N2026

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 227 of 2000

THE STATE

v.

TOGON DAVID

LAE: GAVARA-NANU, J
2000 : November 10

Criminal Law – Sentence - Pack rape – Weight to be given to plea of guilty where accused is caught in the act – Aggravating and mitigating factors

Cases Cited:
John Aubuku v The State [1987] PNGLR 267

Counsel:
N. Miviri for the State.
J. Kaumi for the Accused.

SENTENCE

GAVARA-NANU, J:	This was a pack rape of the victim aged 17 years by this prisoner and another man on 16th October 1999, in Lae. There would have been a third man had the police not arrived quickly on the scene. The prisoner and his co-offender were drunk when they raped the victim. Evidence show that the victim was forced by the other offender who was with the prisoner at gunpoint into the nearby bushes, where she was raped by them. The victim was threatened during the rape with a knife by the prisoner when she tried to call for help. According to the victim, the prisoner told her that he would kill her, she therefore stopped calling for help. She was crying during the whole ordeal. This prisoner even chased a man named Robert who tried to rescue the victim from them while she was forced away at gunpoint. A knife was found at the scene of the crime. The prisoner admitted using the weapons during rape. Evidence show that when the police and the mother arrived at the scene, the victim was in a shock and distress state, her clothes were torn, she had dirt all over her and was shaking and crying. The victim was checked by a doctor and confirmed the rape. The doctor’s report, said that she was grazed, bleeding and had bruises. She was bleeding from her vagina and suffered bruises there as well. Her hymen was torn and bleeding.

Before the rape, the victim had gone to see a girl friend of hers to practice some gospel songs for their church camp that was going to be held at Wabag at the end of the year during Christmas. She says, when she and her friend saw the prisoner and his other friend approaching, they decided to wait in another friend, Brenda’s house to let the prisoner and his friend go first because they appeared drunk. However, instead of going past, the prisoner and his friend produced a home made gun and forced the victim away at gun point from Brenda’s house. The victim did not in anyway encouraged them to rape her. She was totally innocent and unsuspecting of the unfortunate event. The offence was committed during broad daylight.

I find John Aubuku v The State [1987] PNGLR 267 helpful with the sentencing guidelines set out there.

As to the factors that would mitigate his sentence, I consider his youth to be the main one. I consider his plea of guilty to be more as the result of the weight of evidence against him because of the fact that he was caught in the act. I note from his record of interview that he told the police that he was forced at gunpoint by his friend to rape the victim. I reject that. I am not disregarding his plea of guilty completely as a mitigating factor but less weight would be given to it than I would otherwise give in a case where the prisoner had been totally honest by his own volition.

In the case I quoted above, the sentence imposed was 12 years. It was a pack rape by 8 men. The victim was led through bushes. She was repeatedly raped. The prisoner pleaded guilty. The court in that case said for rape committed by an adult without aggravating or mitigating features, a figure of 5 years should be a starting point, in a contested case 8 years, if rape is committed by 2 or more, etc. The aggravating factors would increase it.

In this case, the prisoner pleaded guilty. He is 18 years old, a first offender with no prior convictions. Taking into account all the circumstances of this case, I consider sentence of 7 years IHL to be appropriate. He has spent 1 year, 1 month in custody. I deduct that period. He will serve the remaining 5 years 11 months IHL.

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