19 of the Code by imposing a lesser sentence on the grounds that, first, the victim was in an area (Single Quarters) which was out of bounds to females, secondly, that the prisoners were drunk therefore dispossessed of their power of vision to some extent, and finally, when released on bail, their freedom were restricted by certain bail conditions which they complied with. These matters should therefore be considered in their favour and they should be given the benefit of same.
With the greatest respect to Mr Jubilee Jr, I do not think I can accept the first ground of his submission. The fact that the single quarters was out of bound to females did not grant the right nor the licence to rape a female who wonders there, far from it. The prisoners were members of a disciplined force and the force together with the community expect disciplined behaviour from servicemen at all times. 
They cannot use intoxication as a mitigating factor and in this respect, I adopt what the Supreme Court said in Mase & Anor. v The State [1991] PNGLR 88 at 91: “the alcohol factor was also mentioned in mitigating factor but as far as I am concerned, it could have no bearing on the sentences. If people drink liquor, get drunk and commit crime they must not expect leniency from the Courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility.” In the present case, I do not consider that the effect of the prisoners’ intoxication amounted to diminishing responsibility. This was a self inflicted intoxication. All the prisoners including many other servicemen went on a drinking spree on the night of 23 December, 1993. In my view, their drunken conditions and behaviour on the morning of 24 December, 1993 was a disgrace to the Papua New Guinea Defence Force. There can be no place for a drunken and undisciplined serviceman in a disciplined force. I accept that the prisoners, whilst on bail, had fulfilled conditions of their bail. To me, it was to their advantage and for their own benefit that they comply with bail conditions otherwise their bail would be revoke and they would return to custody.
All the prisoners are first offenders, although they are not young. Lawrie Patrick is 27 years, Phillip Lahari is 25 years, Mark Nainas is 25 years and Moko Hakaia is said to be 20 years, but I note that in his record of inteview on 10 January, 1993, he said he was 20 years. I would think he is now 22 years. They have expressed remorse and asked for mercy and leniency. They have asked for a good behaviour bond or a release on probation and I want to address these two matters here. Rape is one of the most serious violent crimes in our criminal law. In Peter Kaudik, the Court held that, “the offence of rape is a serious crime which calls for immediate punitive custodial sentence than in wholly exceptional circumstances”. 
In my view, no exceptional circumstances exist in this case that would dissuade me from imposing a sentence other than a punitive custodial sentence. I adopt what His Honour, Amet, J (as he then was) said in Peter Kaudik at 204: “the sentence of this Court I believe should reflect the society’s after revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same right as do men, in their private persons.”
As to the prisoners’ expression of remorse, it would have been much more genuine in my view, if such remorse were expressed after a plea of guilty. My view is fortified by what the Supreme Court said in Wellington Belawa v The State [1988-89] PNGLR 496 at 501 where the Court was dealing with an appeal on misappropriation. The Court said, “the sooner restitution is made after the commission of the offence, or after the detection of the offence, the more clearly it shows remorse. If it is made on the eve of the trial immediately after conviction, it does not show remorse.” In the present case, all four prisoners expressed remorse after conviction, therefore in my view, such expression did not show genuine remorse or genuine feeling of sorrow and guilt for the crime committed upon the victim.
I have considered all the matters that the prisoners and their counsel have put before me in mitigation. As to the issue of good behaviour bond and probation, I consider that, these alternatives are quite inappropriate because, I consider this case to be a very serious one, even though it could not be categorised as one falling into the worst type of cases. 
I am of the view therefore that a custodial sentence is appropriate in this case. The National Court has warned so many times that sentence for rape would increase and in recent years, sentences for rape have increased. A lot of offenders including these prisoners have not heeded that warning. The sentence therefore should be a deterrent to the prisoners themselves and to other possible offenders.
I take into account the following mitigating and extenuating and aggravating factors:
1.       Your lack of prior convictions. All of you are first offenders.
2.       The rape was not planned but it was obvious that the victim did not want sex and struggled to get away.
3.       Your career as servicemen would no doubt be terminated upon your conviction and your good service records have now been destroyed.
4.       There was violence over and above the force necessary to commit rape, however, there was no use of a weapon and the victim was not stabbed or otherwise injured, apart from the injuries the doctor noted.
5.       The victim was subjected to sexual perversion and indignity, especially by Lawrie Patrick.
6.       The rape was not repeated although there were two separate acts of sexual intercourse.
7.       All of you were drunk and acted in concert and that is why this case should fall into the pack-rape category.
Earlier on, I alluded to the fact that sentences for rape have been increasing. Pack rape in the past years or so have attracted sentences ranging from 10 to 14 years for pleas of guilty and in one case, a trial. I have been consistent with my sentencing policy on pack rape and perhaps I should say that if you had pleaded guilty, you would have got seven or eight years because a plea of guilty usually attracts a discounted sentence.
On sentence, I have considered other cases, two of which were referred to by counsels. Peter Kaudik pleaded guilty and was sentenced to 12 years. It was a pack rape of a 17 year old where the victim was dragged and carried into the bush, she was repeatedly raped by about eight people and far worse sexual perversions committed upon her. John Aubuku was sentenced to 10 years after a trial, however, he was a policeman who raped a female detainee, therefore the sentence in that case was not for a pack rape. In The State v Michael Amuna Koupa [1987] PNGLR 208, the prisoner was sentenced to 12 years in a pack rape. He received sentences for other crimes involving the same victim in the same incident. He pleaded guilty. In Mase & Anor. v The State, the prisoners’ initial sentence of 18 years for rape and armed robbery was reduced to 14 years on appeal. This was also a pack rape. There are two distinguishing features I should highlight here. In those cases, the offenders pleaded guilty and they were all young offenders, around 18 and 19 years of age. Your case was a trial and that fact should be reflected on sentence.
Counsel for the State has referred the Court to a similar case which also originated from Lombrum Patrol Boat Base. It is The State v Bruno Kaski, Alex Amos and Samson Willie unreported and unumbered, which involved the pack rape of a victim who was repeatedly raped and seriously injured (broken arm) and involved far worse sexual perversions and indignities. Two of the three accuseds were convicted and sentenced to 18 years while the third was sentenced to 16 years.
Your case is very similar to that case which was in fact decided in January, 1994 shortly after you all were arrested. In fact, if my memory serves me correct, you, Mark Nainas was also alleged to have been involved in that case, however your case was withdrawn. That case was one of the worst type of pack rape and the facts are quite different to the facts of your case. The only identical aspects are that the rape were committed in Lombrum, both cases involved drunken servicemen and both matters proceeded as trials. However, to your advantage, the factual situation and circumstances of the former case were far worse than your case. In fairness to you, I therefore consider that the sentence in the present case should reflect the apparent disparity of the factual situation and circumstances of that case. I have considered a term of 14 or 15 years in your case, however, due to what I have referred to above, I feel that a slightly lesser sentence would be appropriate in your case.
Although, two of you have been convicted of rape as principal offenders pursuant to s.7 (1)(c) & (d), in that you did not actually rape the victim, but counseled / procured and aided / abetted the other two prisoners respectively, in principle, there can be no disparity in sentence. The general rule is that all active participants in the crime should be sentenced on the same basis. In Gimble v The State [1988-89] PNGLR 27 at 273, the Supreme Court said, “the Court does not normally stop to consider whether a particular prisoner actually held up the victim or held the gun, or the iron bar or was a watchman outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.” In Osborn Kwayawako & 5 Ors. v The State SC. 392, 30 November, 1989 at pp. 8-9, the Supreme Court also upheld the same principle. I will apply the same principle in your case too. 
In all the circumstances, I sentence each of you to 12 years imprisonment with hard labour, less 11 months 2 days pretrial custody. Warrants of commitment for the balance of 11 years 3 weeks and 5 days will be issued.
I order that cash bail for each of you in the sum of K200.00 be refunded.
I recommend that Lawrie Patrick be transferred to Kerevat CIS, Rabaul and Mark Nainas be transferred to Boram CIS, Wewak.
Lawyer for State: Public Prosecutor.
Counsel: Michael Peter.
Lawyer for accused: Jubilee Lawyers.
Counsel: Ephraim Jubilee Jr.