PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 434 OF 2006

THE STATE

V

GENE URIKA

Finschhafen: Kirriwom, J
2006: 4 & 13 October

SENTENCE - Rape – Plea of guilty – Elderly person – Prisoner sexually penetrated the victim by force in retaliation – Victim failed to pay compensation to the prisoner as ordered by the village peace and good order committee for an earlier encounter between them – Prisoner took advantage of the victim’s solitude on the day of incident and physically overpowered her by tackling her to the ground and sexually penetrated her – Evidence in committal depositions supposedly supportive of circumstances of aggravation quite weak – Prisoner used no more force than was necessary to subdue the victim into submission – Minimal violence – No serious injuries suffered – Prisoner reconciled with the victim after the act albeit not accepted – Offence treated as rape simpliciter – Strong mitigating circumstances – Sentenced to 5 years imprisonment in light labour – Criminal Code, s.347(1) and (2).

Criminal Law – Practice and Procedure – Indictment – Pleading – Rape allegedly accompanied use of violence and threats of use of offensive weapon – Indictment pleaded circumstances of aggravation as alleged – Desirability of pleading circumstances of aggravation – Pleading to be based on clearly demonstrated evidence.

Cases Cited:
Nil

Counsel:
N. Miviri with J. Done, for the State
M. Mwawesi, for the Accused.

DECISION ON SENTENCE

6 October, 2006

1. KIRRIWOM, J:	The prisoner Gene Urika pleaded guilty to rape committed with circumstances of aggravation contrary to s.347 of the Criminal Code which carries a maximum penalty of life imprisonment under subsection (2) of s.347.

2. Section 347 is worded in these terms:

"347. Definition of rape.

(1)	A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to Subsection 92), imprisonment for 15 years.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

3. The charge in the indictment reads as follows:

"GENE URIKA of Zageheme village, Sialum, Morobe Province stands charged that he on the 27th day of August, 2005 at Finschhafen in Papua New Guinea did sexually penetrate one WENDY BENAG without her consent by his penis into her vagina;

AND at the time of, or immediately before or after the commission of the offence, he threatened to use a weapon."

4. The facts of this case are that at about 2 pm on the day of this trouble the victim Wendy Benag was at her home at Ketac, Busiga with three small children. All the adults had left to attend a sports day at the nearby school.

5. She was cleaning the footpath outside her house when the accused arrived. He had a bush knife in his hand. Wendy Benag saw the accused staring at her and she greeted him but he said nothing. Instead he told her to go into the bush with him and she was taken aback by his proposal. She looked around and there was no one within sight and before she had time to think of her next move he grabbed both her hands and pulled her to him and closed her mouth with his hands. He then pushed her to the grounds where he lifted up her skirt and pulled off her underpants and had sex with her until he ejaculated. He showed her a K50 note and told her that he would change the money and pay her K20 and went away. Later he returned with K20 and gave it to her but she refused to accept and left on her bilum bag and went away.

6. The victim was unhappy with the assault by the prisoner that she complained to her sister immediately after the incident who then reported to the police. She also reported to the village church congregation chairman.

7. The prisoner was arrested and charged with this offence.

8. Because the prisoner was charged with aggravated rape, the maximum penalty here is life imprisonment. However, whether this case warrants punishment under subsection (2) of s.347 depend on the evidence tendered. Circumstances of aggravation must be appropriately supported by evidence before penalty under subsection (92) can be invoked. Pleading circumstances of aggravation is one thing; placing relevant evidence of such circumstances of aggravation before the court is a different thing altogether. A person can only be convicted or punished based on what is supported by the evidence.

9. The prisoner admitted the offence from the very start of this case when he was apprehended by the police. This is shown in his record of interview dated 19 September, 2005 and also in his s.95 and s.96 statements in the District Court Committal Court. In this Court he repeated the same story. However, the story itself does not raise any legal defence except that it explains the prisoner’s reasons and his state of mind at the time of this offence.

10. According to the prisoner the victim insulted him and his family by denigrating his daughter who was married to a white man. The prisoner claimed that the victim made some remarks about his daughter that offended him. The victim is alleged to have said words to the effect that the prisoner’s daughter who was enjoying the good fortunes of living with a white man would not last for long when she would have to find food to feed her bastard child.

11. According to the prisoner he raised this matter with the village elders who directed the victim to pay compensation of K200 and a pig which she failed to do so and the family reduced the amount to K50 and still she had no money or pig to pay this compensation. This story was not refuted by the State so I take it to be admitted as to its veracity and truth.

12. When all the waiting was in vain, the prisoner upon seeing the victim on the day of this trouble where she was all on her own after all the villagers had gone to watch the soccer match, he decided to take the opportunity given to him by chance to square his debt with her once and for all. There is no evidence that he deliberately set out on this day to commit this offence. It was a crime of opportunity driven or motivated by half-buried grievance. So he took the law into his own hands. Unfortunately revenge is not what the court approves. The Bible does not approve of it either.

13. The prisoner is a middle aged man in his early to mid-fifties and comes from Kerowagi in the Chimbu Province but married to a woman from Ketac village and they have several children. In examining this case I do not overlook the fact that the prisoner comes from the part of Papua New Guinea where compensation and pay-back are common. Failure to pay compensation can turn ugly and the prisoner was influenced by this primitive beliefs or reasoning to do what he did.

14. Prisoner had no right to take the law into his own hands. If he was unhappy with the victim for the reasons he gave, he should have taken it to the District Court or complain to the police. At his age, he should be thinking more like an elderly man with wisdom that he must part to the young people instead of acting like a young man. He did not expect to get a gold medal or praise for evening the score with the victim for her insult upon his family. He is way past his age to be thinking like this.

15. I bear in mind that the prisoner is a first offender, an elderly man in his mid-fifties, pleaded guilty and cooperated with the police. In his favour I bear in mind also that the victim did not suffer any physical injuries, apart from the sexual intercourse, and there is no evidence that the prisoner threatened the victim with the bush knife he had. There is no evidence that the bush knife was actually used to threaten the victim. Although he had the bush knife when he went and found the victim, when he decided to pursue his unlawful intentions, he discarded his knife and overcame the victim’s resistance by his sheer masculine strength. In this regard, I can only find the prisoner liable to punishment under subsection (1) of s.347 which carries a maximum penalty of fifteen years.

16. This is not a worst case of rape. The victim on the other hand is not altogether blameless. There was a de facto provocation. The prisoner’s mind was unsettled for some time because of the victim’s failure to make good the hurt she caused to the prisoner and family.

17. Taking into account the prisoner’s old age, good background, plea of guilty, expression of remorse and those matters advanced in mitigation by his lawyer, I sentence the prisoner to five years imprisonment in light labour. I deduct two and half months spent in custody awaiting trial. That now leaves him with four years and nine and half months to serve. Bail of K100 refunded to the prisoner.

_______________________

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