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State v Waim [1995] PGNC 161; [1995] PNGLR 187; N1356 (10 August 1995)

N1356

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS WAIM

Lae
Sevua J

3 August 1995
10 August 1995

CRIMINAL LAW - Sentencing - Rape - Pack rape - Sentencing tariff in rape case - Starting point eight years - Aggravating factors - victim subjected to sexual perversions and indignities - Pack rape involving about 30 persons in three groups - Mitigating circumstances - Punitive custodial sentence.

Facts

The accused was the leader of a group of young men who raped and subjected the prosecutrix to indignities after he the accused, abducted the victim.

Held

The offence of rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances.

Cases Cited

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.
Mase & Anor. v The State [1991] PNGLR 88.
The State v Michael Amuna Koupa [1987] PNGLR 208.
The State v Peter Kaudik [1987] PNGLR 201.
Umba v The State, unreported, SC 92.

Counsel

M. Peter, for State.
B. Tabai,for defendant.

10 August 1995

SEVUA J: The prisoner has pleaded guilty to four counts of rape.

The facts which the prisoner pleaded to upon arraignment and which the Court accepted were these. At about 6:30 p.m., on 18 March, 1995 the victim, AP, with her boyfriend walked from East Taraka towards the University of Technology. As they were approaching the main gate, the prisoner came to them and asked the victim why she was accompanying her boyfriend to the University campus. She explained. The prisoner however, pulled her away from her boyfriend and at the same time, five other youths came and threatened the victim’s boyfriend and chased him to the University. They later followed the prisoner who had dragged the victim towards East Taraka. The prisoner and the victim arrived at a location where a container was and he dragged her into the container, where he threatened her, forced her down then had sexual intercourse with her whilst a friend of his waited outside. After the prisoner had had sexual intercourse with the victim, he signalled to his friend who came in and also had sexual intercourse with the victim.

Following this, the prisoner arranged a vehicle where the victim was picked up and together with six others, they drove from East Taraka to the beach adjacent to the Sir Ignatius Kilage Stadium. At the beach, the prisoner had sexual intercourse with the victim followed by the others. The victim was forced to suck the penis of all these men. After this, they left the beach and drove towards East Taraka. On the way, the driver made her suck his penis, then, at the speedway, one of the prisoner’s friends got into the cabin where the victim was and made her sit on his penis.

The vehicle proceeded to East Taraka via the Waterboard Station. There, the prisoner took the victim out from the vehicle and had sexual intercourse with her again the third time. All the prisoner’s friends also had their turns. They left this area and went further into the bush where the prisoner had sexual intercourse with the victim again the fourth time followed by his friends. The victim was again subjected to sexual indignities. Whilst at that location a group of about seven people arrived and each in turn had sexual intercourse with the victim. She was taken to another location where another group of about seven or eight people took turns in having sexual intercourse with her.

Finally, the victim was taken to Bumbu River where another five or six people took turn in having sexual intercourse with her, not through her vagina only, but through her anus as well. It was there that the last person to have sexual intercourse with her punched her and left her at the river. She became very weak, however, she managed to find her way to her house.

The State alleged that this was a bad case of rape where the victim was repeatedly raped and subjected to sexual perversions and indignities, and the prisoner was the person who initially removed the victim from her boyfriend and the leader who led the others into committing these acts of sexual intercourse and sexual perversions against the victim.

I have set out these facts in some detail because I consider that they are relevant on sentence. There are also evidence I will allude to, which I consider relevant to sentence as well.

The prisoner said he is 16 years old. His counsel also submitted this. However, I noted in his antecedent report that his date of birth is 5/7/77. I think the prisoner is older than 16 years because to me he appears older than he said he was. Whilst I treat him as a first young offender, I do not think I can treat him as a juvenile for the reason I have alluded to above. It seems quite incredible for a 16 year old to do what this prisoner did to the victim. He has pleaded guilty to all four counts but then it was probably better he did and obviously to his advantage because there is evidence from both himself and the victim that they were known personally to each other. Therefore in my view, there was no way the prisoner could have denied his involvement. In his allocutus, the prisoner asked for probation or good behaviour bond. His counsel submitted the following factors in mitigation: his guilty plea, co-operation with police (admissions in ROI), age (young offender), expression of remorse and first offence. His counsel referred to John Aubuku v The State [1987] PNGLR 267 and conceded that this was a very bad case of rape involving a number of persons and the victim was subjected to sexual indignities and perversions. He alluded to the matters therein which would substantially increase the sentence from the suggested starting point.

In considering the appropriate sentence for this prisoner, I have considered everything that both the prisoner and his counsel have submitted in mitigation. I have already alluded to the fact that this prisoner is a first young offender, however, he is not a juvenile. I treat him as an 18 year old first offender. When I consider all these matters and weigh them against the aggravated features of this case, I find that the mitigating factors submitted fade into insignificance and in my view, this case is far worse than Peter Kaudik’s case and therefore, it follows, in my view that the sentence should be higher than that imposed on that prisoner.

I highlight some of the aggravated factors and sexual perversions and indignities here because, as I adverted to earlier, they are relevant on sentence.

Firstly, the victim was pulled and dragged away from her boyfriend by the prisoner at East Taraka. She was threatened by the prisoner inside the container prior to the first act of sexual intercourse. At the beach, she was dragged from the vehicle. The prisoner raped her first followed by the others. Whilst the prisoner raped her, another forced his penis into the victim’s mouth while two others forced her to hold their penis. Each of the seven people forced her to suck his penis and each raped her twice. As they left the beach towards East Taraka, the driver forced her to suck his penis in the vehicle until they reached the speedway. At East Taraka, the victim was repeatedly raped by the prisoner and many others. She was forced to suck their penis. At the river, she was raped and three of the offenders raped her through her anus. She was eventually punched on the face and mouth then left at the river.

There can be no doubt in anyone’s mind that the victim was not only assaulted but subjected to all sorts of sexual perversions and indignities. In my view, these are matters which call for a substantial prison term than the recommended starting point because they are circumstances of aggravation. This is the worst type of rape case I have come across and I feel loss for words to adequately describe the litany of terror and violence committed upon this helpless victim. I do not think adjectives such as "horrific" and "disgusting" best describe the manner in which all offenders committed rape and sexual perversions against this woman. The sexual attacks were most degrading and evil and carried out in a sustained manner by all the offenders.

From the facts put forth by the prosecution for purpose of arraignment, it seems obvious that there were four different gangs altogether numbering between, twenty eight to thirty, who repeatedly raped this woman that night. To me, the circumstances of this litany of terror and violence could not have been carried out by human beings. However, the actions of the prisoner and his cohorts cannot be equated with the behaviour of animals either because in my view, animals have higher intelligence than perhaps some of these offenders who acted in this way that night. In fact I have not heard of, nor read about, any animal species that would treat its own type in the manner the prisoner and the others treated this victim. Such evil and inherently degrading fashion is just out of the ordinary. The immensity of this crime can be seen by reflecting on the whole course of action carried out by this prisoner and others and by the various acts of repeated rape and sexual perversions. I said earlier and I will reiterate here that it is quite difficult to describe this whole episode. The revulsion that the circumstances of this case reveal cannot be described, as no words can adequately describe same. One can only express the greatest sympathy for the victim for the pain, fear, humiliation and degradation that these events had brought upon her. In my opinion, this is one case which calls for a substantial and stern punishment.

The prisoner as I said, is said to be 16 years, however, I have already alluded to my view that he is 18 years. He said he was drunk and committed these offences. He has pleaded for leniency and asked for a good behaviour bond or a release on probation. However, the prisoner played a leading role in this whole episode. I have adverted to his leading role. It was not a case where the prisoner joined in with other offenders. He pulled the victim away from her boyfriend and raped her first on all four occasions before his friends did. It was not as if he was led astray by some older youths. It would therefore be an impossible task for me, in my view, to categorise this prisoner as a 16 year old first offender who was led into committing this heinous and abominable crime, rather he led the others and he was the leader. If I accept that he is 16 years old, I am astounded that a 16 year old could do what he did that night.

In my view, there are no exceptional circumstances warranting a sentence other than an immediate punitive custodial sentence. The facts of this case speak for themselves. There can be no alternative than to give effect to what the Court held in The State v Peter Kaudik [1987] PNGLR 201. This crime requires deterrence. Therefore, "the sentence. should reflect the society’s utter revulsion at this kind of violation of females", per Amet, J (as he then was) at 207.

I believe that young criminals of this country cannot continue to hide beneath the cloak of youthfulness in order to get away with very serious violent crimes. I do not for one moment, say that youth is no longer a mitigating factor, because, it still is. However, in a very serious violent crime such as this one, the plea of youthfulness would lose its significance. My view is best illustrated by reference to two cases I wish to cite and apply here. Firstly, in Bokun Umba v The State, unreported, SC 92 2nd April, 1986, His Honour Prentice, DCJ (as he was then) said, "I am coming to the conclusion that the sentences handed down by the National Court, even on youthful criminals, must increase significantly further, if they are to avoid being regarded by the public and perhaps by the offenders, as derisory ..., and if they are to deter from crime". And secondly, His Honour, Wilson, J in The State v Michael Amuna Koupa [1976] PNGLR 208 at 213 said, "The prisoner is 19 years of age and has no previous offences. I have said before that while the age of a prisoner is a matter that will always attract the Court’s attention, there comes a time particularly where one is looking at offences of a serious violent nature where the age of the offender has decreasing impact on the sentencer’s attitude to the appropriate penalty. This is such a case."

I bear in mind the principle that a sentence on a first young offender should not be a crushing penalty, however, I consider that under the circumstances, given the enormity of the crime and the manner in which it was perpetrated, the punishment in this case warrants it. I must say I have seriously considered the appropriateness of a life sentence, however, three matters dissuaded me from imposing a life term. These are the prisoner’s age, his plea of guilty and finally, the medical evidence did not suggest any permanent or serious bodily injury, despite the fact that the victim was repeatedly raped by a lot of persons. I have previously adverted to the prisoner’s age and his plea. I consider that those mitigating factors have a decreasing impact to the extent that the usual suggested sentence as starting point for a pack rape is quite inappropriate. The penalty in this case, must reflect the same and the serious nature of the crime perpetrated against the victim.

I have adverted to the prisoner’s leading role in this case. In my view, the sentence I have decided should reflect that and also the punishment should reflect the aspect of personal deterrence and punishment of the prisoner for his involvement in the commission of these offences. The punishment should further act as a general deterrence to warn would-be perpetrators that the Courts will deal with them decisively and in the most sternest manner.

Defence counsel had conceded that this was a very bad case and submitted that a term of fifteen years may be appropriate, however, he has not addressed the Court on the totality principle which I consider relevant in this case. I think the total aggregate is the underlying factor in this principle and I have considered it here. But I have not lose sight of the fact that the victim was repeatedly raped by a lot of people, subjected to sexual perversions and finally punched on the mouth and face. The enormity of this crime is adequately discussed in this judgment.

Although these offences were committed the same night, they were committed at different locations and at different times. In my view, sentences for the four counts should therefore be cumulative. However, upon considering the totality principle and the sentence I have decided to impose, I consider that the sentences should be concurrent.

I am of the view that the third count warrants the heaviest penalty because the victim was subjected to far worse sexual perversions apart from the fact that she was raped by the prisoner and his friends in turn. She said in her statement, "after having sex with me (referring to prisoner) the rest of the six had their turn also through my anus, vagina and mouth." The second count should also attract a heavy sentence because the victim was forced to suck each offender’s penis. The words, ‘degrading,’ ‘disgusting’ and ‘sickening’ cannot describe these evil acts, in my view.

In the Philippines, I think the Manila Hanging Judge would not hesitate to sentence the prisoner to be hanged. In some states in USA, the prisoner would be given between fifty and hundred years. In Bangladesh recently, the National Parliament adopted a new law, The Women and Child Repression (Special Provision) Bill, 1995, which provides that rapists and anyone guilty of violence against women or children be hanged. This is how serious those countries consider rape.

The plea of intoxication raised in allocutus does not attract any sympathy at all from me and is not a mitigating factor. I would adopt what the former Chief Justice said in Mase & Anor. v The State [1991] PNGLR 88 at 91.

In all the circumstances, I would impose the following punishment. In respect of the first count, I sentence the prisoner to 8 years imprisonment with hard labour. In respect of the second count, I sentence the prisoner to 15 years imprisonment with hard labour. In respect of the third count, I sentence the prisoner to 25 years imprisonment with hard labour. In respect of the fourth count, I sentence the prisoner to 8 years imprisonment in hard labour.

I order that sentences for the first, second and fourth counts be served concurrently with the sentence for the third count, less the remand period of 4 months 1 week.

I recommend that the prisoner not be released on parole.

_______________________________

Lawyer for State: Public Prosecutor.
Counsel: M. Peter.
Lawyer for accused: Public Solicitor.
Counsel: B. Tabai.