N4364

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 575 OF 2010

THE STATE

v

CLARENCE TEMA MONGI

Buka: Kariko J
2011: 4, 5 & 17 May

CRIMINAL LAW – SENTENCE – Rape – Guilty plea – Weapon (Bayonet) used – Two victims raped in the presence of each other - One victim suffered cut fingers – Another victim holding a baby when assaulted - Escapee – Prior conviction for wilful murder – Sentencing trends - Need for punitive and deterrent sentences - Concurrent or cumulative sentences – Totality principle.

The prisoner who was awaiting sentence for wilful murder escaped and committed rapes upon two women after forcing them out of their house at night with a bayonet. He was indicted on two counts of aggravated rape.

Held:

1.	The starting point for sentence for an offence under section 347(2) Criminal Code – rape with circumstances of aggravation or "aggravated rape" – is 15 years imprisonment, which may be adjusted upwards or downwards depending on mitigating and aggravating factors as well as extenuating circumstances. 

2.	Guilty plea greatly outweighed by serious aggravating factors.

3.	A lengthy jail sentence is warranted to act as a deterrent (personal and public) and protect the community.

4.	The appropriate sentence for each count of aggravated rape is 20 years imprisonment:

(a)	to be served cumulatively as the offences involved different victims; but

(b)	applying the totality principle, the total sentence reduced from 40 years to 24 years imprisonment.
 
Cases cited:

The State v. Kenneth Penias [1994] PNGLR 48
The State v. Nick Teptep (2004) N2612
John Aubuku v. The State [1987] PNGLR 267
Thomas Waim v. The State (1997) SC519
Lawrence Hindemba v. The State (1998) SC593
The State v. Tomitom (2008) N3301
Solomon v. The State (2007) SC871
The State v. Clarence Tema Mongi (2007) N3259
Mase v. The State [1991] PNGLR 88
Apo v. The State [1988] PNGLR 182
Public Prosecutor v. Sidney Kerua and Billy Kerua [1985] PNGLR 85

Counsel:

Mr F Popeu, for the State
Mr M Yawip, for the Defence

17 May, 2011

SENTENCE

1.	KARIKO J: The prisoner was remanded in custody at the Buka Police Lockup for sentence by the National Court after a conviction for wilful murder when he somehow walked out of the cells on Saturday morning 23 June 2007. During the course of that day he got himself intoxicated with home-brew and sometime between 9 and 10 o'clock in the night, he entered the residential yard of two women Fidelma Lahis (Fidelma) and Helen Eron (Helen) who were then living on their own at the hamlet of Kero on Buka Island. Fidelma 24 years old and single, was staying with her aunt Helen and her young children. After the prisoner arrived in the yard, he saw Fidelma getting up from near the flower garden where she had just relieved herself. He approached from behind, grabbed her and threatened her with a bayonet not to shout or else he would stab her. Fidelma managed to struggle free by grabbing the bayonet with her right hand and pushing it away, and then she ran into her house. 

2.	The prisoner followed her in to the house and found her with Helen who was holding her 1 year old baby. He forced the two women out of the house with the bayonet and marched them to nearby bushes where he forced them to undress and then moved them further to another area amongst banana trees where they were instructed to lay down next to each other facing upwards. He then had sexual intercourse with Fidelma first and then Helen, each against their will. While he had sexual intercourse with each of the victims, he held the bayonet threateningly at the neck of the other as she lay nearby in compliance with his directions.

3.	The prisoner was convicted upon his pleas of guilty to two counts of rape with circumstances of aggravation pursuant to section 347(2) Criminal Code.

Allocatus

4.	On allocatus, the prisoner again admitted to the offences and asked the court to exercise mercy. 

Prisoner's antecedents

5.	The prisoner is aged 26 years, single and comes from Lonahan village, Buka. His parents are alive and he is the last born in a family of seven children. He is a member of the Catholic church. He reached Grade 7 education at Lonahan Primary School in 1999 but did not complete that grade due to difficulties with school fees. Since leaving school, he has never been formally employed. 

6.	He has a criminal record:

(a)	He was convicted for stealing by the District Court in 2000 and fined K100.00; and

(b)	He was then convicted for willful murder by the National Court on 17 July 2006 and sentenced to death on 12 December 2007.

The latter conviction is obviously more relevant and significant in considering sentence for the present matter and I will further refer to it later in this decision.

The law

7.	Rape with circumstances of aggravation under section 347(2) Criminal Code carries a maximum penalty of life imprisonment. 

8.	To clearly reflect the view of the general public that sexual offences are repulsive and contrary to common decency and values and that sexual offenders must be severely punished, legislature enacted stern penalties designed to protect the victims of such offences - women and children and other vulnerable persons. The amendment to section 347 Criminal Code in 2002 introduced two penalty provisions for rape – "rape simpliciter" attracts a maximum penalty of 15 years imprisonment while a maximum of life imprisonment is available for "aggravated rape".

9.	Injia, AJ in The State v. Kenneth Penias [1994] PNGLR 48 at p.51 stated this of rape: 

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 freely alone 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 in 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 tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence.

10.	In The State v. Nick Teptep (2004) N2612, Sevua, J echoed similar sentiments. His Honour remarked:
 
Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society's utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.

11.	I fully endorse these well-expressed statements by their Honours. 

12.	In John Aubuku v. The State [1987] PNGLR 267 the Supreme Court approved sentencing guidelines for rape, and stated that immediate punitive custodial sentence is required unless there are exceptional circumstances. The guidelines recommended sentences between five (5) years for rape in less serious cases of rape to life imprisonment. Since the late 90's, the courts have varied and increased the recommended tariffs, considering them as outdated given the increase in such crimes. See Thomas Waim v. The State (1997) SC519; Lawrence Hindemba v. The State (1998) SC593; and The State v. Nick Teptep (supra). 

13.	In The State v Tomitom (2008) N3301 Kandakasi, J provides a useful discussion on the development of the law and the sentencing trends in rape cases, and observed that sentences for rape has increased in recent years whereby aggravated rape now attracts sentences of over 15 years imprisonment. It appears that in the more serious cases involving gang rapes after abduction of a victim and the use of weapons have incurred sentences of up to 25 years.

14.	I note that in discussing the two penalty provisions for rape, His Honour suggests that "rape simpliciter" attracts a sentence of up to 15 years, while the sentence for an "aggravated rape" should be 15 years upwards. I take the latter part of the proposition to be a reference to a starting point for sentence rather than a minimum sentence. I read His Honour to be saying that by necessary implication, the starting point for sentencing for aggravated rape under section 347(2) Criminal Code is 15 years imprisonment. This would be correct as the provision is clearly not a minimum penalty provision. Sentencing remains a discretionary exercise and depending on various factors, including matters of mitigation, the nature of the aggravating features and any extenuating circumstances, the court may impose a sentence upwards or downwards from the 15 years starting point. 

15.	This appears in line with the decision in Solomon v. The State (2007) SC871 referred to by the prosecution where the prisoner was convicted of 3 counts of aggravated rape – the victim was related and treated like a sex slave by the prisoner over 4 years. The trial court sentenced him to 20 years imprisonment on each count but the Supreme Court considered this excessive and reduced the sentence on each count to 8 years to be served consecutively – a total sentence of 24 years imprisonment. In arriving at the substituted sentence the Supreme Court had regard to sentences for the more serious cases of sexual penetration of children aged between 13 and 15 years of age, which range up to 20 years imprisonment. 

Considerations on sentence

16.	The only factor in the prisoner's favour is his guilty plea but this pales significantly in weight when balanced against the following aggravating features of the offences:

(a)	The prisoner had a prior conviction for willful murder, one of the most serious crimes under the Criminal Code and for which he was awaiting sentence when he committed the rapes. The National court convicted him just 11 months earlier. The brief facts of that conviction are that the prisoner strangled a 7 year old girl to death after he punched her unconscious. After killing her, he indecently dealt with her before he sodomized her. Sevua J who heard the case, considered the appropriate sentence to be the maximum allowed, the death penalty. See The State v Clarence Tema Mongi (2007) N3259. It appears the prisoner did not consider the death penalty a deterrent even though he indicated through counsel that he wishes to appeal against it. He obviously did not care for the harshest penalty that this court can impose.

(b)	The prisoner was an escapee when he committed the rapes. Counsels were unable to properly advise the court on the circumstances surrounding the prisoner walking out of police custody but in his own words, the prisoner said he only went out "for the weekend". He was remanded in custody under the order of the National Court which had neither been set aside nor varied. After conviction in July 2006, he was remanded for sentence. He escaped and committed the rapes in June 2007 and was arrested and placed back in custody before the sentence was delivered in December 2007. 

(c)	To achieve his twisted sexual desires, the prisoner applied a crude and dangerous weapon, a bayonet, with which he menacingly and determinedly threatened his victims into submission. 

(d)	The prisoner set about that day to get inebriated with alcohol (home-brew). He was determined to get drunk. He acknowledged in his record of interview that he knew he was on remand for his previous crime but he started drinking that Saturday morning because he just wanted to drink. His intoxication which he brought on himself and which knew would impair his right-thinking is not an excuse for the offences and does not constitute a mitigating factor; See Mase v. The State [1991] PNGLR 88 per Kidu CJ and Amet J at 88 and Apo v. The State [1988] PNGLR 182 per Kapi DCJ at 183. Rather, I view his drunkenness as an aggravating factor because he was determined to get drunk knowing the effect it would have on him. 

(e)	The perverted mind of the prisoner was further demonstrated by firstly subjecting each of the victims to the indignity of being sexually violated and humiliated in the presence and view of the other. Further, I consider as animalistic his violation of Helen without a sign of care for the young baby she was still cuddling tight.

(f)	The offences were committed in the dark of the night after an invasion of the private sanctuary of the victims' home where they had lived alone in a "safe environment". People have the right to enjoy the quiet, peace and security of their homes and not to be intruded upon and violated. 

(g)	In the course of his pursuit and attack on the victims, Fidelma had her right fingers cut when she initially escaped his clutches. Photographs taken after the incident show a fully bandaged right hand. The wounds may have healed but the scars remain.

(h)	The victims suffered a great deal at the hands of the prisoner that Saturday night. I have no doubt that for the rest of their lives, the ugly memories of the terrifying ordeal they were subjected to, will linger in their minds. The terrible experiences have and will have negative psychological impact on them but I would sincerely hope that they get the strength and support of their families to overcome these. 

17.	All the aggravating features amply show that the prisoner is a dangerous person with a very sick mind. Although there is no medical opinion to support this conclusion, my view is based simply on his perverted conduct in this case plus the grossly indecent act of sexually penetrating a young corpse in the previous case which suggests he may well be a necrophiliac. 

18.	Crimes of sexual violence warrant severe custodial sentences to punish the offender and act as a deterrent (both personal and public). It is clear that the prisoner is a person likely to re-offend and this court therefore has the duty, subject to the limitations under law, to incarcerate him with a longer jail term to protect the public. 

Sentence

19.	In all the circumstances, I consider the appropriate sentence to be 20 years imprisonment on each count of aggravated rape. 

20.	Should the sentences be concurrent or cumulative? The two counts involve different sexual victims. In Public Prosecutor v Sidney Kerua and Billy Kerua [1985] PNGLR 85 at 90-91 the Supreme Court referred with approval to the proposition from DA Thomas in his book Principles of Sentencing (2nd edn.) that sentences in respect of offences against different victims should be served cumulatively.

21.	The total sentence is therefore 40 years imprisonment. Applying the totality principle, is this combined sentence appropriate for the total criminal behaviour of the prisoner? See Mase v The State (supra). A relevant consideration is that the total sentence should not be substantially above the normal sentence for the more serious of the offences. I earlier noted that the more serious cases of aggravated rape including gang rapes, abduction of a victim and the use of weapons have invited sentences of up to 25 years. The total sentence of 40 years imprisonment in the present matter therefore seems excessive. I reduce the sentence on each count from 20 years to 12 years imprisonment to be served cumulatively, giving a total jail term of 24 years which I consider appropriate. The sentences shall be served in hard labour. 

22.	I order that the prisoner be remanded at the Buka Police Lock up from where he shall be transferred within 21 days to the Bomana Major Corrective Institution, National Capital District. I note that for the wilful murder conviction, the sentencing judge ordered in terms of section 597 Criminal Code for the prisoner to return to his former custody and then transferred to Bomana within 21 days but His Honour later revoked the order because of the then pending rape charges. Now that these charges have been dealt with, the order by Sevua J pursuant to section 597 Criminal Code is effectively reinstated.

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