N3196

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 855 OF 2005

THE STATE

v

ROBERT SOLOMON (No. 2)
-Prisoner-

Kimbe: Davani .J
2007: 17, 18 & 19 April

SENTENCE – 3 counts of aggravated rape – trial – prisoner guilty of 3 counts – s. 347 (1) (2) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (‘CCSOCAC’).

SENTENCE – female victim aged 11 – prisoners adopted sister – rapes occurred over a period of time – victim threatened, beaten – circumstances of aggravation proven – s. 347 (2) (a) (b) (c) (d) (i) of 	CCSOCAC.

SENTENCE – prisoner aged 38 – offences occurred close together but are different in character and were not committed in the prosecution of a single purpose – cumulative sentence on 3 counts – 20 years each.

Cases cited

Papua New Guinea Cases
Tremallan v R [1973] PNGLR 116 at 119;
Public Prosecutor v Sidney Kerua and Billy Kerua [1985] PNGLR 85; 
John Aubuku v the State [1987] PNGLR 276;
State v Kaudik [1987] PNGLR 201;
State v John Pesa [1994] PNGLR 317 N1231;
State v Kenneth Pennias [1994] PNGLR 48;
James Mora Meaoa v the State [1996] PNGLR 280;
State v Peter Lare N2557;
State v John Ritsi Kutetoa N2814;
State v Kemai Lumou N2684;

Overseas Cases
R v Betham [1973] 1QB 357; 

Text Book
D.A. Thomas, Principles of Sentencing;

Counsel
A. Kupmain, for the State
P. Kapi, for the Prisoner

SENTENCE

19 April, 2007

1. DAVANI .J: On 19 April, 2007, the court found Robert Solomon (‘Prisoner’) guilty of 3 counts of aggravated rape, charges laid under s. 17 or s. 347 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children Act 2002 (‘CCSOCAC’). This provision reads;

"S. 347 DEFINITION OF RAPE

(1)	A person who sexually penetrates a person without his consent is guilty of a crime of rape.
(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."

Penalty:	Subject to subsection (2), imprisonment for 15 years."

Evidence

2.     After a trial, the court found the following facts to have occurred which were admitted by the prisoner.

3.     The victim GS was aged about 11 years old, when she was raped on 5 separate occasions by the Prisoner. These incidents of rape occurred during these periods;

i.	Between 1 June, 2004 and 30 June 2004, at Kavui Oil Palm settlement, Kimbe, West New Britain Province.
ii.	Between 1 July, 2004 and 31 July 2004, at Kavui Oil Palm Block/settlement, Kimbe, West New Britain Province.
iii.	Between 1 June, 2004 and 31 August, 2004 at Kavui Oil Palm Block/settlement, Kimbe, West New Britain Province.

4.     The prisoner was aged 38 years when he committed the rapes upon the victim.

5.     The prisoner’s home is at Kavui Oil palm block, Kimbe, West New Britain Province. His parents resided on this block with all his brothers and sisters until 2001 when his father died. Before that, the victim, whilst still an infant, was brought into the prisoner’s home by his parents. This was done because the victim’s mother is related to the prisoner’s father and that she had gone on to remarry. During the period 1980 to 1999, the prisoner was in the Solomon Islands. He returned to Kimbe, Kavui Block in 1999.

6.     It was not until after the prisoner’s father’s death and after his mother left for Madang (in 2001) that the prisoner began to mistreat the victim first by subjecting her to fear and intimidation, then later, by constantly beating her. The beatings she sustained were very severe, always done with the use of a stick or his hand and feet. It was during this period of fear and intimidation that the prisoner then threatened the victim into having sexual intercourse with him which she succumbed to. Using this fear, he dominated her life.

7.     The prisoner admitted that he did have sexual intercourse with the victim, on 5 different occasions. The court found that during those occasions he used a knife to threaten the victim and that he often threatened to severely beat her if she did not have sex with him. The victim lived a life of fear, always fearful of what the prisoner would do to her. When he beat the victim, she sustained welts and cuts and always bled from these beatings. 

8.     The prisoner’s wife was a part of these dramatic events, always there with the prisoner and always insulting the victim. She would also tell the prisoner to beat up the victim which the prisoner often did. The prisoner’s wife is no longer with the prisoner having left for her home in the Solomon Islands, sometime in 2004 or 2005.

9.     The victim has a child from the prisoner as a result of the rapes upon her.

Analysis of evidence and the law

10.     The factors against the prisoner are that he denied the charges. That forced the victim to come to court and re-live the crimes perpetrated upon her. 

11.     The victim is the prisoner’s sister. Although she is not his natural sister, she was given to his parents by her parents. His parents took her into their care and cared for her as their own since she was an infant to when she was about 9 when the prisoner returned from the Solomon Islands in 1999. The prisoner abused that trust when he began to mistreat the victim.

12.     As I said in my decision on verdict, the prisoner kept the victim in his house and treated her like a slave. He expected her to perform every chore in the house and to listen to his every whim. If she did not, he would severely beat her. She was also the prisoner’s sex slave in that whenever he wanted sex, he sent for her. He knew he had power over her because he was a man, older than her, stronger, and he provided for her in every way. She had nowhere else to go.

13.     Both counsel cited to me State v Peter Lare N2557 dated 20 May, 2004, judgment by Kandakasi J, where the victim aged 12 years was raped by the accused aged 40. The victim was the accused’s adopted daughter. The victim was inflicted with a sexually transmitted disease as a result of the rape. The court labelled him as a sexual predator and sentenced him to 20 years.

14.     In State v John Ritsi Kutetoa N2814 dated 22 March 2005, Cannings .J sentenced a man who pleaded guilty to one count of sexual penetration to 17 years in hard labour. The victim was aged 12 and the accused, 25.

15.     In State v Kemai Lumou N2684 dated 23 September 2005, after a trial, Kandakasi .J found the accused guilty of one count of sexual penetration of a girl under the age of 16 years, in that case, 14 years. He was her uncle. He sentenced him to 17 years.

Sentence

16.     In consideration of the mitigating factors, I note the prisoner’s remorse and his plea for mercy to this court. This is also his first offence.

17.     Before I discuss the evidence and the law in relation to this case, I set out below views expressed by my brothers in both the Supreme and the National Court in relation to the crime of rape. In James Mora Meaoa v the State [1996] PNGLR 280, the Supreme Court said;

"We also agree with the learned trial judge when he said that men should not feel able to take advantage of any girl, which we extend to any female person young or old, who happens to be by, be they on a public road in the gardens or here on the coast. We agree that the right of all persons female as well as male not to be assaulted must be clearly restated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all the female population regardless of age or background." 

We restate what was said by Injia .J in the State v Kenneth Pennias [1994] PNGLR 48;

"Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel alone, freely or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. Women in towns and villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands and in small towns and centres, who once enjoyed freedom and tranquillity are living in fear and feel restricted. That is why the Supreme Court in John Aubuku v the State [1987] PNGLR 267 said that people who commit rape must be punished with a strong punitive sentence."

18.     In the case of the State v Kaudik [1987] PNGLR 201 and John Aubuku v the State [1987] PNGLR 267, I adopt these guidelines as relevant to this case and applicable to factors going to aggravation and mitigation.

19. In John Aubuku (supra), the prisoner was a policeman and the victim was a suspect in his custody at the police station. He was in a position of trust towards her. He used a knife to frighten her and rape her in the cell. He pleaded not guilty. The Supreme Court confirmed the sentence of 10 years imposed by the National Court. That case was decided 20 years ago.

20.     In James Mora Meaoa v the State [1996] PNGLR 280, the appellant was operating a dinghy and the victim, aged 12, one of his passengers. The boat capsized and the victim who could not swim was assisted by the appellant to get to shore. He threatened her after he had rescued her and then had forced sexual intercourse upon her, followed by two others.

21.     He was convicted following a trial. His sentence of 14 years was confirmed by the Supreme Court. The court considered that the extra distress to the victim in giving evidence would not entitle him to any discount on sentences. I adopt what the court said at pg. 9;

"We also repeat what was said by the Supreme Court in John Aubuku v the State [1987] PNGLR 276;

"The extra distress that giving evidence can cause to a victim means that a plea of guilty more so than the other cases, should normally result in some reduction from what would otherwise be the appropriate sentence."

22.     From 2001 to 2004, a period of 4 years, the prisoner mistreated and was cruel to the victim. During 2004, that was when the prisoner decided that he could also use the victim for sex. That was after he had exerted enough fear upon her for her to obey his every whim.

23.     When she had the opportunity to escape, she did, although other times when she tried escaping, the prisoner "recaptured" her by force as demonstrated by the evidence before me.

24.     This is the worst offence of its kind. The prisoner said he had sex with the victim on 5 occasions. I found that on all these 5 occasions, he used force upon her but the State only charged the prisoner for 3 counts of sexual penetration or rape. He had weapons in his possession or near him when he had sex with the victim.

25.     The prisoner breached a position of trust, as the victim’s older brother and guardian. At trial, I found to be proven, the circumstances of aggravation as pleaded on the indictment.

26.     I noted that the prisoner is a very cruel man. I also noted that the prisoner thought he could have his way with the victim because she was not his natural sister. And this could have continued if she had not run away.

27.     In PNG, we love our children. We care for the children of our brothers and sisters. We care for our relatives’ children. Yet the prisoner saw fit to mistreat and just about destroy the life of this young girl, who also is a member of his family.

28.     Both counsel submitted for a sentence between 17 and 20 years. Mr Kapi asked that sentence be concurrent on three counts. Mr Kupmain however asked that sentence be cumulative.

29.     Should sentence be made concurrent? Although I pressed for proper submissions on the law from counsel, I only heard what I stated above.

30.     First, what is the totality principle and how is it applicable to this case?

31.     This principle was first discussed in Tremallan v R [1973] PNGLR 116 at 119 where Minogue CJ and Frost SPJ said;

"We feel that generally speaking, sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts."

32.     D.A. Thomas in his text "Principles of Sentencing" at pg. 50 said;

"The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident if they are essentially different in character and involve different subject matter".

33.     His Honour Miles .J when dealing with a number of English and Papua New Guinean cases, adopted the totality principle as expressed in R v Betham [1973] 1QB 357;

"…when a man is being sentenced at the same time for a number of different crimes, it is necessary, when fixing the length of each sentence, to take into account whether it is going to be made consecutive or concurrent with other offences. Thus, when a man is being sentenced for, say, for separate burglaries, it is not unusual for him to be sentenced to three years on each count concurrent. While each count, considered alone, merits three years imprisonment, 12 years would be too severe a punishment for the whole course of the crime."

34.     In Public Prosecutor v Sidney Kerua and Billy Kerua [1985] PNGLR 85, referred to by Injia AJ (as he then was) in the State v John Pesa [1994] PNGLR 317, N 1231 dated 12 May 1994, the trial judge referred to 3 principles in relation to the totality principle held in Public Prosecutor v Sidney Kerua (supra). I consider the third principle to be relevant to this case. It is;

"The third rule, the totality rule or principle, is that when the sentence (sic) has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentence to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the cumulative behaviour."

35.     In State v John Pesa (supra), Injia DCJ, sentenced a person to 5 years each in hard labour for 3 counts of aggravated robbery committed on the same night but upon different victims. His Honour ordered that sentence be cumulative at 15 years. He reduced 2 years off each sentence because of the crushing effect.

36.     In this case, the offences involve different sets of facts although it is the same victim. The victim was raped in the house on 3 different occasions and in the garden on 2 separate occasions. They are different sets of facts and are different in character.

37.     Considering the nature of the offence, sentence should be cumulative. The prisoner is sentenced to 20 years on each count. In total, he will serve 60 years. Because of the totality principle and the fact that this sentence will have a crushing effect on him, I reduce each sentence by 5 years. He will serve 15 years each, a total of 45 years in hard labour. This is reduced by time spent in custody of 10 months. He will now serve 44 years and 2 months in hard labour.

38.     Bail monies will be refunded to the person who paid bail, upon production of the receipt.

_________________________________

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