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State v Bou [1996] PGNC 20; N1530 (8 August 1996)

Unreported National Court Decisions

N1530

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1752 OF 1996
THE STATE
v
TOGEY BOU

Waigani

Batari AJ
8 August 1996

CRIMINAL LAW - Sentence - Rape - Guidelines - Aggravating factors - Mitigating factors -

CRIMINAL LAW - Sentence - Rape - Police Officer raping 13 year old complainant in Sexual Offences Squad Office - Sentence of 8 years.

Cases Cited:

John Aubuku v The State [1987] PNGLR 267

James Meaoa v The State SC 405 (unreported)

The State v Peter Kaudik [1987] PNGLR 201

The State v John Wai (unreported)

Sentence

Following the conviction of the accused on one count of rape, the following reasons were delivered on sentence.

Counsel:

L Maru for the State

M Apie’e for the Accused

8 August 1996

BATARI AJ: I have to sentence the prisoner following my verdict on his guilt and conviction on the rape charge. The basic facts for purpose of sentencing are that, the victim had initially laid a complaint of rape against another person, towards the end of 1994. In February, 1995 a further complaint was made to the police concerning an alleged interference with the prosecutrix by the alleged rapist. The prisoner, a CID member attached to the Sexual Offences Squad based in Boroko Police Station was the investigator of both complaints. On March 3 1995 the prisoner brought the prosecutrix to the Police Station purportedly to obtain her statement. They were accompanied by a lady friend of the prosecutrix. At Boroko Police Station, he told the other lady to wait outside while he went alone into the Sexual Offences Squad General Office with the prosecutrix and locked the door. There was no-one else present in the office. He made sexual advances to her and when she resisted, he slapped her and forced her onto the floor where he raped her. The act of sexual intercourse was also precipitated by threats of bodily harm against the prosecutrix. The medical evidence obtained shortly after the incident confirmed presence of spermatozoa and cracks to the lower part of her vagina due to forceful penetration. She did not suffer any other physical injury.

Under s. 347 of the Criminal Code Act, a person convicted of rape may be sentenced to life imprisonment. This means Parliament considers the crime of rape as one of the most serious and has set a maximum sentence which next to the death penalty, is the highest. A discretionary power under s.19 of the Criminal Code however means under proper considerations of sentencing principles, a lesser penalty may be imposed.

The prisoner has pleaded leniency in his allocutus and through his lawyer. I have also considered and taken into account his personal and family background. He is 36 years old and has served in the Force for 15 years. His officer in-charge spoke highly of his work performance and said he is a likeable worker and loving father to his young children and wife. I accept that his 15 years in the Police Force bespeaks of good character and steady employment record. I also consider that following his conviction, he has more or less lost his professional career. The effect of this on him and his family would sadly be devastating. But that’s a matter that he should have considered when he set out on his criminal path. I take into account also that the girl did not suffer any other physical injury besides those noted by the doctor.

The prosecutrix on the other hand was 13 years at the time of the incident. I accept her age as being consistent with my observation of her in the witness box. She was small and slightly built. At her tender age, she was forced to recount in public, what the prisoner did to her after he denied the allegations. She was clearly traumatised by re-living in detail, what she went through. At the end of all the evidence when I found her story convincing, that does not help the prisoner when I come to sentencing.

The girl became most vulnerable when interviewed alone. She was a young girl and the prisoner was a 36 year old CID Officer. She had every right to trust him as a policeman particularly as he was investigating an initial rape complaint she had made against another person. The prisoner was a person in authority, a policeman and a person in a position of trust. He breached that fiduciary relationship. On my findings the prisoner was the only member of the Sexual Offences Squad on duty on the day in question. He had the whole office to himself at least for the most part of the morning. He decided to take advantage of the situation and the vulnerability of the girl. He pretended to obtain a statement from her in the CID office as part of his investigation of her complaint. She obliged, I think, because she believed and trusted the success of her complaint depended on her co-operation, with the prisoner. Unknown to her, he was merely using his position to satisfy his own sexual lust.

Public trust and confidence in the Police Force, which is the law enforcement agency is lessen when people can no longer feel safe and protected if actions like yours go unpunished with severity. What you did also impacts adversely on the good image of the Police Force and degrades the discipline most members of the Police Force had worked hard to maintain.

The preservation and protection of a female’s universal rights and human dignity have been stressed time and again by this court. For my part, I adopt the Supreme Court position in re-affirming that any female, young or old who happens to be alone or together, be they on the road, on the street, in their homes, in the gardens or as here, in the police station are entitled to protection of the law. Men should not feel or believe they are able to take advantage of any girl wherever they find them. The Constitution speaks clearly of respect for the inherent dignity of all people and this extends to the female population regardless of age or background. This freedom of all persons, female as well as male, from unlawful assault must be clearly re-stated by the Courts. See, James Mora Meaoa v The State, unreported Supreme Court Judgment No. SC 504.

Rape is a serious crime which calls for immediate punitive custodial sentence. In this case, rape is committed by an adult. In John Aubuku v The State [1987] PNGLR 267, the starting point is 5 years imprisonment in a contested case without aggravating or mitigating factors. Where a person who committed rape is in a position of responsibility towards the victim, the starting point should be 8 years. In Aubuku’s case, a policeman appealed against his sentence of 10 years for rape. The victim was a married woman taken into custody at Banz Police Station on a stabbing charge. The Appellant took the woman out of the cells and into the office purportedly for questioning and there raped her. He threatened her with a knife. The Appellant denied the offence and was convicted after a trial.

The Supreme Court confirmed the sentence of 10 years as the case involved “a breach of trust” as an aggravating factor in sexual offences. In the most recent case of James Mora Meaoa v. The State, handed down last month, the Supreme Court confirmed a sentence of 14 years where a young girl of 13 years was raped by persons who were in a position of responsibility towards her. The Supreme Court also noted that the age and vulnerability of the victim, and the fact that the girl was made to re-live the experience she went through are matters to be taken into account against the prisoner.

There has also been calls for stiffer sentences in rape cases by the National Court in recent years. In The State v John Wai (Unreported) His Honour, Sevua J. suggested that the guidelines in Aubuku’s case should be reviewed. His Honour also referred to the case of The State v Peter Kaudik [1987] PNGLR 201 and remonstrated the fact that seven years after the Court in Aubuku and Kaudik imposed higher sentences, the crime is still very prevalent in Papua New Guinea.

It is now apparent that sentences in rape must increase. There have been sufficient warnings that the crime of rape will be dealt with more sternly by heavier sentences. However, the basic principles of sentence which I remind myself is that each case must be decided on its own merit.

This case involved a breach of trust as an aggravating factor. The young age of the girl and the extra distress she was caused in giving evidence are also factors that weigh heavily against the accused. (See Aubuku v The State (supra).

In all the circumstances of this case, the personal circumstances and background of the prisoner and circumstances of his crime, I impose a sentence of 9 years imprisonment in hard labour.

I order that the prisoner be detained to serve his sentence at a CIS other than Bomana in the National Capital District or Buimo in the Morobe Province.

(This sentence was re-called and the prisoner re-sentenced to 8 years imprisonment IHL in a separate judgment).

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor