N1146

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

C.R. 1365 OF 1992

THE STATE

V

RAPHAEL KUENGU

RABAUL: DOHERTY, J.
8 & 12 March 1993

Sentence for sodomy without consent - factors considered aggravating in rape may be considered aggravating in this offence - Sentence guidelines not fully applicable in view of the difference in maximum sentences.

The defendant pleaded guilty to an act of sodomy with a young fellow detainee without his consent.

HELD: 

1. 	The circumstances of the offence would have amounted to rape if the victim had been a female and the aggravating factors set out in John Aubuku -v- The State [1987] PNGLR 267 were applicable.

2. 	The sentence guidelines in The State -v- John Aubuku could not be adopted in total as the maximum penalties for the 2 offences were different.

CASES CITED:-

The following cases are cited in the judgement:
John Aubuku -v- The State [1987] PNGLR 267
Secretary for Law -v- Kabua Dewaka [1975] PNGLR 100

N Sios for the State
T Tamusio for the Defendant

DECISION ON SENTENCE

DOHERTY, J.: The defendant has pleaded guilty to one count of unlawful carnal knowledge against the order of nature contrary to Section 210 of the Criminal Code Ch. 62.

On his plea he said that the charge was true but denied one detail of the facts which was that he blindfolded the victim prior to the act of sodomy. The State did not pursue that particular detail and hence it was deleted from the facts.

The witness statements show that the defendant is serving sentence for two criminal offences at Kerevat Corrective Institution, he is approximately 29 years of age and has a strong and healthy appearance.

He instructed another detainee to ask a young 16 year old remandee, G, to see him in his cell.

When G arrived, the prisoner closed the door and started to upbraid G concerning the proceeds of theft, alleging that a big amount of money was stolen and only a small amount given to the prisoner's brother. He then made it clear that he wished to have sex with G and when G tried to go and open the door and go out, he was prevented, hit and pushed back. He was threatened, he alleges with a knife. He attempted to escape a second time, the knife was thrown and thereafter coitus anally took place.

The medical report on G shows that he was in severe pain and had difficulty walking normally. He was 16, felt sick and was in pain. He had malaria at the time of the incident. The medical report showed bleeding, the surface of the body was tender on examination with multiple scratches. The medical report confirmed that the anal intercourse had taken place.

If G had been a female person and not a male, this would have been considered as a crime of rape. It was an act of forced sexual connection without the consent of the victim. In the eyes of the community this is the common concept of rape and we now hear the expression "male rape" being used. The Constitution (S 55) stresses equality regardless of creed, tribe or sex. I consider that the factors set out in John Aubuku -v- The State [1987] PNGLR 267, when considering sentence for rape of a female can be justifiably applied to forced sexual connection without consent of a male. I note that the victim G said he told the prisoner "you really spoil me now". The expression "spoil" is one we see used in witness statements in relation to unlawful carnal knowledge or rape of a female and has been used in Court precedent. This indicates to me a similarity in attitude between the victim in this case and the victim in a female rape.

The aggravating factors mentioned in Aubuku which I consider applicable to the case before me are the age of the victim (a young male remandee aged approximately 16 years), the presence of the knife, the use of force resulting in the multiple scratches shown in the medical report, the planning (through this is very limited) and the emotional effect on the victim.

Community attitudes to sodomy differ. The Supreme Court has said (in The Secretary of Law -v- Kabua Dewaka [1975] PNGLR 100) that this is treatment that is regarded with gravity throughout the country. 

There are very few communities where it is considered a totally acceptable practice but in some it is more tolerated than others and there has been in changes of attitudes over the last few decades. I am not aware of a full study of attitudes towards the sodomy in the many diverse communities of Papua New Guinea but have noted in court cases over the years that it invokes a greater degree of abhorrence in some communities than it does in others.

I am not aware of any community that considers forced sexual connection of this kind to be acceptable behaviour.

A legal restriction on accepting fully the guidelines in John Aubuku and The State is the comparative maximums punishments in the two crimes. Rape, S 347 Criminal Code, carries a sentence of life imprisonment whereas unlawful carnal knowledge against the order of nature, (S 210 of the Criminal Code), carries a maximum 14 years in hard labour and for this reason I do not consider I am able to adopt in total the guidelines on sentence set down in John Aubuku's case. (supra)

I have also reviewed the sentences for this type of offence that have been given in National Court in the last few years.

One of the few reported judgments relating to this offence is The Secretary for Law -v- Kabua Dewaka. (supra). That case involved indecent minimal penetration of a 3 1/2 year old child. The facts do not suggest force or use of a weapon although the Supreme Court did stress (at Page 103) of the need to consider the age of the child who was interfered with and the need of the law to protect children and "the strong concern, which should be reflected in the sentence, of the people of Papua New Guinea, not only for the general care of children, but that young children should not be exposed to sexual treatment such as this which is regarded throughout the country as a matter of gravity". Hence that case is not on all fours with the facts before me. I have also considered sentences past in the last few years. These have ranged from forced sodomy in gaol on a plea - 2 years, to forced sodomy in gaol on a trial 4 year. I recall in one of the cases involving forced sodomy in gaol, the defendant said on his plea "other people are doing it, why should I be charged". It is fairly well accepted, despite lack of documentation and research that sodomy does occur in gaols, not only in Papua New Guinea, but in other places. I have no research to indicate the degree or the statistics.

The fact that it happens among others does not make it acceptable and does not make it any less of a criminal offence. Prevalence does not make any criminal activity acceptable or tolerable in law.

The defendant has pleaded guilty and this is very much in his favour and is normally considered of particular importance in a sexual offence. He is already serving a long sentence (14 years) for rape and robbery. He has five other offences for stealing, assault and breaking and entering, going back to 1977. He said himself he had "been in gaol since (his) youth until today and I have learnt to live the hard way as inmates live". He also said he is now an adult and has sexual feelings and hence that is why he did what he did. I can accept that attitude but the facts do show an element of force in what he did and it could not be described as a loving consensual relationship. He has asked for a good behaviour bond and has referred to 3 months in confinement which he has already served. He has apologised for the thing he has done and shown some remorse although he did not convey great conviction to me.

Given the facts, particularly the force used and the age of the victim, I consider a sentence of four (4) years in hard labour would be appropriate. I must however consider three other matters:-

1. 	This may represent a sudden increase in sentences imposed for this type of offence, 

2. 	The totality of the sentences being served by this defendant if I impose a further four (4) years, and

3. 	The fact that he has received some other punishment viz separate confinement for three (3) months.

I also bear in mind that there appears to be an increase in this type of offence and the need for deterrence, people are put in gaol to be reformed and punished not to be subjected to rape and assault.

The Supreme Court has made it clear that when considering prevalence of offences, the need for deterrence and other factors a court must not suddenly increase the sentence normally imposed for that type of offence and for all of these various reasons, both the facts before me and the general principles of sentencing, I have decided not to impose of four (4) years which I consider would be appropriate but to instead impose a sentence of three (3) years to be served cumulatively.

I have given some thought to the good behaviour bond requested in allocutus but for the protection of other prisoners and because of the force used I cannot agree to that.

Lawyer for the State: Public Prosecutor
Lawyer for the Defendant: Public Solicitor