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State v Nerius [1982] PGNC 29; N397 (9 November 1982)

N397

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WASALE NERIUS & RAMILANG TINGAS OF IVARE

Rabaul
Kidu CJ

9 November 1982

SENTENCE

KIDU CJ: Wasale Nerius and Ramilang Tingas, both from Ivare village in the Baining are of East New Britain Province, pleaded guilty to the crime of rape yesterday.

The crime was committed on the morning of 13th August 1982. Miriam David, the complainant, was on her way to school (Malabunga High School) from her village (Kainagunan) when she was grabbed from behind and dragged into the bush. She shouted "Hey wanpela man i holim pasim mi". No-one came to her assistance. The prisoner Ramilang Tingao held her from behind and dragged her into the bush. I quote from Tingas’ record of interview:

"Q.15. Would you recall Friday 13/8/82 and what were you doing at that time?

A. My brother and myself were sitting at the house when we saw Miriam walking to school. We both planned to grab hold on her and have sexual intercourse with her. We both followed a bush track and waited for her at the side of the road and she walked past us. I ran out and grabbed her by her hair and pulled her into the bush and had sexual intercourse with her first and then Wasale came and had sexual intercourse after me.

Q.16. Whom did you make the plan with?

A. Wasale and myself.

Q.38. What was your intention when making this trouble with that girl?

A. When we saw her we intended to pay-back for our sister which the victim’s sister (brother?) had sex with her so we both planned to rape her."

In Waisal Nerius’ record of interview he confirms that he and Tingas had planned to rape the complainant.

The complainant was raped as a payback for the alleged rape of a "sister" of the prisoners by the brother of the complainant. Nerius Raptamna, father of the prisoner Wasale Nerius, said in his evidence in the District Court that what the prisoners did was custom - i.e. if A rapes B’s sister B is entitled to rape A’s sister:

"Customs of our ‘tubuna’ ancestors, if anyone who commit sexual intercourse with my sister, and the accused also had a sister, I can back up and do the same, so it is fair and small compensation be awarded in between the two parties of the group or tribe or clan. So at the end, there (is) no fighting or dispute arising.

Q. What was the feeling of you on these two defendants when they did rape the girl?

A. This is a payback, because John Tomarmar, did some wrong to the sister of the two defendants in the first time, so they too want to make trouble to his sister."

The prisoners were dealt with by the Village Court in their area. They were fined K100 and ordered to pay K1,000 to the complainant’s father. They paid the K100 fine, paid K1,000 to the complaint’s father. The complainant’s father asked for K12,000 compensation in the Village Court.

A Village Court has no power to deal with rape cases. The crime of rape is one of the most serious in the Criminal Code. It carries a maximum penalty of imprisonment for life. The K100 fine should be returned to the prisoners.

The compensation of K1,000 is another matter.. If it is the custom of the Baining people to pay compensation to the father of the girl/woman in a rape case, then perhaps the order for payment of compensation of K1,000 was in order. I note, however, that the complainant’s father asked for K12,000.

Mr. Makus for the prisoners submitted that the complainant was raped as dictated by custom. That, is that as the complainant’s brother raped a sister of the prisoners, the prisoners were obliged by custom to rape the complainant. If this is a custom of the Baining people then it is repugnant to the dictates of Papua New Guinea’s Constitution. Women/girls are not to be raped because it is the custom. They are not ‘things’ or ‘chattels’ to be dealt with by men as they wish. Any custom which says that if A’s sister rapes B’s sister B is entitled to rape A’s sister cannot be condoned by the Courts. Such a custom, in my opinion, cannot be approved of in Papua New Guinea. In this case I condemn such a custom. Women are equal to men in Papua New Guinea under our Constitution. They must be so treated by men.

It is fortunate for the prisoners that the complainant has suffered no lasting injuries to her health or emotions. Nevertheless, they raped a helpless 14 year old school-girl on her way to school. They planned the rape and executed it.

I have said in rape cases that women and girls of this country must be allowed to walk about freely without fear and I say it again.

Wasale Nerius is 16 years old. He has gone to school and reached Grade 3. Ramilang is 20 and has never been to school. However, both speak Pidgin. They are not so isolated from Rabaul as to be considered primitive. In fact their village is close to Gaulim Teacher’s College.

Rape carries a maximum penalty of life imprisonment. The facts of their case do not justify the maximum penalty.

Taking into account all that their lawyer has submitted in their favour I consider the following sentences appropriate:

(1) Wasale - 5 years I.H.L.

(2) Ramilang - 5 years I.H.L.

Lawyer for the State: Public Prosecutor

Counsel: Mr. E. Kariko & Mr. Peter

Lawyer for the Accused: Warner Shand, Wilson & Associate

Counsel: Mr. M. Makus

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