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State v Balal (No 2) [2005] PGNC 132; N2821 (25 February 2005)

N2821

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 689 of 2004

THE STATE

-v-

KOMAI BALAL (No. 2)

Madang: Manuhu, AJ

2005: February 24 & 25.

SENTENCE

CRIMINAL LAW – Particular offence – Rape – Circumstances of aggravation – One on one rape – Rape of thirteen year old daughter – Assaults – Victim tied up and left in bush – fifteen years appropriate sentence.

Cases cited in the judgment:

State v John Aubuku [1987] PNGLR 267.
The State v Togon David (2000) N2026.
State v Penias [1994] PNGLR 48.
State v Thomas Madi (2004) N2625.
The State v. Damien Mangawi (2003) N2419.
The State v Flotyme Sina (No 2) (2004) N2541.
The State v Luke Sitban (No 2) (2004) N2566.

Counsel:
Mr. M. Ruarri, for the State.
Mr. L. Vava Jr., for the Prisoner.

25 February 2005.

MANUHU, AJ: The Prisoner, Komai Balal, after a trial, was found guilty on one count of rape. On 22nd March 2004, the Prisoner, at Jelso, Madang, committed rape, upon Jacobeth Komai, who is his own daughter.

The Prisoner, on 21st March 2004, approached the victim in his house wanting to have sexual intercourse with her. The victim disapproved of the Prisoner’s incestuous attitude so she left and spent the night at her aunt’s house. On Monday 22nd March 2004, the Prisoner went to the aunt’s house to see the victim. Upon sighting the Prisoner, the victim wanted to run and hide but was ordered to stop by the Prisoner. The Prisoner then proceeded to assault her. After that, the Prisoner went to speak to the aunt’s husband. At that time, the victim went into the bushes and hid herself.

Sometimes later, the Prisoner located the victim in the bushes and had sexual intercourse with her. She submitted to sexual intercourse with the Prisoner because she feared for her safety. The Prisoner then tied her up around her legs, stomach and hands. She was then left in the bushes to die. She was later found and rescued by her aunt.

The Prisoner is about forty-two years old, is a villager who earns his living through subsistence farming. His wife is deceased. He has six children, including the victim. He has a vanilla garden which is probably his only way of earning an income. The Prisoner was remorseful in his allocatus but it is difficult to reconcile his belated remorse with his denial and lies all along. He is willing to pay compensation but I do not think compensation would be sufficient to erase the shame and moral damage he has inflicted upon his own daughter and his own family.

I note that no serious physical harm was done to the victim. She has not been made pregnant by the Prisoner. The victim appears healthy and well but the stigma of an incestuous rape will remain with her forever. It is hoped that she can try her best to forget the past and live a normal life. The Prisoner is a first offender but at his age he does not need any lesson on how a father should treat his children. He is actually older than me. In addition, the crime he committed was pre-meditated.

Rape is a prevalent offence which calls for deterrent sentences. The recent amendments to the Criminal Code which, among other things, introduced the circumstances of aggravation and removed the practice of requiring corroboration clearly demonstrate the community’s disapproval of the crime of rape. The courts have expressed disgust over the crime of rape for many years. All of us were conceived in our mothers’ wombs and were eventually brought into the world by our mothers. Many of us have sisters and daughters. We must therefore respect and protect our female counterpart.

Under s. 347(1) of the Criminal Code, a person who sexually penetrates a person without his consent is guilty of the crime of rape, and faces a maximum penalty of fifteen years imprisonment. However, where rape was committed in circumstances of aggravation, the accused is liable, subject to s. 19, to imprisonment for life. Circumstances of aggravation, generally under s. 1(1) of the Criminal Code, includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. Relevant to rape, circumstances of aggravation, under s. 349A of the Criminal Code, include, but not limited to, circumstances where:

(a) the accused person is in the company of another person or persons;

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon;

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant;

(d) the accused person confines or restrains the complainant before or after the commission of the offence;

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency;

(f) the accused is a member of the same family or clan as the complainant;

(g) the complainant has a serious physical or mental disability;

(h) the complainant was pregnant at the time of the offence;

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

In this case, the victim is the Prisoner’s own daughter. What the Prisoner did does not only amount to incest, which is a crime, but also an exploitation of a girl of a very young age of thirteen years. He resorted to bullying tactics and assaults in order to satisfy his evil intentions of having sex with his very young daughter. And, as if having sexual intercourse with his own daughter was not enough, he tied her up in the bushes and left her there to die. What good can we see in this man? Nothing. The mitigating factors have been overshadowed by the gravity of the offence. He does not deserve any sympathy. He qualifies for a deterrent sentence to demonstrate to him and likeminded fathers that rape and sexual abuse of ones own daughter is disgusting.

This is a one on one rape. In the case of State v John Aubuku [1987] PNGLR 267, a sentence of ten years was imposed in circumstances where the prisoner was a policeman and the victim was an inmate. The prisoner used a knife to threaten the victim. The prisoner was in a position of trust towards the victim. In The State v Togon David (2000) N2026, a sentence of seven years was imposed on a prisoner of eighteen years who pleaded guilty and was a first offender. In State v Penias [1994] PNGLR 48, a sentence of nine years was imposed on a prisoner who got masked, abducted the victim and held her for two hours. In State v Thomas Madi (2004) N2625, after a trial, a sentence of twelve years was imposed on a thirty-four year old man who raped an eighteen year old Grade Ten student. In State v. Damien Mangawi (2003) N2419, which was an unlawful carnal knowledge case involving a twelve year old victim, a sentence of twelve years was imposed. In The State v Flotyme Sina (No 2) (2004) N2541, a sentence of seventeen years was imposed on the prisoner for the rape of a married woman. In The State v Luke Sitban (No 2) (2004) N2566, a sentence of seventeen years was imposed on a prisoner for raping a ten year old girl.

In this case, I have considered the facts, the mitigating factors, and, in particular, the circumstances of aggravation. I have also considered the sentencing range in similar cases. I note also that the Prisoner was convicted after a trial. In all the circumstances, I impose a sentence of fifteen years. The custody period of eleven months is deducted. The Prisoner has fourteen years and one month to serve in hard labour.

Sentenced accordingly.
________________________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Paraka Lawyers