[national court of justice]

the state

v

bernard nanau porai

lorengau: lay j

10 & 24 November 2005

CRIMINAL LAW – Rape - Criminal Code s.347(1) – Sentence - No aggravating circumstances - Victim schoolgirl virgin 15 years of age - Offender 23 years of age - Sentence 10 years IHL -Sentence includes leniency therefore no suspension, no probation.

Facts

The defendant was convicted on a plea of guilty of one count of rape contrary to s.347 of the Criminal Code.

On 10 March 2005 the accused was at his village, Ndrodrou, Nohang, South Coast Manus. He saw SJ, a female student in grade 6 of 15 years of age at a river next to the village. He approached the victim and had sexual intercourse with her without her consent.

Held

1.	This is not a case involving aggravating features apart from the age of the victim and no circumstances of aggravation were charged. The following cases were considered: State v Ezra Hiviki (29/04/04) N2548; State v Junior Apen Sibu (No 2) (25/3/2004) N2567; State v Thomas Madi (23/6/2004) N2625; The State v Komai Balal (No. 2) (25/2/2005) N2821; The State v Seyo Aroko (24/2/2005) N2822.

2.	Taking into account all of the circumstances of this case including the guilty plea, that the defendant is a first offender and that it was rape without aggravating circumstance, a sentence of ten years is appropriate, less time spent in pre trial custody: see Public Prosecutor v Thomas Vola, [1981] PNGLR 412.

Papua New Guinea cases cited

Lawrence Hindemba v State [1998] PGSC 48; SC593.
State v Ezra Hiviki [2004] PGNC 216; N2548.
State v Junior Apen Sibu (No 2) [2004] PGNC 201; N2567.
State v Thomas Madi [2004] PGNC 160; N2625.
State v Toby Tani [1994] PGNC 92; N2063.
The State v Komai Balal (No.2) [2005] PGNC 132; N2821.
The State v Seyo Aroko [2005] PGNC 130; N2822.

Counsel
P Kaluwin, for the State.
L Siminji, for the defendant.

24 November 2005

Lay j. The defendant was convicted on a plea of guilty of one count of rape, contrary to s 347 of the Criminal Code.

The facts put to the defendant on his arraignment were that on 10 March 2005 he was at his village, Ndrodrou, Nohang, South Coast Manus. He saw SJ, a female student in grade 6 of 15 years of age at a river next to the village. He approached the victim and had sexual intercourse with her without her consent.

On his allocutus the defendant said he is a first offender, it is true he has done wrong in the eyes of the law. He asked for mercy and requested that his sentence should not be so severe.

Defence Counsel submitted that the defendant is aged 18 years and single, his father is dead, mother alive. He is from a family of 3 children. He has 1 sister and 1 brother. He is the second eldest. He was educated to grade 6, has had no other education and has never been in formal employment. He was arrested on 14 April 2005 and has been in custody for 7 months. In mitigation counsel submitted that there is a guilty plea which is consistent with the record of interview, the victim has been spared from giving evidence, there was no excessive force, no large age gap, the defendant should be given a second chance. 

In Lawrence Hindemba v State (1998) SC593 (Woods, Injia and Sawong JJ) the Supreme Court said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society's demand for tougher sentences: see James Meaoa v The State SC504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

This is not a case involving aggravating features apart from the age of the victim and no circumstances of aggravation were charged. I have considered the following cases:

·	State v Ezra Hiviki (29/04/04) N2548 (Kandakasi J) victim 10 years of age, defendant 16 years of age, cousins, injury to vaginal wall requiring stitch, rape at night while victim asleep. Sentence of 13 years IHL imposed.

·	State v Junior Apen Sibu (No 2) (25/3/2004) N2567 (Kandakasi J) victim 10 years of age, offender young but age not specified, victim and offender related, breach of trust, sentence of 13 years IHL imposed.

·	State v Thomas Madi (23/6/2004) N2625 (Sevua J) victim 18 years of age, offender 30 years of age, from neighboring villages, offender gave lifts to victim in community bus. Sentence 12 years IHL.

·	The State v Komai Balal (No.2) (25/2/2005) N2821 (Manuhu J) victim 13 years of age raped by her father of 42 years of age then tied up and left to die in the bush. After a trial, 15 years IHL.

·	The State v Seyo Aroko (24/2/2005) N2822 (Manuhu J) 18 year old offender raped woman holding 9 month old baby. Threats and slight injury with knife. Baby separated from mother during attack. Plea of guilty, not pre meditated. 8 ½ years IHL.

From the depositions it appears that the defendant was washing at a river in the afternoon when the victim crossed the river on her way home from school. She smiled at the defendant and the defendant thought that might be an invitation, so he followed her. When the defendant caught up with the victim she made it quite clear that he was mistaken, yet he forced himself upon her. When the victim was medically examined the doctor reported "Hymen: Torn with small hemorrhages." I conclude that the victim was a virgin prior to the attack.

In relation to the submission that the defendant is 18 years of age, I observe that he has been variously referred to as 23 and 25 years of age in the Pre Sentence Report and the District Court Information. The defendant attended school from grade 1 to grade 6 between the years 1990 and 1996. Assuming a commencement age of 5 years in 1990 he would now be 21 years of age. As many children do not start school until 7 years of age, his stated age of 23 years in the pre sentence report is probably correct. He is certainly older than 18 years of age, although of slim build and looking somewhat stressed and vulnerable at the prospect of being sentenced. I find he is 23 years of age, so he is 5 years older than counsel assumed in submissions and the victim was 15 making an age difference of 8 years. 

Contrary to submissions the pre sentence report notes that the defendant spent 2 years at a vocational school after primary school and obtained a carpentry certificate. The defendant's family members are willing to assist him to pay compensation in cash and goods up to K2,500 as he has no means to do that.

It is the defendant who committed the crime and it is inappropriate that other members of the family should bear the penalty. It is also inappropriate that there be any sense that the defendant can be bought out of his trouble. Compensation can help the victim and its payment can be a mitigating factor but it does not replace the proper penalty required by law. There is no principle that the more that is paid the less the sentence.

The pre sentence report expresses the view that the defendant is a confident person with leadership ability who could lead other people to commit crime. The report suggests he can be a danger to anyone especially females at the age of 12 to 18 years old. A Voluntary Probation Officer is available in the defendant's village and the Probation Service assesses him as a suitable candidate for probation.

And as Injia AJ (as he then was) observed in State v Toby Tani (13/9/1994) N2063:

"In John Aubuku v The State [1987] PNGLR 267, the Supreme Court said rape is a serious offence which attracts an immediate custodial sentence except in very exceptional circumstances."

I do not find any exceptional circumstances in this case. It would not be giving proper effect to the wishes of Parliament in the amendments made to s347 and generally with respect to sexual offences not to impose an appropriate term of imprisonment. Nor would it be acceptable to the community which is looking to the courts to protect women and girls from predatory attacks by men.

Taking into account all of the circumstances of this case, including the guilty plea, that the defendant is a first offender and that it was rape without aggravating circumstances, I consider a sentence of ten years is appropriate and the defendant is sentenced to that term less time spent in pre trial custody. I consider that the sentence imposed makes allowance for all factors and includes a degree of leniency. It would not be appropriate to reduce the term of imprisonment further by partial suspension and probation: Public Prosecutor v Thomas Vola [1981] PNGLR 412 (Kapi, Pratt and Miles JJ).

Lawyers for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.