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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1451 & 1453 of 2003
THE STATE
EKI KONDI,
MIKE JOHN,
ALLAN NEMO,
KELLY SOP KONDI
& ISSAC SIP
(No.2)
VANIMO: KANDAKASI, J.
2004: 22nd and 26th March
DECISION ON SENTENCE
CRIMINAL LAW - Sentence Gang abduction and rape – Broad daylight – Prisoners armed with bush knives – Threats of violence to third parties and commission of other offences – Conviction after trial – Pre-valence of offence – Community call for stiffer penalties - 25 years imprisonment for leader, 22,20 and 18 years for others depending on degree of participation and age imposed.
Cases cited:
John Aubuku v. The State[1987] PNGLR 267.
Thomas Waim v. The State(02/05/97) SC519.
Lawrence Hindemba v. The State (27/10/98) SC593.
The State v. Eddie Peter (No 2) (12/10/01) N2297.
The State v. Kunija Osake (22/05/03) N2380.
The State v. Ian Napoleon Setep (18/05/01) SC666.
The State v.Tony Pandau Hahuahoru (No.2) (21/02/02) N2186
Winugini Urugitaru v. The Queen [1974] PNGLR 283.
Goli Golu v. The State [1979] PNGLR 653.
Andrew Uramani & Ors v. The State [1996] PNGLR 287.
Counsel:
Mr. F. K. Popeu the State
Mr. D. Kari for the Accused
26th March, 2004
KANDAKASI J: On Wednesday this week, the Court convicted you all on one count each of abduction and rape. That was after a trial.
The Court asked you to address the Court on your sentence. All of you decided to leave that to your lawyer. The only exception to that was Kelly Sop Kondi who maintained his claim of innocence and asked for a lenient sentence.
Your lawyer has informed the Court of your respective personal and family backgrounds which I note and take into account before arriving at a decision on each of your sentences. These are in following:
Eki Kondi, you are 21 years old and married with a daughter now deceased. Out of your family, you are the third in a family of three sisters and three brothers. You are educated up to grade 9 and unemployed. Your parents are alive and you live with them in your village, Samararu. Police apprehended you for this trouble on 4th May 2003 and you have been in custody since then.
Next, Mike John you are single and 19 years old. You have a sister and that you are the second in a family of two children. You have no formal education and are unemployed. You live with your mother in your village at Samararu. You were also apprehended and remanded in custody since 4th May 2003.
As for Allan Nemo, you are also single and 20 years old now. You come from a large family of 10 children and that you are the ninth born. You have 5 sisters and 4 brothers. You have been educated up to grade 9 and are unemployed. Although you come from Samararu village, you live at the Wusipi Settlement. You were apprehended and remanded in custody since 4th May 2003 too.
Turning to Kelly Sop Kondi, you are 20 years old but married with 2 children aged 3 years and 2 years. In your family, you are the third born in a family of 5, 3 sisters and 1 brother. You did primary education up to grade 3. At the time of the offence and your apprehension on 4th May 2003, you were employed with Vanimo Forest Products. At that time, you were living with your family at Wusipi Settlement but originally you come from Samararu village. You have been in custody since your apprehension.
Finally, Issac Sip, you are 21 years old and single. You are the eldest in a family of 4 brothers and 3 sisters. You have no formal education and are unemployed. Your village is Ningra, were you live with your parents. You were apprehended with the others and have been in custody since 4th May 2003 too.
In addition, I note that this is your first ever trouble with the law.
Facts:
The relevant facts are set out in the judgment on verdict, which I need not repeat.
However, for the purposes of sentencing, I note the following:
In addition to these facts, I note that you denied the charges. This forced the victim to come into Court and testify against you. In that way, you forced her to recall the bad memories before her assailants and other strangers.
The Offence
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.
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,[1] 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. Sentences range from 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 judgments applied these principles with variations especially on the suggested sentences. In Thomas Waim v. The State,[2] 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."
More recently, the Supreme Court in Lawrence Hindemba v. The State,[3] 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 acting displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolgirl from school. The rape was committed in the presence of the victim’s schoolmates who ran away.
This sentence was in 1997 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 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).[4] That was in a case of one on one rape. In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. Usually, the particular circumstance of each case determines the appropriate sentence in subsequent cases. 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 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,[5] 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, even though warnings were given, 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 sentence much higher than those imposed before his judgment in Thomas Waim v. The State,[6] by imposing a sentence totaling 25 years. Unfortunately, the Supreme Court struck it down to 18 years on the basis that the sentence imposed by the National Court was a "quantum leap."
I considered 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 for that matter a range. However, the judges have considered it appropriate to start as low as 5 years (see John Aubuku’s) and are yet to impose the maximum prescribed penalty. 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 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 other would be offenders and consequently 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),[7] there has been no significant increase in the sentences by the National Court. The only exception to that is the judgment by Jalina J in The State v. Kunija Osake.[8] In that case, his Honour imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an 11 year old girl, in breach of trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.
As for the Supreme Court, one of the most recent judgments in a case of abduction and rape is The State v. Ian Napoleon Setep.[9] That was a case of gang abduction and raped at gunpoint. A convicted murderer serving time escaping from prison led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellants wife. The National Court imposed life imprisonment but the Supreme Court on appeal had it reduced to 25 years following the no quantum leap principle in Thomas Waim v. The State.[10] At the same time, it accepted that sentences must be progressively increased rather than jumping from a term of years to life imprisonment.
In my view, the two National Court judgments cited above does in fact progressively increase the sentences in rape cases. Despite the need for a progressive increase in view of the increase and prevalence of the offence, some National Court judges have been imposing lenient sentences. Recent examples of these are the fully suspended 6 years sentence imposed by Manuhu A.J., which has received much public outcry and the 7 years sentence imposed by Justice Lenalia in Rabaul, which has received an adverse editorial in the National Newspaper.
The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those 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 woman 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.
Bearing this in mind, I imposed in this circuit a sentence of 15 years on a guilty plea and 13 years in another after a trial. I found the circumstances in which the offence was committed in the former more serious than that of the latter. This explains the differences in the sentences.
Your Case
In your case, once again I take into account each of your personal and family backgrounds as noted above. I also note that this is your first ever offence. This means, this is the first time you have broken the law and appeared in a Court of law. I find this factor in your favour.
The other factor in your favour is that, the victim did not sustain any serious physical injuries. She is fortunate that she was able to escape any such injuries notwithstanding the attack on her sexually by you men. That does not mean however, that she did not suffer psychologically. The case authorities to date make it clear that a victim of such an offence suffers and continues to suffer such injuries.
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 the first, is the other factor that the offence of rape is a prevalent offence. As such, it calls for a severe penalty in an endeavour to send a clear massage to like-minded persons that the sentences in rape cases are going to increase significantly to reflect the seriousness of the offence.
Thirdly, this was a case of gang rape. This was after a gang abduction from a dwelling house. For the purposes of your offence, you entered the premises and houses of two different families totally uninvited. You were therefore, illegally on premises and committed acts of threats of violence if they stood in the way of offence.
Fourthly, this was not a case of chance abduction and rape. Rather it was a chase of a specific target or victim and you made sure that nothing was going to be in your way.
Further, after having raped the victim, you took away her clothing rendering her into a state of more shame and the risks of further sexual attacks. Indeed, that risk did in fact occur with her being yet again, raped by two other persons.
Furthermore, you denied the charges and that forced the State to call the victim and other witnesses to come and testify against you. The victim thus had to go through the further trouble of facing her assailants in court and recall the bad memories. It also took the Court’s time unnecessary.
Finally, even after the Court found you guilty, you remain unrepentant and unremorseful. So you have not shown any sorrow and shame over what you did.
Taking all of these factors and principles into account, I accept your lawyers’ submission that a sentence between 18 years and 25 years is appropriate. At the same time, I do not consider it appropriate that all of you should receive the same sentence, but varied ones to reflect the parts you played and your respective antecedents.
The law clearly is that, co-offenders of an offence should receive the same treatment if there is nothing warranting a different treatment. The different roles played by co-offenders in the commission of an offence, dictates different treatment of the offenders. This means an offender who plays a major role is liable to receive a higher penalty than the one who plays a lesser role. In addition, the different antecedents of the offenders dictate a treatment of the offenders differently, with the result that one offender may receive a higher penalty while another may receive a lower penalty.
In the case of The State v. Tony Pandau Hahuahoru (No.2)[11], I discussed the parity principle and made the following remarks after referring to a number of Papua New Guinea cases like Winugini Urugitaru v. The Queen;[12] Goli Golu v. The State[13] and Andrew Uramani & Ors v. The State:[14]
"A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them."
In this case, Eki Kondi and Kelly Sop Kondi played lead roles particularly at the point of abduction. Eki Kondi’s role went even a little further in that he was the driver of vehicle used to facilitate the offences. As for the rest of you, there is no evidence of what exactly you did apart for the Court’s finding that, you where part of a group that abducted and raped the victim. The fact that you were part of the gang gave strength and courage to the commission of the offences. There is a further consideration for Mike John. You were the youngest amongst your group.
Noting these differences, I impose a sentence of 25 years against Eki Kondi and 22 years against Kelly Sop Kondi. As for the rest of you, I impose a sentence of 20 years each save for Mike John. For you, I impose a sentence of 18 years due to your age. These are for the offence of rape.
As for the abduction of the victim, the same considerations as above with necessary modifications apply. Then nothing the maximum prescribed sentence is 7 years, I consider a sentence of 4 years appropriate. I make this sentence concurrent with the sentence for rape. This I so do noting that, this was out of the one transaction or serious of transactions, the same parties and victims involved and on the same day and place.
Finally, I order that you serve your respective sentences in hard labour, less the periods you have already spent in custody awaiting
your trail and sentence. A warrant of commitment will issue forthwith in those terms.
_________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor
[1] [1987] PNGLR 267.
[2] (02/05/97) SC519.
[3] (27/10/98) SC593.
[4] (12/10/01) N2297.
[5] Supra note 5.
[6] Supra note 4.
[7] Supra note 6.
[8] (22/05/03) N2380.
[9] (18/05/01) SC666.
[10] Supra note 2.
[11] (21/02/02) N2186.
[12] [1974] PNGLR 283.
[13] [1979] PNGLR 653.
[14] [1996] PNGLR 287.
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