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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1041 & 1007 Of 2010
THE STATE
V
FRANCIS KAVUN
And
ROBIN ANDOLU
Wewak: Geita AJ
2012: 13 – 15 August
2013: 14 March
CRIMINAL LAW – sentence –gang rape –repeat rape-guilty plea – victim is an aunt – crime committed in victim’s room – room initially closed and forced open – curtailment of partial custodial sentence considered inappropriate-10 years imprisonment in hard labour – 347 (1) Criminal Code.
Cases cited:
Avia Aihi v. The State (No.3) [1982] PNGLR 653
Angaiva No. 2 v. The State [2004] PGNC 184
Alphonse Apou Dioro v. The State [[2003] PGNC 74; N2431
Francis Tachik vs The State (No.2) 27 February 2013, (Unnumbered)
Goli Golu v. The State [1979] PNGLR 653
John Aubuku v. The State [1987] PNGLR 267
James Yali v. The State (2006) N2989
Kondi No.2 v. The State [2004] PGNC 226; N2543
Kenneth Penias v. The State [1994] PNGLR 48
Nick Teptep v. The State [2004] PGNC 148; N2612
Nandiro No. 2 v. The State [2004] PGNC 101
Poni v. The State [2004] PGNC 116; N2663
Saperus Yalibakut v.The State (2006) SC890
Setep v.The State [2001] PGNC 14; SC666
Ure Hane v. The State [1984] PNGLR 105 14
Counsel:
Mr. Anthony Kupmian, for the State.
Mr. Johnson Malambaul, for the accused.
DECISION ON SENTENCE
14 March, 2013
1. GEITA AJ: The prisoner Francis Kavun aged 26 years comes from Kandinge village in East Sepik Province. He was charged for rape of a married women on 23 April 2010, without her consent contrary to s.347 (1) of the Criminal Code.
2. The facts reveal that the prisoner was in company of other youths who broke into the victims dwelling house , and pack raped the victim armed with a weapon, that is a gun, and an iron bar. The prisoner and one other youth were initially charged with eleven (11) counts of various sexual offences of sexual penetration and one (1) count of doing grievously bodily harm to the victim.
3. The facts are detailed as follows. Upon State presentation of 12 counts on indictment on the accused for rape and grievous bodily harm on the victim he pleaded not guilty, however upon a partial successful notice of motion by his lawyer to quash indictment, the state settled only on one count of sexual penetration. To this the prisoner changed his initial not guilty plea to that of guilty. A provisional acceptance of the plea was recorded. His plea according to his lawyer was consistent with instructions. Having satisfied myself on reading the depositions that the evidence does support the charge, I accepted the accused’s guilty plea and recorded a conviction.
4. The co- accused Robin Andolu pleaded not guilty. Since he was already on bail he was told to appear at his trial before the next sitting of the National Court in Wewak before another Judge as I had already read the depositions during the cause of an earlier application to quash indictment by the prisoner’s lawyer. Furthermore being told by both counsel that the matter would be a plea. This cause was taken in fairness to the co accused to avoid bias etc.
5. This judgment on sentence is therefore only in respect of the prisoner, Francis Kavun.
BRIEF FACTS
6. On Friday 23 April between the hours of 5.00 am and 6.00 the victim was woken by noise of shouting and threatening from her neighbour’s house nearby. She was alone in her room when she heard banging and knocking on her door with the prisoner shouting, police, police and force them to open the door. When her brother in-law who was sleeping in the living room opened the door for fear of his life he was assaulted and ordered to lie flat on the floor. As soon as the victim opened her room door she was rushed at by the four men and ordered her to switch off the torch which was in her hand.
7. She was hit on her body, head, cheek and hands with the offensive weapons they had on them forcing her to fall on the floor hurt. Whilst on the floor the four men continued hitting her, forced her face downwards and the prisoner raped her from the rear. She said they turned her around and the prisoner forced his penis into her mouth and forced her to suck whilst the three other men held her down and assaulted her with their fingers in her vagina. She said as she was struggling helplessly and pleaded for mercy the prisoner blocked her nose, attempting to suffocate her to death. In the process of struggling she said the prisoner threw her down to the ground which she said was about three meters high.
8. She said by then most of the youths had left the scene. Only the prisoner and one other youth remained behind and dragged her to nearby bushes some 30 meters away and continued assaulting her. Fitz Mali threatened her with a knife and also threatened to kill her if she called for help. She received knife wounds to her ear and pleaded with them to allow her to pray to her God. The victim said she was again raped by the prisoner whilst Fitz Mali held her down.
9. The victim said whilst being raped the prisoner told her that the rape was in retaliation of what Ian Kuarik had done to his wife and he was taking his revenge on her. The prisoner told her that she was thrown down from her varandah and dragged to the bushes for her own safety from further attacks by the other youths.
10. She said during the horrific episode of rape and assault, the prisoner addressed her as aunty and apologised for raping her saying that she was innocent and did not deserve the treatment. She said the prisoner admitted that she was not a prostitute, asked for forgiveness and told the victim that it was within her rights to take him to court and be imprisoned for life.
11. According to the victim the prisoner felt sorry for her, took of his sports wear and gave it to her to wear. The prisoner then told his friend Fitz Mali not to hurt her any more. The victim said she was assisted by the prisoner and taken to the back of her aunts toilet. By then it was daybreak when her aunt’s son saw her and alerted her mother who came to her assistance.
12. The matter having being reported to the police, the prisoner was arrested.
MEDICAL REPORT
13. A gynaecologist from Wewak General Hospital Dr. G. Naboam attended to the victim the same day and furnished a medical report confirming the sexual attack. I quote his report in part:
“...She did not bleed after the incident. She had her normal period on or about 8th of March 2010 and is not on any family planning. Her boyfriend is in Port Moresby and she has not had sex over the last 24 hours before the incident.
On examination she was distressed somewhat but cooperated well during the examination. Her round collar tee shirt had blood stains on the left shoulder. Her ear cartilage was cut and had been sutured with silk...The vulva has some grass on the left labia minor and the perineum was moist. All her vitals were normal and there were no abnormalities in all her body systems. There was no lacerations or tear in the vulva but the vaginal vault contained whitish, viscous fluid in the posterior fornix. A high vaginal swab taken was negative for sperms on a wet film. She was counselled and commenced on antibiotics and emergency contraception.
In my opinion the findings are consistent with having been “raped” by the culprits.”
ALLOCUTUS
14. Upon administering the allocutus, the prisoner said sorry to the victim and also requested the Court to have mercy upon him.
ANTECEDENTS
15. The prisoner aged 26 years was employed at the time and comes from Kandinge village East Sepik Province. He is married with one child. At the time of commissioning the offence the prisoner was residing at Makun Settlement, behind Wewak Airport. The prisoner was baptised into the Israel Ministries. He received his primary education at the Kreer Community School and later at Brandi High School. No prior convictions were recorded against the prisoner.
THE LAW
16. Section 347 (1) of the Criminal Code prescribes the offence with which you have been charged and it reads:
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.”
17. The circumstances of aggravation in relation to this offence are as follows:
SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER
18. Mr. Nalambaul, counsel for the prisoner referred me to the following pack rape cases in which National and Supreme Courts have dished out sentences ranging between 18 years to 25 years:
Guilty plea-offender 19 years old-victim younger than offender-first offender-breach of trust-boyfriend/girlfriend relationship- Sentence 14 years;
Trial- offender older than victim-victim 17 years old- use of weapons-no genuine remorse-repeated rape- Sentence 19 years;
19. Mr. Malambaul in his lengthy well prepared submissions submitted on behalf of the prisoner that this case was different from those enumerated above in that the offence committed here was less serious. Counsel urged the court to consider a starting point of 15 years to be appropriate under the circumstances with movements up or down depending on the mitigating, aggravating and or extenuating circumstances.
20. Counsel for the prisoner submitted that the following mitigating factors should be taken into account in the prisoner’s favour and they include; the prisoner’s guilty plea from 12 counts initially laid; he was a first time offender; he showed remorse and paid some K3000 as” bel kol” to the victims relatives with a promise of permanent reconciliation this Christmas.
21. The court was referred to the Supreme Court case of Saperus Yalibakut v The State (2006) SC890 (Jalina, Cannings, Mogish JJ presiding) in which it held amongst other orders that when sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty .As to the facts to which the offender who has not pleaded guilty, the offender must be given the benefit of any reasonable doubt. Mr Malambaul urged the court to be mindful of facts not tried and that the prisoner be given the benefit of doubt. I will comment on this later.
SUBMISSIONS FOR AND ON BEHALF OF THE STATE
22. Ms. Nancy Lipai, of councel for the State submitted for the imposition of a punitive custodial sentence as the act of rape was carried out by a group including the prisoner within a period of one hour. Furthermore the victim was raped in her own home during the early hours of the morning and later dragged outside and raped again. Offensive weapons were used to threaten the victim and rape her. Ms Lipai submitted that the attack and rape was pre- planned on an innocent victim. She objected strongly to the suggestion by Mr Malambaul that the prisoner be considered for suspended sentence for reasons mentioned above.
23. The Court was referred to the following cases viz. The State v Poni [2004] PGNC 116; N2663, The State v. Nick Teptep [2004] PGNC 148; N2612, The State v.Kondi No.2 [2004] PGNC 226.
24. Counsel Lipai extensively quoted Sevua J as he was then in the case of Nick Teptep v. The State [2004] PGNC 148 to put emphasis in her submissions that the offence of rape in this case was very serious and warranted a punitive custodial sentence. This is the line she quoted from Sevua J...
”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.”
Ms. Lipai advanced that sentencing tariff between 15 to 20 years should be an appropriate starting point under the circumstances.
REMARKS
25. The victim in her mid thirties was alone in her room at the time the offence was committed whilst her husband was away in Port Moresby. The circumstances outlined in this case could be described as horrifying and an attack on an innocent victim and her decency. The attack on her house during the early hours of the morning between 5-6 am was well planned and violent. The prisoner played an active part in the early morning raid and attained the horrendous offence of raping a women whom he shamelessly admitted during the cause of the offence to be her aunt. There is ample evidence on the facts in this case that the prisoner used violence and assaulted the victim in which she received personal injuries to her body by the rape.
26. On the question of being thrown down from her home during the rape by the prisoner for her own safety in my view is absurd especially
in the light of the act of rape being carried out after the victim, now badly wounded, was dragged some distance away from the safety
of her home to be repeatedly raped by the prisoner. Immediately after committing the acts of rape on the victim the prisoner came
to his senses and begged for forgiveness. Having realised the enormity of the serious crime committed against the State and more
importantly to a close relative, an aunt, the prisoner freely and willingly asked to be taken to court and imprisoned for life. In
my view this acts of remorse were not genuine but nothing more than the self esteemed egoist attitude of a shameless man against
a weaker sex, the victim.
27. Despite Mr Malambaul’s attempts to tone down the seriousness of this offence of rape on the victim on behalf of the prisoner,
hence praying for leniency and part non custodial sentence, I must say here that I tend to differ with his views. Rape is a rape,
be it carried out by one person on a one to one basis or carried out by a group of persons, especially when it was carried out against
girls and or women who are of the weaker sex. The crime by its very nature is very serious. The right of women and girls are constantly
being abused and violated by the opposite sex against their own free will and perceived as sex objects to satisfy their lusts.
28. 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.”
29. Similar sentiments were expressed by Sevua J in the case of The State v. Nick Teptep (supra). 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.”
30. Returning to Mr Malambaul’s plea for this court to be weary and mindful of giving the prisoner the benefit of doubt on facts pleaded and not tried in court, I say here with respect that, that is a misapplication of that aspect of the Supreme Court decision. In the present case the prisoner pleaded guilty to all facts put before him hence I see no denial of his rights to be accorded a sentence based on those facts which he has already pleaded. Similarly in this case there are no facts to which the prisoner has pleaded not guilty; hence he cannot be afforded the benefit of reasonable doubt.
31. The offence in this case was committed by four men acting together, and masterminded by the prisoner who abducted the victim and raped her in turns. The circumstances of aggravation in relation to this offence are as follows:
1. Weapons - a bush knife and a gun, were used to frighten the victim;
2. The rape had been planned;
3. The victim was subjected to further sexual indignities and perversions;
4. The victim is a young married woman;
5. There is clear evidence of physical injuries on her body;
6. There were obvious signs of distress, pain and horror;
7. The rape was committed inside and outside the victims house;
8. Repeated rape
32. The circumstances of mitigation in relation to this offence are as follows:
1. The prisoner pleaded guilty — thus saved the embarrassment and pain of the victim from giving evidence and reliving the horror she had gone through.
2. The prisoner’s courage to admit his guilt and showed some remorse,
33. Mr. Malambaul has urged this court to take several other factors into mitigation including the payment of” bel kol” monies to the victims family members, that the incident occurred within the family unit and the likelihood of strained relationships was real; the prisoner has undertaken to pay further compensation to the victims family in due time etc. Courts have maintained all along that some of these factors often submitted and relied upon as mitigating factors, really ought not to be treated as mitigating factors. Other than those factors mentioned above there is nothing in mitigation of any effective impact on the question of penalty.
34. This court has been ably assisted by the Community Based Corrections officer in her well researched Pre Sentence Report for and on behalf of the prisoner. Notable amongst the prisoner’s report were signs of remorse and low risk to the community, save when he is under the influence of alcohol. Be that as it may, I see no exceptional circumstances in the prisoner’s favour.
35. Rape or gang rape as had happened in this case is a horrifying incident. You in company of other youths raided a settlement, broke into the house whilst the victim was asleep ,assaulted her and raped her inside her house and nearby. There is overwhelming evidence that four other youths took part in the raid and rape of the victim however only two of you were charged. I therefore make strong recommendation that those other offenders be apprehended and prosecuted in like manner.
36. 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 have 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.
37. 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.
38. The enormity of this crime which has been described in this judgment gives me serious consideration to the appropriateness of a base line sentence of fifteen (15) years however I have decided against doing that in light of your guilty plea and remorse. I consider the offence of rape to be of very serious nature not only for individual deterrence, but general deterrence to the wider community. In so doing I remind myself of the often quoted phrase by courts in that each case should be considered in the light of the different and peculiar circumstances under which they occur and that the maximum penalty is usually reserved for the worst case: see and Avia Aihi v. The State (No.3) [1982] PNGLR 653, Goli Golu v. The State [1979] PNGLR 653, Ure Hane v. The State [1984] PNGLR 105 14.
39. I too adopt the words of Amet J (as he then was) in The State v Peter Kaudik (at 207): however I depart from the sentence imposed then as it is almost 25years ago and obviously inadequate and inappropriate as there has been an escalation in the prevalence and seriousness in the commissioning of rapes and multiple gang rapes over the period. I quote:
"The sentence of this Court I believe should reflect the society's utter revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same right to be respected as do men, in their private persons."
40. A fairly recent case I handed down in Lorengau last month is The State v Francis Tachik (No.2) 27 February 2013, - CR. 1615 of 2010, (Unnumbered). This was a case of rape by a man on a17 year old female. He was charged for two counts for rape, and pleaded not guilty. After trial I found him guilty and sentenced him to 8 years upon each count to be served cumulatively. Although the factual situations are different the gravity and seriousness of that rape compared to this rape in my view are far more serious and grave. After the benefit which I have had of a thorough canvassing of rape cases and most helpful arguments, I have come to the conclusion that I should adopt the sentencing range in the Unnumbered case of The State v Francis Tachik and apply it here as a yardstick.
41. Therefore the sentence I impose upon you is 10 years in hard labour. I also order a deduction of your pre trial custody period up to grant of bail on 15 November 2010. In view of the seriousness of the rape committed I do not consider partial curtailment of custodial sentence appropriate. I order that a warrant of commitment be issued to that effect and your bail of K700 be refunded to you.
Sentences accordingly
______________________________________________
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Public Solicitor: Lawyers for the Accused
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