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State v Koi [2014] PGNC 263; N5753 (15 August 2014)

N5753

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.828, 284 & 829 & 830 OF 2013

THE STATE

V

TOMMY KOI, JAMES SIRIP & JACOB WESLEY
(N0.2)

Kokopo: Lenalia, J
2014: 3rd, 6th, 25th, 25th May, 9th, 22nd July & 15th August

CRIMINAL LAW – Sexual penetration without consent – Sentence after finding of guilty of the pack-rape –Criminal Code s.347 (2) of the Criminal Code as Amended

CRIMINAL LAW – Sentencing principles on aggravated rape – Deterrent sentences called for – Rape with physical violence and further threatened use of force – Victim abused whole night until she ran away from the gang next morning

CRIMINAL LAW – Appropriate penalty – Sentence of 25 years imposed.

Cases cited

Winugini Uragitaru v R [1974] PNGLR 283
John Aubuku v The State [1987] PNGLR 267
The State v Peter Kaudik [1987] PNGLR 201
The State v Penias [1994] PNGLR 48
James Mora Meaoa v The State [1996] PNGLR 280
Andrew Uramani & Ors v The State [1996] PNGLR 286
Thomas Waim v The State (1996) SC 519
Lawrence Indemba v The State (1998) SC593
Stanley Sabiu v The State (2007) SC866
The State v Dii Gideon (2002) N2335
The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2)
(29.4.2004) N2569
State v Eki Knodi, Mike John, Allan Nemo, Koli Sop Kondi and Isaac Sip (No.2) (2004) N2543
The State-v-Mark Konupio & 4 Others (2005) N2800
The State v Taulaola Pakai & 3 Others (2010) N4125
The State v Emanuel Papake & 4 Others (12.7.2011) Cr. No. 1131 of 2010
The State v Tokau Malagene & Johnson Robert (11.10.2013) Cr. No. 1180 of 2011

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin, for Accused

15th August, 2014

1. LENALIA, J: The three prisoners were found guilty of one count of pack-rape contrary to s.347 (2) of the Criminal Code (as Amended). The crime took place on the night of 1st March, 2013 at Malaguna village on the outskirts of Rabaul town.

2. The evidence upon which the three prisoners were found guilty came from the victim (Jane Johannes) and her boyfriend Desmond Robin. The evidence showed that, the three offenders together with others who have not been arrested forcefully abducted the victim from Ori Solomon’s house a dormitory type building located in the heart of Coconut Products Limited Toboi Mill near Rabaul and forced her to go with them to various locations where they repeatedly raped her against her will.

3. They raped her from that house and crossed the road up the hill where they repeatedly raped her all throughout the night until the morning of the next day, she ran away and escaped. She reported immediately. A host of exhibits were tendered and accepted as evidence from the three records of interviews to all statements ranging from Ex. “1” and “1A” to Ex. “12”. The full ruling of the decision of this court may be read on the judgment on verdict dated 9th July 2014.

Addresses on Allocutus

4. Tommy Koi: On 22nd July, the court heard your addresses on allocutus. In your case Tommy Koi you said, your father is deceased and your mother is alive but she is blind. You said, you don’t know what is happening to her since you have been in custody. You begged for leniency but then you said, you are innocent of this crime and you mentioned someone by the name of somebody Caltex as being responsible.

5. James Sirip: The second prisoner, James Sirip expressed concern that he is of mixed parentage. His mother comes from Malaguna No.1 village, Rabaul District and his father is a Manusian. He said, he has no land in Rabaul and his father is employed by Coconut Products Limited Toboi Mill in Rabaul town.

6. Jacob Wesley: Jacob said, he is happy and whatever penalty that will be imposed on him, he will take it. He said, his parents are both deceased and the only remaining member of his family is his sister who is now taken care of by relatives in the village. He said, he is happy with whatever penalty that will be given to him today.

Counsels Addresses on Sentence

7. The court heard counsels who addressed the court on what should be the appropriate penalty imposed on the three of you. Mr. Wala who appeared on behalf of Mr. Kaluwin made submission first on the antecedents of each prisoner. He then went on and addressed the court on the seriousness of the crime of rape.

8. Counsel addressed the Court in contexts of the crime of rape being committed by groups of offenders like in the instant case where three men were involved. He asked the court to consider the welfare of the family members of the three prisoners and asked the court to consider the sentencing principles set out in earlier cases by the Supreme Court and concerns raised in cases like Thomas Waim v The State (1996) SC 519 and other cases the court will refer to a little later.

9. Mr. Rangan, counsel for the State addressed the court on the seriousness of the crime of gang rape. He asked the court to consider aggravations such as:

- actual violence used,
- victim assaulted in the room where she was abducted from,
- application of offensive weapons namely a bush-knife or bush-knives,
- the court should infer that the crime was planned,
- the victim had to come to court to reveal the sordid acts carried by the three accused and others on her.

10. Counsel referred to both National and Supreme Court cases to guide this Court decide on an appropriate penalty for the three prisoners.

Applicable Law

11. The offence of rape is defined by s.347 (1) (2) of the Criminal Code in the following terms:

“(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 as offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19 to life imprisonment.”

12. The offence of rape is punishable by life imprisonment. Although the Courts have been imposing sentences reflecting the seriousness of the offence, this has not had any effect on the desired purpose of deterring offenders. The Courts continue to hear cases of aggravated rape nationwide.

13. The victim of your case was a school girl at Vunakanau Primary School. She was doing her Grade 8 in 2013 when you three raped her on the night of the 1st day of March 2013. She was accompanied by her boy friend Desmond to find shelter for that night when you came upon them in Ori’s room and started to rape her. You took her from that house across the Rabaul/ Kokopo road and up the hills where you three took turns to sexually penetrate her without her consent. Her evidence showed that there were more people involved on the vicious attack on her. She recalls that she may have been sexually penetrated for seventeen or even twenty times that night.

14. Sentencing principles for charge of rape were set out by the Supreme Court more than 20 years ago in John Aubuku v The State [1987] PNGLR 267 and The State v Peter Kaudik [1987] PNGLR 201. In Thomas Waim v The State (1996) SC 519 the Supreme Court noted that there had been an escalation in the prevalence and seriousness in the commission of rape cases. In our time today, rape is becoming too frequent and groups of people do engage in inhuman treatment and breach of the dignity due to women and young girls.

15. Judges of both the National Court and Supreme Courts on appeals have often expressed concern over men’s unruly behavior against women and girls. An example of such concern can be found in The State v Kaudik [1987] PNGLR 201 where, Amet J, (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences where the Committee said:

“Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value.”

16. In the National Court case of The State v Penias [1994] PNGLR 48, Injia J (as he then was) said:

“Rape constitutes an invasion of the most intimate part of a women’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 or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, 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.”

17. The Supreme Court on appeals has expressed similar concern on the abuse of women and girls. They are entitled to enjoy the freedom and tranquility that PNG used to have some 30 years or so ago. Now they do live in fear and feel restricted in their movements. In the case of James Mora Meaoa v The State [1996] PNGLR 280, the Supreme Court expressed similar concern in the following terms:

“We also agree with the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person, young or old, who happens to be by, be they on public road, in the gardens or as here on the coast. We agree that the right of all persons, female as well as male not to be assaulted must be clearly stated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all female population regardless of age or background.”

18. In the Supreme Court case of Lawrence Indemba v The State (1998) SC593, the Court there expressed very serious concern about the crime of rape.

“The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State sc 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years".

19. The crime that you three committed is very serious indeed and not only against the victim but also affected her parents and relatives. Her boy friend and his family members and their communities and Papua New Guinea as a whole. This is the reason why the law provides that where an offender offends against this section of the law, which is against the will and wish of a female or male person, the parliament decided that the maximum penalty is 15 years. Where the crime of rape is committed with circumstances of aggravation pursuant to s.347A (2) (a)-(k) of the Code, offenders must prepare to meet life imprisonment: The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569.

20. On pack-rape cases, Judges of the National Court have expressed great concern on this type of vicious and heinous attack on women and girls. In the above case (The State v Garry Sasoropa & 2 Others (No.2) (supra) the offenders were sentenced to varying terms of imprisonment. The first accused was sentenced to 25 years, the second to 22 years and the last offender received 18 years but were partially suspended with strict conditions. Judges of this Court have expressed concerns in various ways in relation to men's behavior toward women and girls. Mr. Rangan submitted that an appropriate penalty would be above the principles in ordinary rape cases as the crime committed by the three prisoners was committed in circumstances of aggravations.

21. In The State v Taulaola Pakai & 3 Others (2010) N4125 a case before Hartshorn J. in Losuia, Milne Bay Province, the offenders were sentenced to 13 years after pleading guilty to one count of pack raping a 16 year old victim. That case was aggravated as the four accused were taking turns in raping the young victim. That was a gang rape aggravated by the number of accused acting together and the application of force. Some of these cases were similar to the case before me as it involved three of you raping the victim.

22. In The State v Tokau Malagene & Johnson Robert (11.10.2013) Cr. No. 1180 of 2011, after the prosecution had called three witnesses and certain court Exhibits tendered, a submission of no case to answer was made, they changed their not guilty pleas to guilty. They were re-arraigned and they pleaded guilty. They were sentenced to 15 years.

23. In The State v Emanuel Papake & 4 Others (12.7.2011) Cr. No. 1131 of 2010, the five co-accused were found guilty of abducting the victim after they threatened, intimidated and forced her to follow them to where she was repeatedly raped until the morning of the next day. The first accused received 20 years while the others got 15 years imprisonment each. In that case, this Court considered the principle of their role of participation in the crime.

24. It is established law that, active offenders should receive higher penalties than those who played mere passive roles: Winugini Uragitaru v R [1974] PNGLR 283 and Andrew Uramani & Ors v The State [1996] PNGLR 286.

25. In The State v Dii Gideon (2002) N2335, the trial Judge Injia J (as he then was) imposed a sentence of 25 years for a pack rape by three men on a pregnant overseas visitor with threats of violence and intimidation using weapons and further her home was invaded and robbed.

26. In another gang rape case, that of The State v Eki Knodi, Mike John, Allan Nemo, Koli Sop Kondi and Isaac Sip (No.2) (2004) N2543 the five offenders were sentenced 18, 20, 22, and 25 years for a gang rape by ten men. They were sentenced according to the degree of violence and their participation in the crime. There were several rapes committed on the victim. In the case of The State v Donald Poni (2004) N2663, the Judge, Justice Kandakasi imposed a sentence of 19 years on a member of a five member gang which abducted and raped the victim. That case involved breach of trust situation.

27. In your case, the victim recalled that, on the night she was raped, it was a nightmare for her and she said in evidence that she could not exactly recall how many times she was raped but she estimated it would have been over seventeen times. I found on the judgment of your case that, this case was one of the worst type of gang rape. One of you forced a bush knife against her neck and told to leave the house and follow you and forced her to jump over the fence which she did.

28. The victim followed you in fear to various locations where there was big and loud noises of music where drunkards were drinking that night. This created great fear in her and she thought that if the drunkards new that she was abused that night, all the men would come upon her and rape her. The kind of behaviour you three and others exhibited towards the victim was and is very serious indeed and such conduct must be visited with stiffer penalties to deter people like the three of you and other likeminded persons of your type.

29. In your case, this Court considers comments by the Supreme Court in Thomas Waim v The State (supra) where the Court there said that primary court should as much as possible avoid "quantum leap" or leaps but judges should consider progressive increases in sentencing for particular offence is reasonable and justified depending on the merits of each case.

30. Having considered all extenuating and aggravating circumstances submitted on behalf of each prisoner, in the circumstances of the instant case, violence was used. The victim was abducted and led to various locations where she was repeatedly raped. Then the other factor of aggravation was the crime was a gang rape. Taking all of these factors and principles into account, I accept counsels' submission that you three were found guilty of a serious crime.

31. I consider it is appropriate that all of you should receive the same penalty as the evidence on trial reflected that you each played significant roles in the participation of the crime. It will be necessary, in particular, to consider the degree of participation of each prisoner. It is established law that a main perpetrator will receive a heavier sentence than passive participants: The State-v-Mark Konupio & 4 Others (2005) N2800, The State-v-Rodney Gela & Clarence Logi (2005) Cr.Nos.1300 & 1301. (See also The State-v-Eki Kondi & 4 Others (supra).

32. The law clearly is that, co-offenders of an offence should receive the same treatment if there is nothing warranting a different treatment. The different roles played by co-offenders in the commission of an offence, dictates different treatment of the offenders. This means an offender who plays a major role is liable to receive a higher penalty than the one who plays a lesser role. In addition, the different antecedents of the offenders dictate treatment of the offenders differently, with the result that one offender may receive a higher penalty while another may receive a lower penalty: Winugini Urugitaru v R, Andrew Uramani & Ors v The State (supra).

33. There is no doubt in my mind, Judges of the National and Supreme Courts on appeals have said that rape is a very serious crime. This is because it is a crime committed against the weak particularly women and young children. The Constitution guarantees respect for the inherent dignity of all people and this clearly extends to all female be they young or old and regardless of whatever background they may come from.

34. Having considered all extenuating circumstances on the part of the three prisoners as submitted by their counsel and the aggravating circumstances submitted by the State's lawyer, I must now consider the principles set by the Supreme Court in John Aubuku v The State (supra) the Supreme Court set some guidelines to be taken as appropriate for the sentencing for rape although since then the Supreme Court has called for sentences to be reviewed upwards. The relevant guidelines set out in the above case were:

"(1) the offence is a serious crime to be punished by an immediate custodial sentence other than in wholly exceptional circumstances,

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point (then, 5 years);

"a) violence over and above the force necessary to rape,

b) use of a weapon to frighten or wound the victim,

c) the rape is repeated,

d) the rape has been carefully planned,

e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind,

f) the victim is subjected to further sexual indignities or perversions,

g) the victim is either very old or very young,

h) the effect upon the victim, whether physical or mental,"

35. In your case, the Court found you three guilty because you pleaded not guilty. You committed this offence with actual violence and threats of violence. The victim and her boy-friend were threatened and in fact a bush knife was pushed against the victim's throat and physically pulled and pushed out from the house where you three and others abducted her from right in front of her boy-friend.

36. Being a young girl, the victim withstood her nightmare as the rape was repeated throughout the night. You used a bush knife to threaten her and lead her away by force from Desmond Ori. Such disrespect cannot be tolerated by any Court of law and offenders must be made to suffer the full brunt and force of law. It appeared from the evidence of the prosecution that, you carefully planned the rape because, as soon as the two of you came upon the victim that night, others joined in and for the three of you, you were well known to Desmond Ori.

37. The victim was abducted and led to various houses where she was repeatedly raped. Another consideration the Court must take into account is what effect or what was the impact created by the news of you three gang raping the young girl. It was a shock and indeed sad news for the parents of the victim. And in case of the parents of the prisoner James Sirip, it was a shock to them as your father said, he did not see you in your bed when he came home from work the early hours of the relevant date. I am sure the relatives of the other two prisoners would have the same impact and effect. Then the other factor of aggravation is that, the offence you were found guilty of was a gang rape.

38. I must endorse the prosecution counsel's submission that, a penalty that should be imposed on the instant case should be well above the normal sentencing tariffs. Taking all of those factors and principles into account, I consider your degree of participation. You three acted together and as found, you each were the main perpetrators on committing this crime I do not consider it appropriate for the Court to treat you differently because the evidence established that, each one of you played major role in carrying out the rape.

39. Having come to that conclusion, you three will receive equal treatment meaning your sentence will be the same as none of you played a passive role. The law clearly states that, co-offenders of an offence should receive the same treatment if there is nothing warranting a different treatment. The different roles played by co-offenders in the commission of an offence, dictates different treatment of the offenders. This means an offender who plays a major role is liable to receive a higher penalty than the one who plays a lesser role.

40. On the instant case, there are no differing antecedents of the three offenders as the court found they all actively participated in the crime and that there is no reason for treating them differently. The penalty that will be imposed on them today may be a lesson to other would be offenders, a warning must be given that women and girls deserve to be respected just like any other persons.

41. I consider a penalty above average should be imposed. You are each sentenced to terms of 25 years imprisonment. The times you have spent in custody shall be deducted from this sentence and you shall serve the balance accordingly. On the prisoner James Sirip, your bail money shall be refunded to him immediately.

_______________________________________________________________
The Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for The three Accused