N5559
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 878 of 2011

THE STATE

V

THOMAS SAS
(No.2)

Maprik: Geita AJ
2013: July 24, 25, 26

CRIMINAL LAW – Sentence – Three counts of Rape – Mitigation & Aggravation factors – Victim 24 years old juvenile - Section 347 Criminal Code. 

CRIMINAL LAW – Sentence – Trial conducted – totality principle considered – 14 years for first count – Counts 2 & 3 made cumulative - Section 347 Criminal Code – 14 years. 

CRIMINAL LAW – Prisoner sentenced in absentia – s.571 Code invoked- Prisoners conduct of escaping prior to sentence tantamount to waiver of his Constitutional rights - s.37 (5)Constitution 

Cases cited: 

Acting Public Solicitor v Konis Haha [1981] PNGLR 205
Goli Golu v. The State [1979] PNGLR 653
John Aubuku v. The State [1987] PNGLR 267
James Yali v. The State (2006) N2989
John Konobo v. The State (2004) N2500
Mase v The State [1991] PNGLR 88
Nick Teptep v. The State [2004] PGNC 148
Public Prosecutor v Kerua [1985] PNGLR 85 
The State v John Kalabus 1988 PNGLR 193
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 
The State v. Frank Johnston (No 2) (2004) N2586
The State v. Justin Komboli (2005) N2891
The State v. Kenneth Penias [1994] PNGLR 48

Counsel: 

Mr. Francis Popeu, for the State
Mr. Francis Fingu, for the prisoner

DECISION ON SENTENCE

26 July, 2013 

1. GEITA AJ: The prisoner has been found guilty of three counts of rape of a 24 year old girl without her consent contrary to s. 347 (1) of the Criminal Code Act. Subject to subsection (2) the offence attracts a maximum penalty of 15 years. Where an offence under subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to section 19, to imprisonment for life.

INTRODUCTION

2. Trial was conducted during November Maprik circuit in 2012 and part heard due to the circuit coming to an end. Due to circumstances beyond our control the matter was not revisited and completed this month and adjourned for sentence. However on the day of submissions the prisoner failed to appear and directions were given to Correctional Service Commissioner and Police Commissioner through their officers to file a report on the circumstances surrounding the disappearance of the prisoner to this court within one month from today.

3. Having satisfied myself that there were ample precedents abound by use of s.571 of the Criminal Code I proceeded to receive submissions and sentence this prisoner in absentia. I view his conduct of escaping before receiving his sentence as having waived his constitutional right accorded to him under s.37 (5) of the Constitution: Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; The State v. Frank Johnston (No 2) (2004) N2586; John Konobo v. The State (2004) N2500; The State v. Justin Komboli (2005) N2891.
 
BRIEF FACTS 

4. The brief facts as found during trial and conviction on the three counts of rape include: Count 1: That the accused on 15th April 2011 at Kwimbu road junction sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent; Count 2: That the accused on 15th April 2011 at Wingei No 2 village sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent; Count 3: That the accused on 16th April 2011 at Winge No 2 village sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent. 

ANTECEDENTS 

5. The state presented a brief antecedents report on the prisoner with no prior convictions recorded against him. The prisoner is aged 42 years and comes from Wingei No. 2 village in Maprik, East Sepik Province. He is Assemblies of God by faith. He is survived by his mother. He is married with 4 children who are all grown up save for a 9 year old son. He has been a PMV driver for the past 15 years up to the time of his indictment.  

ALLOCATUS 

6. For obvious reasons the allocutus was not administered, a requirement under section 593 of the Criminal Code as the prisoner voluntarily absented himself prior to his sentence. 

MITIGATION

7. The circumstances of mitigation submitted by his Lawyer in relation to this offence are as follows:

1.	No injuries caused to the victim.
2.	First time offender. 
3.	Attempted to pay compensation which was rejected.

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER 

8. Mr. Francis Fingu, counsel for the prisoner referred me to the case of James Yali v. The State (2006) N2989; Presided by Cannings J – Trial – Victim 17 yrs – no weapon used – no physical injuries – no remorse – Sentence to 10 years. He submitted that Count 1 be treated differently with a head sentence of between 7 to 10 years. For Counts 2 and 3 he submitted that a head sentence of 5 years be considered as those rapes were committed within a home environment. Due to the same factual situation he submitted that the sentences be made concurrent. He however concedes that the non appearance of the prisoner underscored all mitigation factors if any.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE 
9. Mr. Popeu for the State invited the Court take into account the fact that the prisoner was found guilty of three counts of rape after trial. There were no mitigation factors available to the prisoner. The prisoner’s family concerns and attempts to pay compensation gives little weight to mitigation in his favour. He submitted that this trial put the state resources and personnel to task in that witnesses were brought to court and that the victim subjected to trauma and relive the horrors of those three rape incidents in open court. Only to find at the end of the day having being found guilty the prisoner disappeared from Maprik police custody.

10. Mr Popeu referred me to the case of the State v Thomas Madi (2004) N2625. In that case the prisoner pleaded not guilty, trial ensued and he was sentenced to 12 years. That victim was abducted from a motor vehicle. He also paid compensation. He submitted that since 2004 sexual offence have escalated in the country with courts imposing near maximum sentences within the range of 12 to 15 years maximum. He agreed that the factual situation were the same with the one victim, although spreading into the next day concurrent sentencing options were preferred as opposed to cumulative. 

SENTENCE TO BE CUMMULATIVE OR CONCURRENT?
11. On the question of what type of sentence I should impose I looked at two cases: Acting Public Solicitor v Konis Haha [1981] PNGLR 205 & followed in Public Prosecutor v Kerua [1985] PNGLR 85.

12. The Supreme Court said in the case of Haha and I quote from the head notes thus:

3)      In deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(i)       Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii)      Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii)     When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

13. It is trite law that maximum punishments are best left for the worst types of cases. (Goli Golu v State [1979] PNGLR and John Kalabus [1988] PNGLR 193. 

SHOULD THE TOTALITY PRINCIPLE BE APPLIED? 
14. Next I remind myself of the totality principle and the dangers inherent therein. Put differently the totality principle requires that when consecutive sentences are imposed, a final review of the sentence be made by the court to ensure that the total is not excessive. In the case of Mase v The State [1991] PNGLR 88 at p 92 the court said this and I quote:

“It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentence is then required to 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 sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.”

15. Applying these principles to this case now before me I consider that the three crimes of rape of the victim were all committed in the cause of a single transaction on the same victim hence attract concurrent punishments. I do not consider the punishment to be excessive and crushing on the victim. I make these observations on the prevalence of such offences and the upward trend in which the National and Supreme Courts have been imposing sentences in rape cases. 

16. In our jurisdiction the Supreme Court case of John Aubuku v. The State [1987] PNGLR 267 is still being used as a yardstick when considering an appropriate sentence to impose in rape cases. Overtime the tariffs recommended therein have become out of date as being inadequate, inappropriate and no longer applicable to the circumstances of the country today. The prevalence of the crime of rape on innocent victims has prompted the courts to seriously review the existing guidelines with a view to increasing sentences. In 2006 Cannings J in the case of The State v. James Yali (2006) N2989 suggested ten years as the starting point after surveying a number of judgments delivered between 2003 and 2005 involving the offences of rape and sexual penetration of a child. 

17. Courts have been very cautious in following this upward trend in tariffs for very good reasons, one of which is the observance of the principle of stare decisis: see Schedule 2.9 of the Constitution. The Supreme Court in the John Ambuku case however acknowledged that rape was a serious offence and could attract immediate custodial sentence except in very exceptional circumstances. 

18. Both the National and Supreme Courts have come out publicly in their judgments condemning the crime of rape and described this evil in society in many ways. Some of those cases have been noted in this decision. However in this instant case I feel obliged to adopt the sentiments expressed by Injia, AJ (as he then was) in The State v. Kenneth Penias [1994] PNGLR 48 as it encapsulates societal need to punish rapists harshly. His Honour stated at p.51 and I quote:

"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 tranquillity, 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."

19. Similar sentiments were expressed by Sevua J as he was than in the case of The State v. Nick Teptep [2004] PGNC 148;N2612. His Honour stated:

"Rape has become a very prevalent violent crime... 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."

 REMARKS
20. The victim was lured into those acts of rape and repeatedly raped over a 24 hour period. The circumstances outlined in this case could be described as cunning and an attack on an innocent victim and her decency. The prisoner's wife and children had left their marital home leaving him behind. When the opportunity presented itself during a rather short period of mobile friendship he with cunning assisted by his friends lured the victim to satisfy his sexual gratification culminated into one act of rape, on 15 April 2011 and two acts of ape on 16 April 2011. 

 SENTENCE

21. Taking all of the circumstances into account, those in the prisoner's favour and those against the prisoner I consider that the appropriate sentence in respect of each offence of rape in this manner. The sentence I therefore impose upon you in this Indictment is as follows:

Count 1. Sentenced to 14 years imprisonment in hard labour.

Count 2. Sentenced to 10 years imprisonment in hard labour to run concurrently with Count 1. 

Count 3. Sentenced to 10 years imprisonment in hard labour to be served concurrently with count 2. 

Sentences accordingly 

Addendum: State application for bench warrant considered and granted.
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused