PNG Law Reports 1996
[1996] PNGLR 280
SC504
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
JAMES MORA MEAOA
V
THE STATE
Waigani
Kapi DCJ Los Doherty JJ
July 1996
APPEAL - Conviction - Appellant appealed against conviction on 1 count of rape and sentence of 14 years – Appeal in vague terms.
CRIMINAL LAW - Appeal against sentence - Rape of 12 year old - Breach of trust in defacto duty - Position of vulnerability of victim – Residual injury to victim.
Facts:
Appeal is against conviction and sentence. The appellant had been convicted and sentenced in relation to a rape of a pre-pubescent girl.
Held:
1.       Breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. Positions of trust are not limited and may extend to such defacto situations as a vehicle or boat operator and his passengers.
2.       The extra distress of a trial in a sexual offence means the loss of reduction in sentence which a plea of guilty brings.
3.       Rape is regarded as a most grave offence and warrants a punitive sentence.
4.       The appeal on conviction and sentence was dismissed and sentence re-affirmed.
Cases Cited:
Aubuku v The State [1987] PNGLR 267
State v Kaudik [1987] PNGLR 201
State v Penias [1994] PNGLR 48
State v Waim [1995] PNGLR 187
Counsel
Appellant in person
K Manek for the State
July 1996
KAPI DCJ LOS DOHERTY JJ: The appellant appeals in person against conviction and sentence following a trial in the National Court held at Kerema on the 11th August 1995.
His grounds of appeal were:
1.       The trial judges decision was harsh and he erred in law; the prisoner had witnesses who were not called to testify thus the trial was not a fair one; the prisoner proved his innocence that went into deaf ears and other grounds that could also be filled (sic).
At the hearing the appellant did not pursue the second ground concerning witnesses, as Mr Manek has pointed out in submission he was on bail for some time prior to the hearing and had adequate time and opportunity to arrange his witnesses.
The appellant spoke in general terms concerning the conviction and sentence and did not point to any specific error on the part of the trial judge. For purposes of this appeal we will treat his appeal as against conviction and sentence.
The appellant was indicted with another man of rape of a girl on 24 September 1994; three men were allegedly involved. One had not been arrested at the date of trial but we are informed he has subsequently been arrested. The appellant and his co-accused pleaded not guilty and were found guilty of the rape after a trial.
The evidence shows that the appellant was the operator of a dinghy travelling from Port Moresby to Lavare in the Gulf Province on 24th September 1994. Among others on board were his co-accused; the prosecutrix then aged about 12 years and members of her village. The prosecutrix and her fellow villagers were from the inland mountainous area, they could not swim. The appellant was not the usual operator of the boat; this led to some initial confusion when the matter was reported to the police as they did not know the appellant’s name and the normal operator’s name was mistakenly entered. That confusion was resolved at the trial and has never formed part of the defence case either on trial or before us.
The learned trial judge considered that there was some suggestion that the appellant was under the influence of liquor or drugs whilst in control of the boat. The boat capsized, there is some suggestion this was due to his condition coupled with high waves as the boat approached the mouth of the Lakikamu river. The prosecutrix and her fellow villagers could not swim and clung to the upturned boat. The appellant helped the prosecutrix to get on shore. At that point the prosecutrix was the only female passenger. There is no evidence to suggest that the appellant returned to assist other passengers either from his evidence or the State evidence.
The prosecutrix’s evidence shows that the appellant “grabbed me and swam with me to the sand bank than he said something like this” if you let go of me I will kill you.” Then he pushed me down on the sand and he had intercourse with me ... I felt pain”. As she struggled to get up and replace her clothes the co-accused came and also raped her followed by the third man. She describes the pain and injury, she was left naked on the ground and a relative, who had got on shore, covered her with a coat. They remained on the sand bank until the next day when they made their way to Kerema.
The prosecutrix was hospitalised and the medical report which was tendered by consent showed horrific injuries stating, “speculum examination of the vagina was impossible because of the narrow passage” but there were multiple lacerations and bruisings within the lateral vagina walls, a tear extending to the wall of the rectum which had become infected due to sand and pus. She was hospitalised for approximately ten days and there was extensive scaring internally which is permanent and will lead in future life to difficulties in child birth.
The learned trial judge had noted that the prosecutrix was prepubescent at the time of trial, one year after the incident. She was obviously young at the time of the incident.
A relative of the prosecutrix who had also made his way on shore heard her screams and her calling out his name he came and found the girl and the appellant but “was so scared” that he “stood there and did nothing I only heard her scream. She was screaming, saying they are spoiling me you come and stop them” he saw the appellant and his co-accused.
Other witnesses also described finding the girl and the presence of the appellant. The appellant merely denied any action in the trial court saying that she and her relatives were lying and denying any act of sexual intercourse between them. He gives no explanation as to how the girl came to be in the condition described by the doctor.
We consider that the learned trial judge considered the law and the rules concerning recognition in accordance with the guidelines in State v Peng and was satisfied at the correct identification of the appellant and considered all aspects of the evidence surrounding the act of sexual intercourse. We can find no errors in his findings of fact and we uphold the conviction and do not allow the appeal against conviction on either grounds.
The appellant also appealed against sentence. He was sentenced to 14 years in hard labour. The learned trial judge referred to the age of the girl which he estimated to be 13 at the date of trial and 12 at the date of attack, he commented that she was small and slightly built and at that she was in vulnerable position after being capsized he noted the force and the bad assault and residual injuries. He referred to her being “subjected to a bestial attack by opportunist survivors of the shipwreck”, and the appellant showed a “careless disregard for the young girl’s welfare. If the expression “take a chance” means to brutally rape any girl who happens by when a man is free to dominate her then these mens’ community needs to look at its values. They do not accord with societies (sic) common values.” With this we agree.
Mr Manek has stressed the fact that this girl and her family were from the mountains and were unable to swim, they were in a vulnerable position as inland people are at sea and the appellant took advantage of that vulnerability. We agree with counsel on this.
The Supreme Court and the National Court in previous cases have spoke of a breach of trust as an aggravating factor in sexual offences. There are classes of fiduciary relationships well recognised in the Court e.g. parent and child, school teacher and pupil, doctor and patient but there are defacto situations which the court can also consider and has considered eg a policeman and his prisoner (Aubuku v The State [1987] PNGLR 267) or situations such as this where a person in control of a vehicle or a boat has duty of care to his passengers which he abuses by taking advantage of their vulnerability to inflict injury and, in the case of a female passenger to rape her. We consider that this breach of a defacto duty towards his passengers is particularly aggravating circumstance in this case before us. 
We also agree that the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they on a public road, in the gardens or as here on the coast. We agree that the right of all persons female as well as male not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless of age or background. We restate what was said by Injia J. in State v Penias [1994] PNGLR 48:
“Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence.”
The National Court in recent years has been calling for severer sentences in rape. For example Sevua J. in State v Waim [1995] PNGLR 187 has suggested that the guidelines in Aubuku should be reviewed. Referring to the decisions in Aubuku v State (supra) and State v Kaudik [1987] PNGLR 201 Sevua J. said:
“that was seven years ago. Rape is still a very prevalent crime in Papua New Guinea. Both prior and subsequent to these two cases Courts have warned over and over that sentences would increase.”
We also repeat what was said by the Supreme Court on Aubuku v The State [supra].
“The extra distress that giving evidence can cause to a victim means that a plea of guilty perhaps more so than the other cases, should normally result in some reduction from what would otherwise be the appropriate sentence.”
Amet J. (as he then was) said in The State v Kaudik [supra] which we quote and adopt:
“Rape is generally regarded as the most grave of all sexual offences. In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences, the reasons for this are set out as follows:
“Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy.”
“Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and remarked that it involved an act which we as a society attach considerable value”.
We adopt and restate this and note that in the case of Peter Kaudik a case also involving a young female who was a subject of gang rape after abduction. This sentence of 12 years on a plea of guilty was imposed.
We note the particular factors in this case - the position of responsibility the appellant had to the victim, the age and vulnerability of the victim, the severe assault, the residual injuries, this was a trial where she was made to relive the experience.
We also note the high number of rapes in proportion to other crimes committed in Papua New Guinea as shown by the Judges report to the Parliament and consider that this Court must show that such behaviour will not be tolerated. In this circumstances we do not consider that the sentence was excessive and we confirm it.
Appellant in person
Lawyers for the State: Public Prosecutor