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State v Bawai [1981] PGNC 2; N304 (15 January 1981)

Unreported National Court Decisions

N304

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
KAMO BAWAI, SOGA GUSI, APUTI OMUI

Waigani

Kidu CJ
15 January 1981

SENTENCE

KIDU CJ: The State presented an indictment charging the prisoner Kamo Bawai with the wilful murder of Govea Gureki. I found him guilty of unlawful wounding. An indictment charging the prisoner with cting rape upon Govea Gureki was presented and he pleaded gued guilty to this offence.

Separate indictments were then presented against the prisoners Soga Gusi and Aputi Omui. Gusi was charged with committing rape upon Govea Gureki and unlawfully wounding her. He pleaded guilty to both charges. Omui was charged with committing rape upon Govea Gureki and pleaded guilty to the charge.

As the charges all arose out of the same incident I agreed to hear submissions on sentence together.

On the night of 30th May 1980 a birthday party was held at Morata. The three prisoners and the deceased Govea Gureki attended the party. Some time during the party a fight broke out. For some reason unknown to me the deceased Govea Gureki, a 28 year old woman from Kila Kila Village, was grabbed and forcibly taken away. She was raped by some twenty to thirty men and then killed. The cause of death was a knife wound in the neck which severed a carotid artery.

Kamo Bawai raped the woman and later grabbed a knife from some other man present and stabbed the deceased on the left leg.

Soga Gusi, who followed, when the deceased was being taken away, and was present when she was being raped kissed the deceased who bit his tongue. He later required medical attention for his tongue. When the deceased bit his tongue he took a knife and stabbed her on the leg.

Aputi Omui attended the birthday party. When the fight started he and a man Noel went with his wife to Noel’s house. They took a carton of beer with them. At Noel’s house he was eating when he heard a woman sing out or scream. He went outside and saw the deceased being carried away. He followed the group. At this time he saw that the deceased was naked. According to him the deceased was taken “to the swamp in the garden, then at the first spot, about 5 to 6 people then raped her, then after them I then raped the deceased ...”

While he was on top of the deceased someone pulled him off and “... at that time I ran away before the police arrived”. He admitted in his Record of Interview that when the deceased was carried to the spot where he too raped her, he helped carry her.

It seems from the evidence that the deceased was raped first in one location and then taken to another location where she was raped and then killed. Some of the men (or maybe all of them) who took the deceased and then raped her, were drunk. It seems that during the party a drunken brawl erupted the result of which was this unfortunate young woman being taken away by force, subjected to pack rape and then murdered. However, this is not a planned pack rape and murder. The evidence before me makes it a little difficult to come to such a conclusion.

It is apparent from evidence that those who were responsible for the forcible abduction and inflicting the fatal neck wound are yet to be brought to account for their actions. I also bear in mind that there were between 20 - 30 men who raped the deceased and only the three prisoners now stand before this court to be sentenced.

Sentencing, it has been said, is not an art or exact science. No court can hope to impose a sentence perfectly proportionate to the offence committed on the facts and circumstances of each particular case. However, the law has put on the shoulders of the courts the responsibility of penalising offenders and therefore I must, doing the best I can, impose sentences on these three prisoners which will satisfy society’s interest in seeing that offenders are punished and the prisoners’ interest in expecting justice being done.

The crime of rape carries a maximum penalty of imprisonment with hard labour for life. Unlawful wounding attracts a maximum penalty of imprisonment with hard labour for 3 years.

Omui and Bawai raped the deceased. It was not a deliberately planned rape on their part. They followed the main perpetrators, it seems, joined with the mob and committed rape. They should not have of course but it is said that being in intoxicated condition they joined with the rest and took part in raping the deceased. Being intoxicated at the time is no excuse. They were not so imbibed that they did not know what they were doing. It is submitted they acted out of character - young men of previous good character who were somehow induced by mob hysteria to take part in the commission of a most serious offence on a helpless young woman. It is too late to say after the incident “I am sorry I did what I did. I was drunk. I got carried away by mob hysteria. It was uncharacteristic of me”. I am asked not to treat this as the usual pack rape situation and impose the usual pack rape sentences. As far as I am concerned it was a rape by a pack. These two prisoners followed the pack and then decided to join the pack in raping the deceased. Why should this be different. Mob hysteria or psychology is no excuse. Women of this country must feel safe to go to parties if they want to or walk around any place in Papua New Guinea without fear of being molested or raped by packs of men drunk or sober.

Young as they are, having unblemished characters as they had before the 30th of May 1980, coming from good homes as they did or having been influenced by religious teachings before does not excuse their behaviour. But I take these factors into account in their favour. I also take into account the periods they have spent awaiting their trials.

I impose on Kamo Bawai and Aputi Omui for the offence of rape a sentence of 8 years imprisonment with hard labour.

Soga Gusi did not have sexual intercourse with the deceased against her will. He is convicted of rape by association and by attempting to kiss the deceased while she was being raped. Taking into account this factor and his previous good character and age, I distinguish him from the other two prisoners. I impose a sentence of 4 years imprisonment with hard labour for the offence of rape.

Kamo Bawai and Soga Gusi are also guilty of unlawfully wounding the deceased. Bawai stabbed the deceased on the left leg with a knife after he and some other person had raped her. He did this with no apparent reason. Perhaps it was because he was drunk or because he got carried away by circumstances. Whatever the reason or explanation, he inflicted on the helpless deceased who had been stabbed by another person, a wound on her leg. For this offence he is sentenced to 2 years imprisonment with hard labour. Soga Gusi stabbed the deceased on the leg with a knife when he was bitten by the deceased on the tongue whilst trying to kiss her. It might be said that he did this out of anger. It was his fault. He had no business trying to kiss her. For this offence he is sentenced to 2 years imprisonment with hard labour.

Counsel for Gusi and Bawai submit that I should not impose cumulative sentences. Tremellan v. The QueenN304.html#_edn542" title="">[dxlii]¹ is put forward he propositiosition that where offences arise out of the same or related facts, sentences should be made concurrent. This is of course a general proposition. Whether sentences should be cumulaor concurrent in cases wher where offences arise out of same facts or the actions depend on circumstances of particular cases. In Tremellan the falsifications of documents were done for the purpose of stealing money. In the present case the deceased was raped and then stabbed. She was not stabbed in order to be raped nor was she raped in order to be stabbed. That the two offences were related generally as to time and place is not questionable. However, they were committed one after the other - two different offences committed separately.

The one did not depend on the other as in Tremellan’s (supra) case. In Wari Mugining v. The QueenN304.html#_edn543" title="">[dxliii]² the Su Court of Justice (Rae (Raine, Williams and Saldanha JJ) had this very question (cumulative sentences) to consider. Wari Muginin been charged with:

(1) & With inth intent to do grievous bods bodily harm, unlawfully inflicted grievous bodily harm.

(2) &#With intent to do grievouievous bodily harm, unlawful wounding.

(3) &&#1#1ttemptiempting tong tong to comm commit rape.

(4) ـ Assaultsault with intent to rape.

He was found guilty and convicted o and (4). The learned trial Judge made the sentences for thor these cumulative and the Supreme Court had the following comments:

(a0;҈ 160; RaineRaine J. (as he then was,) at p. 359:

“Although I have already expressed the view that the stabbing was one of ‘a series of acts done ... in the prosecution of a single purpose’, nevertheless I feel that the facts separating the convictions under the first and fourth counts are distinct. I can conceive cases where the view I took would be different.

I appreciate what the majority of the Full Court said in Tremellan’s case about the judgment of Hart J. in R. v. Phillips and Lawrence. It seems to me that Hart J. was speaking in very general terms. At p. 267 Hanger J. said, “I think, too, that the sentences for indecent assault, although they were clearly separate and distinct offences, should, in the circumstances, be served concurrently with the other sentence; to make any of the sentences cumulative would, in my opinion, bring them within the authority of this court as being manifestly excessive’. Thus, it seems to me, that Hanger J. was not seeking to lay down any principle of law, but merely discussing the question of cumulative sentences in the light of the facts of the particular case, and his Honour felt that the totality of the cumulative sentences resulted in an overall period of imprisonment that was excessive. Mack C.J., on the other hand, was not opposed to the cumulative sentences awarded by the trial judge, either as a matter of law, or as being too severe, and Hart J. agreed with the Chief Justice.

In my opinion His Honour did not err in imposing these cumulative sentences”.

Williams J. at pp. 360-361 said:

“Reliance was placed on the majority decision of the Full Court in Tremellan v. The Queen. I do not understand the majority decision in that court to lay down any inflexible rule ... It seems to me that whether or not sentences should be made cumulative must depend upon the circumstances of each particular case, and that there is no hard and fast inflexible rule in relation to the matter. In the circumstances of this case I do not see that the learned trial judge erred in principle in ordering the sentences to be cumulative”.

Saldanha J. said at p. 364:

“It is contended on behalf of the appellant that the sentences should not have been consecutive, on the ground that the two offences were part of the one incident, transaction or episode; alternatively, that they are excessive. Thomas on Principles of Sentencing states at p. 50:

‘The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident, if they are essentially different in character and involve different subject matter’.

In my opinion the two offences although closely related were separate and distinct and arose out of two different acts. The imposition of consecutive sentences was proper, the sentences imposed by his Honour the trial judge were richly deserved and the appeal against sentence is also dismissed.”

I consider what happened so serious that the offences of rape and unlawful wounding attract cumulative sentences.

In this case, then, I make the following orders:

(1) ;&#16>Kamo BawaiBawai

8 years imprisonment with hard labour for rape cumulative on 2 years imprisonment with hard labour for unlawful wounding.

(2);ټ Aputi Omui

8 yp>8 years ears imprisonment with hard labour for rape.

(3) &#160Soga>Gusi

(

(1) ـ 4 yearsrfor rape cupe cumulative on

(2) &#1 yelawunnd/pu

Solicitlicitor for the State: L. Gavara-Nanu, A/Public Pros Prosecutoecutor

C

Counsel: J. Byrne

Solicitor for the Accused: At, PuSolic/p> e

C

Counseounsel for 2nd Accused: P. O’Brien

Counsel for 3rd Accused: N. Kirriwom