N5548

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 594 of 2012

THE STATE

-v-

KAWA APAI
(No.2)

Vanimo: Geita AJ
2013: May 21, 24,
2014: February 17, 18, 20

CRIMINAL LAW – Rape – Not guilty plea – Trial – One count of Rape-Section 347 (2) Criminal Code – Issue for trial-general denial and consent 

CRIMINAL LAW – Rape – Evidence – State witness no reason to testify falsely against the accused –weapon used - No evidence of consent – Rape with violence- Guilty verdict returned – Section 347 (2) of Criminal Code

Cases Cited: 

John Aubuku v. The State [1987] PNGLR 267
Golu v. The State [1979] PNGLR 653; 
The State v Mark Keroa & Ors [1990] N878,
The State v. James Yali (2006) N2989. 
The State v. Kenneth Penias [1994] PNGLR 
The State v. Nick Teptep [2004] PGNC 148; N2612

Counsel:

Mr. Augustine Bray, for the State
Ms. Renatta Yayabu, for the accused

JUDGMENT ON SENTENCE
20 February, 2014

	1. GEITA AJ: The accused pleaded not guilty to one count of rape of a girl without her consent and aggravation contrary to s. 347 (2) of the Criminal Code Act. 
	
	2.	The offence comes under Section 347 (2) of the Criminal Code and attracts a maximum imprisonment for life. This penalty however may be reduced by courts in the exercise of their discretion under Section 19 of the Criminal Code Act.

3.	For purposes of completeness I have detailed the facts as found during trial and conviction on 21May 2013. The brief facts are these. On 17 April 2012 the complainant was at her home preparing lunch with her sister when she decided to go to the garden to get some more fresh greens. Whilst picking greens in the garden the accused came from behind and grabbed her. She dropped the kitchen knife she was holding in shock and was picked up by the accused and used it to threaten the complainant. The complainant was forced further into the bush where she tripped and when she fell to the ground the accused forced himself on her, removed his shorts and removed the complainant’s shorts despite her protests and sexually penetrated her with his penis without her consent. They were disturbed by the complainant’s cousin brother in the act and the accused ran away. The matter was reported to Police and the accused arrested and subsequently charged with rape.

REMARKS
4.	Due to the 2013 circuit coming to a close both counsels were not prepared to make submissions on sentence. Furthermore upon Defence application for a Pre sentence report to be prepared on your behalf this decision on sentence was adjourned to the next circuit here in Vanimo. Due to reasons beyond my control I was unable to visit this province towards the end of last year hence further delays and now this circuit in 2014. A pre sentence report has been received and read during this circuit sitting. Submissions from both lawyers also have been made and received by court to be followed by a judgment on sentence. This I do so now. 

ANTECEDENTS 

5.	The State presented a brief antecedents report on the prisoner with no prior convictions recorded against him. The prisoner is aged 20 years and comes from Omoi village in the Vanimo/Green district in West Sepik Province. He resides at Pual Base camp near Vanimo town with his parents and other siblings. He is single and was educated up to grade 7 at Vanimo High School and left due to school fee problems. 

ALLOCATUS 

6.	Upon administering the allocatus pursuant to section 593 of the Criminal Code, the prisoner requested for courts mercy. The prisoner said sorry to the victim and the State and asked to be put on probation.

AGGRAVATION

7.	The circumstances of aggravation in relation to this offence are as follows:

1.	Matter to trial-costing time and money to the State.
2.	A weapon, a knife was used by the prisoner. 
3.	Victim suffered considerably due to the physical pain and distress of coming to court to give evidence.

MITIGATION

1.	Prisoner is a first time offender
2.	Co-operated with police
3.	Pleaded for leniency and apologised to court and to the victim in his allocutus

COMMUNITY ATTITUDE

8.	Community attitudes are best reflected by the good cross section of persons interviewed by the Probation Officer in compiling his report. The prisoner in the eyes of his family members is said to have a quiet personality save when he is under the influence of alcohol. Their views however do not find corroboration with the victim’s parents and relatives, which is not surprising. In their eyes of the victim’s parents any prospects of their daughter getting married is now ruined, coupled with her education as a result of this crime. The offender’s family members are seeking reconciliation and are willing to pay some form of compensation. The victim’s family members on the other hand are demanding compensation in excess of K10, 00.00. 

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

9.	Ms. Renata Yayabu of counsel for the prisoner referred me to the case of John Aubuku v. The State [1987] PNGLR 267. Mrs. Yayabu submitted that although the case was decided some years back the principles in sentencing remained unchanged save for changed circumstances and increased tariffs. Counsel for the prisoner also submitted that the following mitigating factors should be taken into account in the prisoner’s favour and they include; he was a first time offender; he apologised, and the prisoner spent almost 8 months 3 weeks in custody. Ms Yayabu urged the court to take into account all factors in favour and against the prisoner and come up with an appropriate sentence. However advanced that this was not the worst type of rape and reminded court not to impose the maximum sentence. She further submitted that Section 19 of the Code be taken into account in light of the prisoners willingness to pay some compensation and favourable recommendation from the Senior Probation Officer in Vanimo for the prisoner’s suitability for a long term probation with conditions. Ms Yayabu however urged the court to consider a starting point of 15 years. 

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

10.	Mr. Bray for the State invited the Court to take into account that the prisoner was found guilty after trial of rape under aggravated circumstances. He conceded with defence submissions on mitigation and aggravation on behalf of the prisoner. Mr Bray also agreed with defence submissions that the maximum punishments are best left for the worst types of cases. (Goli Golu (1979) and The State v Mark Keroa & Ors [1990] N878. He submitted that a starting point of 15 years be considered and any suspension was a discretionary matter for the courts. Turning to the pre sentence report he said the victims’s family had demanded K10, 000 as compensation. 

11.	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. 

12. 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. 

13.	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."

14.	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."

PRE SENTENCE REPORT

15.	I thank the Senior Probation Officer in Vanimo Mr. Ben Kasanda for a well researched report on your behalf. The views of all persons having an interest in this case were sought. In doing so the job of court has been made very easy in arriving at a punishment suitable to the offence committed taking all factors into account.

APPLICATION TO THIS CASE 

16. The offence in this case was committed by the prisoner who raped her in the bushes not too far away from her house. The circumstances of aggravation in relation to this offence are as follows: 

1.	A weapon, a bush knife, was used to frighten the victim; 
2.	The rape had been planned; 
3.	 The victim was subjected to further sexual indignities and perversions; 

The circumstances of mitigation in relation to this offence are as follows:
1. he was a first time offender; 
2. he showed remorse: 
3.8 months 3 weeks in pre trial custody. 

SENTENCE

17.	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 offence of rape be the same. I have referred to only two cases here to show these trends and show societal expectations in general.

18.	The sentence I therefore impose upon you in this Indictment is as follows:

(1)	You are sentenced to 15 years imprisonment with hard labour.
(2)	I order a deduction of 9 months whilst in custody awaiting sentence. 
That will leave you with 14 years 3 months in custody, of which you will be released after serving only two years in prison and the balance sentence wholly suspended thereafter with you put on Probation with the following conditions:

(i)	That you will be placed on Probation for 24 months with scheduled supervision and reporting by the Probation Officer here in Vanimo,

(ii)	In order to maintain peace and harmony within your community including the two affected families I will order a reasonable compensation of K2500 under the powers given to me by the Criminal Compensation Act.

(iii)	You must not consume alcohol or home brew during the life of your Probation.

(iv)	 If you fail to comply with any of the above conditions you will be arrested to serve the full term of imprisonment as ordered. 

Sentences accordingly 
_________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused