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State v Hiviki [2004] PGNC 216; N2548 (29 April 2004)

N2548

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 of 2003

THE STATE

-V-

EZRA HIVIKI

POPONDETTA: KANDAKASI, J.
2004: 15th and 29th April

CRIMINAL LAW - Sentence – Rape of 10 years old girl by older relative – Breach of trust – Vaginal injuries caused requiring medical repair - Guilty plea –Expression of remorse – Whether sufficient - First time young offender - Criminal Code s. 347(1) as amended.

Cases cited:
James Mora Meaoa v. The State [1996] PNGLR 280.
John Aubuku v. The State [1987] PNGLR 267.
Thomas Waim v. The State, (Unreported judgment delivered on 02/05/97) SC519.
Lawrence Hindemba v. The State, (Unreported judgment delivered on 27/10/98) SC593.
The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.
Ian Napoleon Setep v. The State (Unreported judgment delivered on 18/05/01) SC666.
The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.
The State v. Pais Steven Sow (Unreported judgment delivered on 23/03/04) CR No.723 of 2003.
The State v. Junior Apen Simbu (No.2) (Unreported judgment delivered on 25/03/04) CR No. 1450 of 2003.

Counsel:
P. Kaluwin for the State
P. Kumo for the Prisoner

29th April 2004

KANDAKASI J: You pleaded guilty to a charge of rape of your own cousin sister (identified only as victim for her protection) during the night of 4th October 2003, at the Second Police Barracks here in Popondetta. The victim was 10 years old.

Relevant Facts

You committed the offence against the victim who was then fast a sleep in the night. You entered her room and locked it from the inside. You then reached the victim, removed her trousers and proceeded to forcefully, have sexual intercourse with her. Your actions caused pains to the victim and she called out for her mother three times. When her parents enquired as to what was happening, you told them that the victim must have been having a dream and left her in the room and you went to the house wind and sat there. Meanwhile, her mother went to her daughter’s aid but by the time she got there, the victim had gone to the toilet. As the victim came out of the toilet, she noticed that there was blood on her trousers. Thereafter, the mother with the help of a Mathew took the victim to the hospital.

At the hospital, the doctor found that the victim’s hymen was torn as well as her vaginal wall. This led to the bleeding in her vagina. She received a suturing of her torn vaginal wall and some antibiotics. The hospital discharged her on the following day.

Allocutus and Submissions

The Court administered your right to address the Court on sentence. In exercise of that right, you said sorry without more to the victim, her parents, the Court and God. Then you asked for leniency in terms of a suspended sentence with probation.

Your lawyer then made submissions on your behalf adding that you and the victim are close relatives, in fact cousins. You were sixteen (16) years old, while your victim was ten (10) years old. Therefore, there was an age difference of about six (6) years. You come from Hojavahambo village, here in the Oro Province. Grade 4 is the highest level of formal education you have reached. You are single and this is your first ever offence. Your lawyer also added that, you pleaded guilty to the charge, which indicates your acceptance of responsibility and effectively avoid the calling of the victim to testify against you and in the process relive your rape of her.

Further, your lawyer added that, you cooperated with police in terms of admitting to the commission of the offence, a position taken all the way up to this Court. He submitted too that, there were no aggravating features but conceded at the same time that, you committed an offence against a relative, thereby amounting to a commission of the other offence of incest. Hence, you breached the trust placed in you by the victim as a relative. In addition, the evidence shows that she suffered a torn vaginal wall that required suturing and medication.

Finally, you informed the Court that you remain in custody since your arrest on the day of the offence. So you have been in custody for more than 6 months now.

Your lawyer asked for a 6 years, part suspended and part custodial sentence. In making that submission, your lawyer submitted that sending you to prison would cause you more harm or damage, and turn you into a hard-core criminal.

The Offence and Sentencing Trend

Section 347 of the Criminal Code, creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. What you did to the victim is an offence not only against her, her family and relatives but also against all young girls, women, and the community in this province and the whole country of Papua New Guinea. There is already danger out there in the streets and highways of our beautiful country because of people like you. Therefore, it is very important that parents, relatives, friends, wantoks and people living in the same locality help look after and protect our women, children, and girls. It follows therefore, that when a crime is committed against another, by a wantok, friend, parent, relative or someone living in the same community, it is very serious because our sense of belonging and security is under attack.

Indeed, the Supreme Court acknowledged that position and confirmed a sentence of 14 years in James Mora Meaoa v. The State [1996] PNGLR 280. The Court there held that, a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers.

In your case, you raped your own and younger relative. Therefore, your relationship was much closer than the relationship in the case cited. She was a part of your family if not your community, as much as you were. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal satisfaction that could last only a few minutes.

Parliament in appreciating the seriousness of the offence of rape has on behalf of the people, prohibited such conduct. It did so by enacting s. 347 of the Criminal Code and prescribed a maximum penalty of life imprisonment. A number of Supreme Court decisions have elaborated on the relevant sentencing guidelines in this kind of cases. The much-celebrated case of John Aubuku v. The State [1987] PNGLR 267, is an example. These cases make it clear that the offence of rape is a serious crime and it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. Nevertheless, these earlier cases have recommended and imposed sentences ranging from as low as five (5) years for rape by an adult without any aggravating or mitigating features, to life imprisonment where there are aggravating features, such as perverseness, mental disorders or other serious aggravating factors.

Many subsequent cases applied these principles consistently with variations especially on the suggested sentences. In Thomas Waim v. The State, (Unreported judgment delivered on 02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:

"This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed."

On 27th October 1998, the Supreme Court in Lawrence Hindemba v. The State, (Unreported judgment delivered on 27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. In so doing, it surveyed some of the cases decided up to the date of the judgment and said these:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

The Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolgirl from her school. The rape was committed in the presence of the victim’s schoolmates who ran away.

This sentence was in 1998 and the offence of rape has not decreased, since then. Instead, it has been on the increase and the society has been calling for increases in the penalty.

Noting these concerns, I imposed on 12th October 2001 a sentence of 17 years, for a rape of a young pupil in breach of a de factor trust with some violence and threat after a trial in The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297. In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. The particular circumstances of each case dictate the kind the appropriate sentence. In the exercise of the discretion vested in him or her, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.

Further, I note that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. I attributed this increase in part to the kind of the sentences imposed up to then, and opined that, the past sentences appeared not to serve their intended purpose of deterring other would be offenders. This therefore calls, for a serious re-examination of the kind of sentences imposed to date. I noted that the Supreme Court in Lawrence Hindemba v. The State (supra), did echo that need. I then observed that the kind of sentences that have been imposed, since even Lawrence Hindemba have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

I then went on to note that, despite repeated warnings of an increase in the kind of sentences imposed, no meaningful sentence reflective of that was imposed up to that time. My brother Justice Sevua did try to meaningfully review and impose a higher sentence of 25 years compared to those imposed before his judgment in Thomas Waim v. The State (supra). Unfortunately, the Supreme Court struck it down to 18 years on the basis that the sentence was a "quantum leap."

I consider the concept of "no quantum leap" and noted that, there was no expressed legislative prohibition against "quantum leaps." Instead, Parliament after having considered all things, prescribed the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or a range. However, the judges have considered it appropriate to start as low as 5 years (see John Aubuku’s) and have not imposed the maximum prescribed penalty yet. The only exception to that is the case of Ian Napoleon Setep v. The State (Unreported judgment delivered on 18/05/01) SC666. In that case, Salika J., imposed life imprisonment but the Supreme Court had that reduced saying the sentence was a "quantum leap". At the same time, the Supreme Court said since the crime of rape has not stopped, sentences should be progressively increased and reduce the sentence then to 25 years.

In the meantime, this serious offence against society is on the increase. In the circumstances, I expressed the view that it is:

"... inappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

Bearing these in mind, I have decided to impose the term of 17 years imprisonment as an appropriate pronouncement against the offence in that case. I have also decided to impose that term to meet the society’s call for tougher penalties to deter would be offenders and hopefully help restore the safety of our girls and women, both on and off the streets and in all manner of relationships.

Since my judgment in The State v. Eddie Peter (No.2) (supra), there has been no significant increase in the sentences. The only exception to that is the judgment by Jalina J in The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380. In that case, his Honour imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of a 11 year old girl, in breach of a trust as a relative, as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

Apart from these two cases, the National Court has been continuously imposing sentences as low as the fully suspended 6 years sentence imposed by Manuhu A.J., and the 7 years sentence imposed by Justice Lenalia in Rabaul, which has received an adverse editorial in the National Newspaper last month. The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stronger sentence than what has been imposed to date in similar cases. This is necessary for a number of reasons. Firstly, the Courts have given sufficient warning of an increase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that it is a serious violation of a women or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence. Finally, the Courts exercise a power that belongs to the community, who expect the Courts to act as they themselves would, but within the constraints of the Constitution.

Last month in Vanimo, in the case of The State v. Pais Steven Sow (Unreported judgment delivered on 23/03/04) CR No.723 of 2003, I imposed a sentence of 15 years less time already spent in custody awaiting trial on a guilty plea. There, a young man raped a married woman who was with her two children, who witnessed what was happening to the mother. It was in a breach of de-factor trust as the prisoner and the victim were wantoks living in the same village. The victim did not suffer any physical injuries.

Also, last month in The State v. Junior Apen Simbu (No.2) (Unreported judgment delivered on 25/03/04) CR No. 1450 of 2003, I imposed a sentence of 13 years. In that case, the prisoner a 16 year old boy raped his own niece who was about 10 years old. The only factors in aggravation were that, there was a trial and breach of trust placed on him as an uncle.

Your Case

In your case, I note in addition to your other personal backgrounds, that you are single and unemployed. This is your first ever offence, meaning this is the first time you have broken the law and appeared in a Court of law. I find therefore, that this is the first factor in your favour. Secondly, you did not use any offensive weapon to secure the rape on the victim. Third and finally, you pleaded guilty, saving the victim further unnecessary embarrassment and mental anguish in terms of recalling the painful experience. This also saved the State and the Court time and money that a trial could have forced on.

These factors are however, outweighed by the factors that operated against you. The first is the fact that, rape is not only a violent offence against women and girls but it is also a serious offence against the community and or the nation as it goes against the good conscious of normal law-abiding people. Closely connected to this fact is the fact that the offence of rape is a prevalent offence. As such, it calls for a server penalty in an endeavour to send a massage to like-minded persons that the sentences in rape cases are increasing to reflect the seriousness of the offence.

Next and more importantly, is the fact that this offence was against a small girl by an older boy. She was only 10 years old whilst you were 16 years old. Therefore, you were much order than her. This makes your case come closer to the case of The State v. Junior Apen Simbu (No.2) (supra). However, that case is distinguishable by the fact that conviction was after a trial and that there was no injury caused to the victim.

Further, you committed the offence against a relative. As I said before, commission of an offence against a known person amounts to a breach of trust, because ordinarily it is unexpected that, persons one knows would turn around and commit an offence, such as rape against him or her. Certain level of trust and confidence exists, that members of a family, relatives, community or an area would protect and come to the aid of one of their members when he or she is in trouble. Acting against such a confidence or trust amount to a serious breach because it begins to eat away into that which holds families, communities and a nation together.

Finally, you disturbed a sleeping little girl and sexually attacked her. In so doing, you caused physical injuries to her vaginal wall, causing her to bleed. This factor makes your case come closure to that of The State v. Kunija Osake (supra). The distinction between that case and the present is that, the offender there was an older and married man as opposed to a 16 years old here.

Taking all of these factors and principles into account, I am of the view that, a sentence between 10 and 15 years would be appropriate. Accordingly, I impose a sentence of 13 years less the period you have already spent in custody and order that you serve the balance of that sentence in hard labour.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor