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State v Omba (No. 2) [2011] PGNC 320; N4250 (13 April 2011)

N4250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1243 OF 2008

THE STATE

V

KAPIL OMBA
(No 2)

Mount Hagen: Makail, J
2011: 08th & 13th April

CRIMINAL LAW - Sentence - Rape - Circumstances of aggravation - Pack rape - Use of weapons - Victim abducted during raid of village - Injuries sustained by victim - Conviction after trial - Long custodial sentence appropriate - Sentence of 18 years imprisonment imposed - Suspension inappropriate - Criminal Code, Ch 262 - Sections 19, 347 & 571(1)(b).

Cases cited:

Ure Hane -v- The State [1984] PNGLR 105
The State -v- Ilam Peter (2006) N3090
The State -v- Flotyme Sina (No 2) (2004) N2541
Ian Napoleon Setep -v- The State (2001) SC666
The State -v- Dii Gideon (2002) N2335
The State -v- Eki Kondi & 4 ors (No 2) (2004) N2543
The State -v- Gary Sasoropa & 2 Ors (No 2) (2004) N2569
The State -v- Donald Poni (2004) N2663
The State -v- Henry Nandiro (2004) N2668
The State -v- James Mora Meaoa [1996] PNGLR 280
Thomas Waim -v- The State (1997) SC519
The State -v- Eddie Peter (2001) N2297
The State -v- Kemou Kumou (2004) N2684
The State -v- Luke Sitban (No 2) (2005) N2566
The State -v- Moses Jafisa Winga (No 2) (2005) N2958
The State -v- Sou Mesak, Lavuvat Rereke & Billy Turmur (NO 3) (2009) N3907
The State -v- Kenneth Penias [1994] PNGLR 48

Counsel:

Mr J Waine, for the State
Mr C Kos, for the Prisoner

SENTENCE

13th April, 2011

1. MAKAIL, J: The prisoner was convicted following a trial on one count of rape of one Dorin Dickson in the early hours of the morning of 31st August 2007 at Kalanga village in the North Waghi District of the Western Highlands Province under section 347 of the Criminal Code, Ch 262. At the time of decision on verdict, he failed to appear and the decision was handed down in his absence pursuant to section 571(1)(b) of the Criminal Code, Ch 262.

2. Following the decision on verdict, a warrant of arrest was issued by the Court for his immediate arrest and detention. When the matter came up for addresses on sentence, he was yet to be apprehended. This has rendered the continuance of the proceeding in his presence impracticable. On the State's application, I ordered the hearing to proceed in his absence pursuant to section 571(1)(b) of the Criminal Code, Ch 262. This is my decision on sentence.

BRIEF FACTS

3. On 31st August 2007, at about five o'clock in the morning, the prisoner and his tribesmen raided a village called Bunowou near Banz station of the Western Highlands Province. The prisoner and his tribesmen were armed with shot guns and bush knives. They surrounded the house in which the victim and other occupants were in and broke down the door. They went in and threatened the victim and other occupants. They forced the victim out of the house and took her to the main road. As they went further up the road, they cut her clothes with bush knives and when they were some distance away from the house, they forced her onto the ground and sexually penetrated her without her consent. There were six men who sexually penetrated her and the prisoner was the fifth person.

THE LAW

4. Rape is an offence under section 347 of the Criminal Code, Ch 262. It states:

"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 (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."

5. It carries a maximum penalty of life imprisonment if it is committed in circumstances of aggravation. The maximum penalty is usually reserved for the worst case under consideration. This is because the Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser penalty: see Ure Hane -v- The State [1984] PNGLR 105.

PRISONER'S SUBMISSIONS

6. In his address to the Court, counsel for the prisoner submitted the prisoner is about 60 years old and comes from Kalanga village in Banz District in the Western Highlands Province. He is a village elder and was employed by Kimil Health Centre as an ambulance driver for the last 10 years. He is a member of the Roman Catholic church and is married to two wives with 6 children between them. He has no formal education but is a village leader.

7. In submissions in mitigation, counsel submitted the prisoner is a first offender and this was a one off case of rape. There is no direct evidence establishing he used an offensive weapon to procure the commission of the offence although he was in the company of five men and they were armed with bush knives. The victim did not sustain any permanent physical injuries and there is no evidence that she suffered any permanent mental disabilities. There is no evidence she was infected with any sexually transmitted disease or HIV Aids. Very importantly, there is no relationship of trust, dependency or authority between the prisoner and the victim.

8. There was no pre-planning. It was a spontaneous act as while the men raided Bunowou village, they came across the victim and took the opportunity to rape her. She was not subjected to further acts of sexual penetration or indignities. There was presence of de-facto provocation because the raid which led to the rape of the victim was a result of Bunowou village peoples' failure to pay compensation to the relatives of a deceased person. The prisoner is of good character. He is a respected leader in the community and is not a sexual predator. On 29th October 2007, he was arrested in Mt Hagen when he came to discuss the rape incident with the police and was charged. He was subsequently released on bail and on 14th December 2007, was committed to stand trial in the National Court.

9. His counsel submitted this is not a worst case of rape which would attract the maximum penalty of life imprisonment although he conceded it was a pack rape case. He referred to the case of The State -v- Ilam Peter (2006) N3090 and submitted, in that case, Lay, J applied 15 years imprisonment as the starting point and depending on the aggravating and mitigating factors, the Court may increase or decrease it. He asked the Court to use 15 years as the starting point.

10. He then referred to the cases of The State -v- Flotyme Sina (No 2) (2004) N2541, Ian Napoleon Setep -v- The State (2001) SC666, The State -v- Dii Gideon (2002) N2335, The State -v- Eki Kondi & 4 ors (No 2) (2004) N2543, The State -v- Gary Sasoropa & 2 Ors (No 2) (2004) N2569, The State -v- Donald Poni (2004) N2663 and The State -v- Henry Nandiro (2004) N2668 and submitted, these cases show that in a pack rape case where offensive weapons were used, the Courts have gradually increased the sentences and the sentences ranged from 15 years to 25 years imprisonment.

11. For the prisoner's case, he submitted a sentence of 14 years imprisonment with a quarter of it suspended would be a fair and appropriate sentence in the circumstances.

STATE'S SUBMISSIONS

12. Counsel for the State argued this was a serious case of rape because a number of circumstances of aggravation were present. First and foremost, the prisoner contested the charge. The State was forced to call the witnesses including the victim to testify against him. The victim had to re-live the bad memories of the ordeal. Further, the State had to spent money to bring the witnesses to testify against him. Secondly, the prisoner was one of six men who raped the victim. It was a pack rape. Thirdly, the victim was abducted from her aunt's house in the early hours of the morning and taken to a place far from the village and raped.
Fourthly, weapons were used.

13. In this case, the men were armed with bush knives and it does not matter if the prisoner was not armed because he was a principal offender by virtue of section 7 of the Criminal Code, Ch 262. Fifthly, the victim was a young girl of 16 years old. The sixth aggravating feature was that, there was threat of violence made against the victim. The seventh aggravating feature of this case was that, given the prisoner's absence, no offer of apology has been made and there was no indication that the prisoner made compensation to the victim.

14. He referred to the cases of The State -v- James Mora Meaoa [1996] PNGLR 280, Thomas Waim -v- The State (1997) SC519, The State -v- Eddie Peter (2001) N2297 and The State -v- Kemou Kumou (2004) N2684 and submitted that these cases generally established that sentencing tariff for rape cases whether pack or otherwise have increased. At the time James Mora Meaoa's case (supra) was decided, the sentences for rape were under 15 years imprisonment. In recent times, the Courts have imposed sentences between 18 and 25 years imprisonment. This was an indication the judges were now fully aware of the prevalence of the offence and the need to combat it. For these reasons, he submitted the Court should impose a sentence between 18 and 25 years imprisonment in this case.

CONSIDERATION OF CASE

15. I have considered the submissions of both counsel and also the personal details of the prisoner and I agree with Mr Waine's submission the sentencing tariff for rape cases have increased. This is because rape cases have been on the rise and the sentences that have been imposed by the Courts have been outdated. Although the Supreme Court decision in Thomas Waim's case (supra) decided against quantum leap in sentences in pack rape cases, it seems the Courts have eventually come to accept that there is a need to increase sentences to combat the prevalence of the offence be it pack or otherwise.

16. Examples of rape cases where the Court has increased sentences are Eddie Peter (supra), where Kandakasi, J imposed a sentence of 17 years imprisonment on the prisoner for rape of his niece who was doing Grade 9 and in Kemou Kumou (supra), where Kandakasi, J imposed 17 years imprisonment on the prisoner for rape of a 16 years old girl. Both of these cases were not a pack rape cases.

17. In the present case, there are present a number of circumstances of aggravation which Mr Waine has correctly pointed out in his submissions. However, I will follow the decision of Lay, J in Ilam Peter's case (supra) by applying 15 years imprisonment as the starting point and increase or decrease it depending on the presence of circumstances of aggravation and mitigation.

18. I accept Mr Waine's submission this was a case of pack rape as the prisoner was one of the six men who sexually penetrated the victim that morning. The men were armed with bush knives and abducted her from aunt's house during the raid of the village. They took her away from the house and at a place somewhere near Kalanga, they took turns in raping her. Even though it is true that the prisoner is a first offender and has a family to care for, I am of the view that presence of the aggravating features makes this case serious.

19. I reject the suggestion that there was presence of de-facto provocation. If the prisoner and his people felt that the Bonowou people had let them down when they failed to pay compensation to the relatives of the deceased person, this does not give them any right to raid Bonowou village and rape the victim. There are better ways of settling the dispute and not by violence.

20. I am also of the view his claim of high standing and respect in the community has very little impact on the gravity of the offence given that the victim was abducted against her will with threats of violence during the raid and taken to a secluded location where she was raped by six men. In my view, the circumstances giving rise to the commission of the offence was gruesome and the prisoner can be best described as a sexual predator because he seized the opportunity to rape the victim even though he had the opportunity to stop himself and others from raping her.

21. This calls for a sentence of between 15 and 25 years imprisonment because in a number of past cases, the National Court has imposed sentences within this range. In Henry Nandiro (No 2)'s case (supra), Kandakasi, J sentenced the prisoner following a trial to 20 years imprisonment. It was a case where a 20 years old victim was abducted and raped by the prisoner. The prisoner and his gang were armed with weapons.

22. Another case was The State -v- Luke Sitban (No 2) (2005) N2566. It was a case of an adult raping a schoolgirl. He used no weapons and he was convicted after a trial. There was also no evidence of any physical injury to the victim. The sentence imposed was 17 years imprisonment. In The State -v- Moses Jafisa Winga (No 2) (2005) N2958, Kandakasi, J imposed a sentence of 38 years imprisonment in total for two counts of rape by the prisoner on his daughter. The Court imposed 19 years imprisonment for each count.

23. Lenalia, J imposed a sentence of 18 years imprisonment on the prisoner Lavuvat Rereke in The State -v- Sou Mesak, Lavuvat Rereke & Billy Turmur (No 3) (2009) N3907 after he was found guilty of committing rape of a young girl after Sou Mesak pulled her into a secluded place and raped her. The prisoner arrived at the scene and was the second person to rape her followed by Billy Turmur.

24. In Ian Napolean Setep's case (supra), the Court reduced a sentence of life imprisonment to 25 years imprisonment. In that case, the prisoner and a group of men held the victim at gun point and raped her. She was repeatedly raped at various locations and finally at a house where she was introduced as the prisoner's wife. In Dii Gideon's case (supra), the prisoner was sentenced to 25 years imprisonment for rape of an overseas' visitor. It was a pack rape case. In another case of Eki Kondi & 4 ors (No 2)'s case (supra), the Court sentenced the prisoners to 18 years, 20 years, 22 years, 25 years imprisonment for pack rape of a victim in broad day light. They abducted her at a logging base camp in the bush of Vanimo and took her away where they took turns to rape her. There was use of offensive weapons to procure the commission of the offence.

25. The case of Gary Sasoropa & 2 Ors (No 2) (supra) was a case of gang rape of a girlfriend and relative. She was repeatedly raped by the prisoners. It was a trial matter and the Court sentenced the three prisoners to between 22 and 25 years imprisonment depending on their age while Donald Poni's case (supra) was another of those rape cases where the prisoner used an offensive weapon to hold up the victim and raped her. He was sentenced to 19 years imprisonment. The Henry Nandiro's case (supra) was another pack rape case involving a 14 years old girl. It was a trial matter. The Court sentenced the prisoner to 20 years imprisonment.

26. I find the present case similar to Henry Nandiro's case (supra), because the victims are almost of the same age. The victim in this case is 16 years old and the victim in Henry Nandiro's case (supra) was 14 years old. Both were pack rape cases and offensive weapons were used. The pack rape occurred in a village setting and both victims were abducted from their homes in the early hours of the morning. In both cases, the prisoners contested the charge and were convicted after a trial. The only difference is the age of the prisoners. The prisoner in this case is about 60 years old and the prisoner in the other case was 24 years old. There is a difference of 36 years between them. As the prisoner is of old age, I take it into account as a strong mitigating factor where a sentence higher than 20 years imprisonment may not be appropriate.

27. However, I also find this case similar to the case of Luke Sitban (No 2) (supra) where the victims in both cases are schoolgirls and both prisoners were convicted after a trial although in Luke Sitban's case (supra), the prisoner used no weapon and there was no evidence of any physical injury to the victim. In the present case, the medical report by Dr James Redcliffe dated 31st August 2007 (exhibit "P1") established the victim suffered a tear, swelling and blood to her vagina, although there is no further evidence of permanent physical disability. This makes this case serious than Luke Sitban's case (supra) and a sentence slightly higher than 17 years imprisonment that was imposed in Luke Sitban's case (supra) is appropriate.

28. I also distinguished this case from Moses Jafisa Winga (No 2)'s case (supra) because there is no relationship of trust, authority and dependency between the prisoner and the victim unlike the above case where there was one because the prisoner raped his own daughter. Therefore, a sentence less than 19 years imprisonment is appropriate in this case as opposed to the sentence of 19 years imprisonment imposed in the above case for each count.

29. I find this case almost identical to the case of Sou Mesak, Lavut Rereke & Billy Turmur (No 3) (supra) where the three prisoners took turns in raping a young girl at a secluded location although no weapons were used to secure her submission. They were each sentenced to 18 years imprisonment.

30. I also take into account in mitigation the absence of any permanent physical injuries, absence of sexually transmitted disease or HIV Aids, no pre-planning and no further acts of sexual penetration or indignities against the victim, and weighing them against the aggravating features mentioned earlier, I consider a long custodial sentence is appropriate in the circumstances. This is to punish the prisoner and any other like-minded persons and to make them understand that women have equal rights as men and must be respected and fairly treated. As Injia, J (as he then was) said in The State -v- Kenneth Penias [1994] PNGLR 48 at 51:

"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."

31. Accordingly, the prisoner is sentenced to 18 years imprisonment. With respect to his plea for a quarter of the head sentence to be suspended with conditions, I must agree with Mr Waine's submission that in pack rape cases, very rarely the Courts have partly or wholly suspended sentences. If the sentence is suspended, there are usually very strong mitigating factors. In the present case, I am not satisfied the old age of the prisoner is sufficiently strong to support a partly suspended sentence. On the other hand, I have taken his old age into account in the sentence of 18 years imprisonment.

CONCLUSION

In the end, the prisoner is sentenced to 18 years imprisonment less time spent in custody prior to bail. His bail monies shall be refunded forthwith.

Sentence accordingly.
_____________________________________
Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner