N5638

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 364 OF 2011

THE STATE

v

PETER PAITAPO
Prisoner

Bulolo: Murray J
2014: 21 March

CRIMINAL LAW – sentencing – prisoner found guilty after trial on charges of rape – victim first wife of prisoner - rape of victim under circumstances of aggravation – victim now deceased – victim subjected to sexual acts in front of co-wife – aggravating circumstances outweigh mitigating factors – sentence of 13 years 9 months imposed – s347 Criminal Code Act

Cases Cited

Family & Welfare [1983] PNGLR 424
Allan Peter Utiang v The State Unreported Unnumbered Judgment delivered in Wewak on 23 November 2000 in CR 15 of 2000
State v Ferdinand Nakap Penge (2002) N2244
State v Sinai (No.2) (2004) N2541
State v Donald Engavia & Ors (2004) N2590
State v Ilam Peter (2006) N3090
State v Kamilus (2009) N3760
State v Felix (2011) N4156
State v Clarence Tenemogi (2011) N4364
State v Seke Kapian, Unreported Unnumbered Judgment in CR 108 of 2012

Counsel

Ms M. Zurenuoc, for the State
Mr. E. Sasingian, for the Prisoner

DECISION ON SENTENCE

21	March, 2014

1. MURRAY J: Introduction: Peter Paitapo, this is a Ruling on your Sentence. You had on 7 May 2013 pleaded not guilty to a charge that on 1 January 2010 at Bulolo, you sexually penetrated one Lucy Kaupa without her consent. Following your plea of not guilty, a trial commenced on the same date and on 10 May 2013, this Court found you guilty of the charge of Rape pursuant to s 347 of the Criminal Code Act and convicted you on the same date for the said charge. On 15 May 2013, your lawyer applied for a Pre Sentence Report to be furnished of which I granted the application and adjourned submission on sentence to 20 May 2013. On 20 May 2013 I heard submissions on sentence and reserved my ruling to today.

Facts

2. The facts to which you pleaded not guilty to, resulting in a trial, from which I found you to be guilty of the charge of rape, are set out in my decision on verdict. I do not wish to repeat those facts again, but for purposes of this decision on sentence, I set out the following facts:

You had two wives. The first is the victim, who is now deceased and the second is named Doris, who has since your arrest, left you.

On 1 January 2010, the victim was with her father, at New Camp when you went to her and with force took her to your house.

When you got to your house, Doris, your second wife was already in the house, sleeping on the bed. You then ordered the victim to remove her clothes, but she refused and when she refused, you using a pistol, a knife and a pair of scissors, threatened to kill her if she did not do as you ordered.

In fear of her life, the victim removed all her clothes and was made to do indecent sexual acts with yourself and Doris, including allowing you to sexually penetrate her from behind.
When you were done, you told both women not to report the matter to the police.

Law

3. You were charged and convicted on the charge of Rape which is a serious offence under s 347 of the Criminal Code Act. That section reads:

"(1)	A person who sexually penetrates a person with 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." 

4. The punishment prescribed in this section only reflects the seriousness of the offence and it is intended to protect women and girls from sexual predators such as yourself.

5. As you had been convicted the issue now for me to determine is, "what penalty I should impose on you."

6. In order to determine that, I had to consider what you said in allocutus, your lawyer said on your behalf and compare to what, Counsel for the State has said and at the same time consider and compare your case to similar cases that have already been decided by other Courts.

Allocutus

7. In allocutus, you firstly expressed remorse for what you did and then you asked for mercy from this Court and asked for a lenient punishment in that you asked if this Court can put you on good behaviour bond. When making your request for a lenient sentence you also said that your father is old but is taking care of your children, and if you are not given a lenient sentence your father who has grown old will not be able to look after your children and so there will not be anyone else to do that.

Your Lawyers Submission

8. Your lawyer had firstly asked that this Court take into account the matters and recommendations set out in the Pre Sentence Report which was prepared and submitted to this Court in support of your request for leniency in your sentence.

9. It was also submitted on your behalf by your lawyer that this Court should also take into account mitigating and aggravating factors. 

10. As to mitigating factors your lawyer asked this Court to consider, provocation by the victim in a non-legal sense. By that your lawyer submitted that you did what you did because of the following: Firstly the victim left you in 2007 with two children. She then returned in 2010 she had affairs with other men which resulted in you taking her to Court where she was found guilty of adultery and never paid the fine as ordered by the court and so you were provoked into committing the offence.

11. As to the aggravating factors, your lawyer submitted that this offence is a prevalent one in this society. 

12. Having made those initial remarks, your lawyer submitted that as you were found guilty of one count of aggravated rape, the starting point for sentences in similar type of offences is 15 years imprisonment which can be adjusted up or down. Your lawyer then went on to submit that I should consider and impose a sentence of 15 years as the starting point and taking into account what you said in allocutus and what is reported in the pre sentence report in particular the recommendation, I should impose a head sentence of 10 years imprisonment. 

State Lawyer's Submission

13. Counsel for the State on the other hand submits that under the provision of the Criminal Code Act where aggravated factors are pleaded which is the case here, the penalty would be life imprisonment and the starting point would be 15 years whilst in all other cases of rape under s 347 of the Criminal Code Act sentences would range from 8 to 18 years. The following cases were cited by Ms Zurenouc: State v Camilus (2009) Unreported N3760; State v Ilam Peter; State v Felix (2011), Unreported N4156; and State v Seke Kapian (2012).

14. Of the three cases cited, it was submitted that the victims and prisoners were related to each other whilst the relationship in your case is one of "a marriage" which is a holy sacrament which you have violated. The victim was not only threatened by you as the husband but was also abused in full view of your other wife. Further it was also submitted that as if it was not enough, you further subjected the victim to assault. 

15. In response to your lawyers submission that there existed defector provocation which should act in your favour, Ms. Zurenuoc submitted that the Court had already believed the victim who is now not alive and not here to respond to the matters raised in the defector provocation and so the Court should find there is no such provocation. 

16. In conclusion it was submitted by Ms. Zurenuoc that an appropriate sentence for you would be 25 years and that you should be sentenced to 25 years imprisonment in hard labour.

The Seriousness of the Offence

17. Rape is a very serious offence. Courts have from time to time said that rape is a violent crime which involves traumatising a victim. Under the Criminal Code Act as Amended by the Criminal Code (Sexual & Crimes against Children Act) where there exist circumstances of aggravation in the commission of the offence it attracts the maximum penalty of life imprisonment subject to s 19 of the Criminal Code Act and in cases where no aggravation exist the maximum penalty is imprisonment for 15 years. Considering the penalty under the Criminal Code Act as Amended the offence of rape is a very serious offence.

18. In State v Donald Engavia & Ors Unreported Judgment of Justice Kandakasi delivered on 29 April 2004 in the proceedings CR No. 256 of 2004, His Honour in defining the meaning and purpose of the Amendment to the Criminal Code Act, held that: 

"What this means in my view is that where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise then this amendment has no meaning and purpose because it makes no difference between the previous position and the new provisions." 

Sentencing Trend

19. Prior to the amendments, sentences range from as low as 5 years where Courts held the view that circumstances of a case was not that serious and since the amendment, Courts have imposed sentences ranging from 15 years to 18 years for cases where aggravating factors were present, whilst lesser sentences were imposed for offences where no aggravating factors existed. 

20. In State v Ilam Peter (2006) N3090, Justice Lay sentenced the prisoner to 14 years imprisonment. In that case the victim was the daughter of the prisoner. The prisoner initially pleaded not guilty but changed the guilty plea after the victim gave evidence that he raped her. 

21. In State v Camilus (2009) N3760, Justice Lenalia, in a guilty plea to a charge of rape where no weapons were used and the victim was the daughter of the prisoner's wife's sister, sentenced the prisoner to 15 years imprisonment.

22. In State v Felix (2011) N4156, the offender pleaded guilty to the charge of rape of a 16 year old girl who was his sister in-law and His Honour Justice Cannings imposed a sentence of 12 years.

23. In State v Clarence Temomogi (2011) N4364. Justice Kariko imposed a sentence of 24 years imprisonment. In that case there were two victims who were raped in the presence of each other. One victim had her fingers cut and the other victim was assaulted while holding her baby. The prisoner committed this offence whilst waiting for his sentence for wilful murder he used a weapon and pleaded guilty to both counts of rape under s 347(2) of the Criminal Code Act and the Court sentenced him to 20 years for each count however applying the totality principle reduced that to 12 years each resulting in a total of 24 years imprisonment.

24. In State v Seke Kapian, a judgment by myself which is unreported and unnumbered in the court proceedings CR 108 of 2012, I imposed a sentence of 10 years. The offender in that case pleaded guilty very early to a charge of rape under s 347(1) of the Criminal Code Act, and there were more mitigating factors then aggravating factors.

25. In State v Sina (No.2) (2004) N2541, Justice Kandakasi sentenced the prisoner to 17 years imprisonment. In that case, the offender pleaded not guilty to one count of rape of a married woman contrary to s 347 of the Criminal Code Act, and after a trial, the offender was convicted on the said charge of rape pursuant to s 347 of the Criminal Code Act as Amended.

26. The victim in that case was a married woman who was walking on a road to go and see her brother following problems with her husband. The prisoner who passed her on the way decided to rape her; he was armed with a bush knife which he used to threaten the victim. The victim struggled with him but was eventually overpowered by the prisoner who forcefully had sexual intercourse with her.

27. Except for the case of State v Sina in all the other cases cited involved guilty pleas. 

Your case

28. In your case you pleaded not guilty and following a trial you were found guilty for the offence of rape pursuant to s 347(2) of the Criminal Code Act. On this respect, your case is similar to the case of State v Sina. However, I am of the view that the circumstances in your case are far more serious than the circumstances in the case of State v Sina.

29. The victim in your case was your wife who is now deceased. Marriage in my view is a sacred relationship between a husband and wife which creates a high relationship of trust. It is the foundation of a good family unit that demands respect for each other in everything including sex in the marriage. A female should not be seen as a sex object. Sex is not the only thing that exists in a marriage. Therefore when you force your wife, the victim who is your first wife, into sexual intercourse following other sexual acts in front of your second wife, in my view is far more serious as it is unimaginable of a husband to subject his wife to such sexual ordeals. In the circumstances, I am of the view that an appropriate starting point would be 15 years. Whether I adjust up or down would depend on the following:

What you said in allocutus, what the Pre Sentence Report recommended and what your lawyer said on your behalf in terms of the mitigating and aggravating factors.

I now consider each of this individually. 

30. Firstly as to what you said in allocutus, I note you said you are sorry for what you did and that you are concerned for your children's safety and upbringing if you are in custody. With regard to your expression of remorse, Courts have held that an expression of remorse without anything such as payment for compensation means nothing (see State v Ferdinand Nakap Penge (2002) N2244. 

31. In your case you did say you were sorry in allocutus, but, there is no evidence of any compensation payment made by yourself to the victim's family. In spite of that I note that the victim's father had when interviewed said "it is his great desire that you return to your family." By this statement it is clear that he does not hold any more grudges against you and is willing to have you back despite what you did. In the circumstances I find this a factor in your favour.
 
32. With regards to the Pre Sentence Report, I note it is recommended that you are a suitable person for an order for probation. In making these recommendation and assessment, the Probation Officer considered your background, and the views of several people he had interviewed. Those he interviewed included: 

(i)	Your father. 

He expressed a view essentially that he is an old man and at the moment taking care of your children and is not able to do that for any longer and asked that this Court give you a non-custodial sentence so that you can go back and take care of your own children. 

(ii)	Your brother. 

He said that he is sorry for what you did but more sorry that your children are left without anyone to take care of them and that he is unable to help you because he also has his own family to take care of and so he apologised for your actions. 

(iii)	Your second wife's (Doris) mother. 

She expressed a view that she's sorry for her grandchildren and that she is also an old woman and cannot be able to look after your children who are growing up and need you as their father to be with them. It is also her view that it is your responsibility to take care of the children and so this Court should give you a non-custodial sentence so that you can come out and take care of your children. 

(iv)	Morgan Peter. 

He is a community leader and he expressed a view and his view essentially is that your father and the mother of one of your wife, are both very old and it has become very difficult for them to take care of your children and so asked that this Court consider all the facts and situation in particular that relating to your innocent children who are now caught up in this situation and that the Court should consider their welfare and upbringing as paramount consideration and should consider a sentence appropriate so as to best serve all those concerned in particular the children.

(v)	Victim's father. 

He said the victim who is his first born child and even though she has now passed on, and he has expressed he is not happy with what you did to her, he has however come to terms with the loss of his daughter is and like your father and the mother of your second wife is concerned about the welfare of the children and so he is also of the view that this Court should take into account the welfare of your children and asked that a non-custodial sentence be also imposed so that you are able to return to the community and take care of your own children.

33. The report has essentially through the views expressed, asked this Court to take into account the plight of your family, in particular your children's wellbeing, and upbringing something that the law has now made it clear that such background factors or matters are not matters that can go towards mitigating a sentence, because they should have been considered by the offender before committing any offence. This is said in the case of Allan Peter Utiang v The State (unreported judgment delivered in Wewak on 23 November 2000 in the proceedings CR 15 of 2000). 

34. In that case the Court held that "it is a little too late to talk about an offender's personal background including the needs of his family's concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best fits the offence he has committed in the particular circumstances in which the offence was committed."

35. I agree with this view and do not see any reason to depart from it.

36. And thirdly as to what your lawyer said on your behalf, I note in particular your lawyer's submission that what you did to your wife was as a result of her own conducts. 

37. As to the argument by your lawyer that the offence of rape against your wife was committed because you were forced into doing that by her conduct. I agree with the State's submissions that, this Court had accepted the evidence of the victim who has passed on and the fact that her statement was admitted by consent, in my view, cannot now be opened to be attacked at this stage as the opportunity to do that has passed by consent to allow the victim's statement as unopposed evidence. Secondly even if there was defector provocation, you had another wife and so to say that you raped the victim who is your first wife because your sexual needs were not satisfied, is a lame excuse, considering you had a second wife whom you could turn to for your sexual satisfaction. Consequently I do not find this as a factor in your favour at all. 

38. Against the one factor I have considered in your favour, are a number of factors against you. Firstly there is the prevalence of the offence; secondly, you committed the offence using dangerous weapons, thirdly that you outright denied the charge resulting in a trial which went on for a full day, in which you were later found guilty. Your denial meant the Court had to sit and conduct a trial which involved evidence to be called by State witnesses and one of the witnesses being the father of the victim, who no doubt would have been sick in the stomach from hearing what his daughter was put through and finally, I reiterate the fact that the victim was married to you and in fact your first wife whom you had forcefully had intercourse after you subjected her to other humiliation of other sexual ordeals in the presence of your second wife, which in my view is far serious than a rape in a situation where the victim and an offender are strangers.

39. When I consider all of these matters I have highlighted above, and taking into account the decision in the judgment of Justice Kandakasi, I consider your case more serious than that case. However, when I take into account what the victim's father has said, it is clear that he has forgiven you and to be forgiven by someone who is most affected other than his daughter who has passed on, is a factor I consider has weight in mitigating your sentence. Consequently I consider a sentence of 17 years appropriate. From these I order a deduction of the period you have already spent in custody awaiting your trial and further awaiting your sentence. The period you have already spent in custody is 3 years, 3 months. Taking that into account, you will be left with 13 years, 9 months to be served. You are now ordered to serve that balance of your sentence in hard labour at Buimo Correctional Service.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner