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State v Tomitom [2008] PGNC 26; N3301 (21 February 2008)

N3301

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 614 of 2007

THE STATE

-V-

JOE KANAU TOMITOM

Buka: Kandakasi, J.
2008: 13 & 21 February

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Rape – Rape of a relative – Breach of trust – No weapons used – No injuries or other aggravating factors – Guilty plea – First time offender – Prevalence of offence – Parliament amending law – Effect of – Sentence of 15 years imposed - Section 347 of Criminal Code.

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 Donald Angavia, Paulus Moi and Clement Samoka (No 2)
(29/04/04) N2590
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
Public Prosecutor v. Don Hale, (1998) SC564
Re Application by Anderson Agiru (08/10/01) SC671
Avia Aihi v. The State [1981] PNGLR 81
Tau Jim Anis & Ors. v. The State, (25/05/00) SC642
The State v. Irox Winston, (13/03/03) N2347
The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588
The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 25/03/04) N2567
The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) N2543
The State v Luke Sitban (No 2) (2004) N2566
The State v Henry Nandiro (No 2) (2004) N2668
The State v Dibol Petrus Kopal (2004) N2778
Rudy Yekat v. The State (22/11/00) SC665

Counsel:

D. Mark, for the State.
P. Kaluwin, for the Accused.

21 February, 2008

1. KANDAKASI J: You pleaded guilty to a charge of rape of a female on 5 January 2006 at Kagumaru village contrary to s.347 of the Criminal Code. The only issue for me to decide is what is an appropriate punishment for the offence you committed?

Relevant Facts

2. The relevant facts are these. On 5 January 2006, at about 8:00 pm, you and another person accompanied the victim of your offence, a female who is named but I will only identify her with the initials SK and another female. As you were on the way, the other female and your other male friend walked into the nearby bush. This left you and your victim alone. You were drunk at the time too and you turned on your victim who is related to you through marriage. You forced her to remove her clothes and then you proceeded to have sexual intercourse with her, against her will. The State has not alleged that you caused the victim any physical injuries although psychologically she would have been traumatized. The State has also not alleged the use of any weapon or anything like that to threaten or actually use it against your victim to secure your rape of her. No other aggravating features have been alleged or established against you by the State.

The Offence and Sentencing Trend

3. Section 347 of the Criminal Code, creates and prescribes the offence of rape. That provision reads as follows:

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

Penalty: Subject to Subsection (2), 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."

4. Obviously, Parliament, in my view, considered the offence of rape very serious and decided to prohibit it. It did so by enacting s. 347 of the Criminal Code and prescribed the maximum penalty of life imprisonment. A number of Supreme Court decisions like that of John Aubuku v. The State [1987] PNGLR 267, have set and elaborated on the relevant sentencing guidelines in this kind of cases. These cases make it clear that, the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape in less serious cases of rape to life imprisonment. In the lower end are cases with no aggravating factors while those on the higher end, have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.
   
5. Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State (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."

6. Almost a year after the decision, in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. The Court in that case, surveyed some of the cases decided up to the date of the judgment and said:

"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."

7. The Supreme Court in arriving at that decision found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. It also found that the offence was committed in the presence of the victim’s schoolmates who ran away.

8. In a number of my own decisions as in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590, I observed that, since the decision in the above case in 1998, there has been an increase in the commission of the offence. The society has therefore been calling for increases in the kind of penalties imposed. I responded to that call by imposing a sentence of 17 years, for a rape of a young pupil in breach of a de factor trust with some violence and threats of violence after a trial. That was in The State v. Eddie Peter (No 2) (12/10/01) N2297, 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. I also noted that what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case.

9. I further noted that, since the pronouncement of the various sentences in rape case up to 2004, there has never been a decline in number of rape and other sexual offence. I attributed this increase in part to the kind of the sentences imposed up to then, and observed that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. In view of that, I expressed the view that the courts have to seriously examine the kind of sentences imposed to date, thereby repeating what the Supreme Court said in Lawrence Hindemba v. The State (supra. I then observed that the kind of sentences that have been imposed, since even Lawrence Hindemba’s case, 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 the Courts have issued numerous warnings of increases in the sentences, they have failed to follow that through with appropriate sentences, except for Justice Sevua, who in my view, tried to meaningfully review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra) and imposed varying sentences with the maximum at 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."

10. 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 as per John Aubuku’s (supra) and are yet to impose the maximum prescribed penalty of life, except in one case, which I will shortly mention. In the meantime, this serious offence against society is on the increase. In the circumstances, I expressed the view that it is:

"...[I]nappropriate 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."

11. Bearing these in mind, I decided to impose the term of 17 years as an appropriate pronouncement against the offence in that case. I 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.

12. Since my judgment in The State v. Eddie Peter (No.2) (supra), there has been no significant increase in the sentences by the National Court. The only exception to that is the judgment by the late Jalina J in The State v. Kunija Osake (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 an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

13. The only case that has imposed the maximum prescribed sentence of life imprisonment is Salika J., which went on appeal to Supreme Court. In that case, the Supreme Court delivered a judgment, which is one of the latest judgments of the Supreme Court on abduction and rape. The judgment is in circulation as The State v. Ian Napoleon Setep (18/05/01) SC666. That was a case of gang abduction and raped at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant’s 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 (supra). At the same time, it accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment.

14. I then expressed the view that the two National Court judgments cited above do in fact progressively increase the sentences in rape cases. I also noted that 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. I went on to say that whilst, I agree that public outcries against lenient sentences, a sentencing judge should nevertheless note that, this is an indication and response by the community to the kind of sentences imposed. The sentencing power the sentencing judges, exercise is a power that belongs to the community and as such they should respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases.
    
15. I gave a number of reasons for the views I expressed. These reasons are 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. In that regard, I note what the Supreme Court in Public Prosecutor v. Don Hale, (1998) SC564, as relevant. There, the Supreme Court said:
    

"The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered."

16. I noted that these principles, in my view, acknowledges in a more practical way and allows for an exercise at least in that limited way, by the people themselves their judicial power. The Constitution does acknowledge and affirms in s. 158(1) and elsewhere that the judicial power that the courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

17. Further, I noted that, in subsequent judgments of Supreme Court, as in Tau Jim Anis & Ors. v. The State, (25/05/00) SC642, these principles have been cited with approval. Many other judgments of both the Supreme and the National Courts have adopted and applied these principles. Some of these are my own judgments as in The State v. Irox Winston, (13/03/03) N2347, where I said:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

18. Bearing this in mind, I imposed a sentence of 15 years on a guilty plea by an adult male offender in aggravating circumstances. That was in the cases of The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588. In that case, the offender, a mature single man related to the victim, abducted and raped a married woman in the presence of two of the victim’s small children. The offence was committed in a breach of trust situation.

19. On the same day, I imposed a sentence of 13 years after a short trial against a young first time offender who raped his niece. Apart from the breach of trust as a close relative, there were no other aggravating factors. That was in The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 25/03/04) N2567.

20. Again, on the same day, in The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) N2543, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively to a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences where given in view of the different roles each of the offenders played and their ages.
    
21. Finally, in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) case, I noted all of the foregoing and went on to note that, given the numerous calls for stiffer penalties throughout the country, Parliament intervened with amendments to the Criminal Code in the year 2002, reworded s. 347 in the way it is presently. Previously, it did not distinguish between rape with aggravation and those without aggravation with acts of simple rape having a maximum sentence of up to 15 years whilst aggravated rape having a maximum sentence of up to life imprisonment. I took the view that, this change in the law meant that:
    

"... where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because it makes no difference between the previous position and the new provisions."

22. In The State v Luke Sitban (No 2) (2004) N2566 and The State v Henry Nandiro (No 2) (2004) N2668, I followed the approach in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra). Justice Lay did likewise in his decision in The State v Dibol Petrus Kopal (2004) N2778. Cannings J referred to these cases and endorsed the first part of what I said in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) and refrained from making any comment in relation to the second part.
    
23. Neither your lawyer nor that of the State took me through the above development of the law. Indeed, your lawyer did not draw to my attention any case that might be of assistance to the Court. The State did refer to at least three cases including the decision of the Supreme Court in Rudy Yekat v. The State (22/11/00) SC665 (per Jalina, Kirriwom and Kandakasi JJ). In that case, the Supreme Court confirmed a sentence of 8 years imposed by the Supreme Court for a rape of a married woman on a guilty plea. The offender used a bush knife to threaten and secure the rape of the victim. In dismissing the appeal, the Supreme Court said:
    

"We fail to find how the learnt trial judge erred in his judgment and the decision to impose the 8 years sentence. Indeed, the sentencing trend in this sort of cases is on the increase since the Aubuku case as shown above. This is reflective of the fact that the crime of rape is on the increase and the sentences imposed by the courts appear not to be deterring would be offenders from committing such offences. Society is becoming unsafe for our women and girls because of offenders like the Appellant. The Appellant is very fortunate to have, in our view received the sentence of 8 years which is light.

This Court does have the power under s.23(4) of the Supreme Court Act (Ch. 37) to increase the sentence as was done in the case of Lawrence Hindemba v. The State (supra). However, this Court was not asked to exercise that power, correctly through a cross appeal on sentence by the State. Instead this Court has been asked to dismiss the appeal and confirm the sentence. Accordingly, for these reasons, the appeal is dismissed and the sentence of 8 years is confirmed."

24. It is obvious on proper consideration of the above development of the law and the sentencing trend, sentences for rape has increased. Aggravated rape has attracted sentences beyond the 15 years mark. Only those with no aggravating features have received sentence below 15 years as the 14 years imposed in The State v Dibol Petrus Kopal (supra) because of the prevalence of the offence.
    

Sentence in Your Case

14. With the development of the law and sentencing trend for the offence of rape in mind, I turn to a consideration of an appropriate sentence for you. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you as well as your personal background as outlined by your lawyer.

15. I note that you are an adult male married with 5 children. You come from Kugumaru village, Buin District, Autonomous Region of Bougainville. You have reached grade 6 primary education and have not gone beyond that. You lead a village subsistence style dwelling and therefore have no formal employment. By way of religion, you belong to the Catholic Church.

15. Turning now to a consideration of the factors for and against you, I note first the factors in your favour. The first factor in your favour is that your conviction was on your guilty plea. That saved the State the time and money it could have spent on running a trial. It also spared the victim of the shame and trouble you could have put her through to testify against you. I note in particular that you pleaded guilty to the commission of the offence when the State did not have its witnesses ready to testify against you.

16. Secondly, I note that, this is your first ever conviction. That means, until the commission of the offence for which you are in Court, you have been a good law abiding citizen. All of that has now been tarnished by your own senseless conduct against a person who is related to you through marriage.

17. Thirdly, you did say sorry in your allocatus for what you have done, appreciating that it was wrong to commit the offence in the way you did. This is consistent with your guilty plea in the particular circumstances of your case, which is quite unusual. It clearly demonstrates your preparedness to accept responsibility for your offence rather than look for ways and means to escape responsibility

18. Finally, I note that you did not use any dangerous weapon such as a gun, bush knife or an axe or anything like that to secure your rape of your own sister-in-law. The absence of the use of such weapons usually operates in favour of an offender.

19. Against the above factors in your favour, there are some serious factors against you. First, you committed the offence not against a total stranger but your own sister-in-law. You therefore breached the trust she placed in you as her brother-in-law. People in that kind of relationship do not expect this kind of offences to be committed against them but you did. The law says that a person who commits an offence in breach of a trust relationship may be given a sentence above one that is imposed against someone who commits the similar offence but not in breach of trust. This is because trusting someone is a serious matter as it is that which builds and maintains good relations and societies.
    
20. Secondly, you committed an offence that is prevalent. It is the prevalence of this offence not only in PNG but almost the world over that has caused Parliament to amend the laws relating to sexual offences especially against women, girls and small children by increasing the penalties and making it quite easier to secure convictions against offenders. This is necessary because children, young girls and women in our society need the protection of everyone in the society. They have been repeatedly violated and treated by some only as mere sex objects as if they have no human dignity and a right to life and a right to live in our various societies. The Courts have followed Parliament’s wish and have imposed higher penalties compared to what they used to impose prior to the change in the law.
    
21. Finally, I note that you violated the victim’s right as a person. You showed no respect for her as a person, let alone as your sister-in-law. Under our Constitution every person, male or female are equal and guaranteed freedom and a right to life and exist as human being. They are guaranteed the full protection of the law. It is this therefore against the norms of a civilized and rational human society such as ours for one like you to step and commit the kind of offence you committed against your own sister-in-law.
    
22. In addition, I note that you acted under the influence of alcohol. If you were normal, you may or may not have committed this offence in the way you did. Nevertheless, acting under the influence of alcohol is no excuse and a defence to the commission of any offence. This is because a person chooses to get drunk and become disorderly. Getting drunk and becoming disorderly is a criminal conduct prohibited by law. Hence the commission of one offence or wrong does not excuse the commission of another offence. Usually, the commission of another offence is taken as a factor in aggravation more than a mitigating factor.
    
22. Carefully considering all of the foregoing, I note that the factors in your mitigation caused me to consider imposing a sentence lower than the ones I have imposed in similar cases before. This is particularly so in view of you pleading guilty to the charge at a time when the State was not ready with its witnesses to prove the charge against you, whilst not discounting the seriousness of the offence you committed. Doing the best I can in the circumstances in terms of weighing the factors against you, I consider a sentence of 10 years appropriate and I impose it. Of that sentence, I order a deduction of your pre-trial custody period of 9 months 2 weeks. This will leave you with the balance of 9 years 2 months and 2 weeks. I order that you serve that in hard labour at a Correction Service facility here in Autonomous Region of Bougainville or at the Kerevat Correction Service in the East New Britain Province. A warrant of commitment in those terms shall be issued forthwith.
    

_________________________

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