N6194

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.885-886 OF 2014

THE STATE

-V-

JUBILEE KALALA
(NO.2)

Kokopo: Lenalia, J.
2015: 2nd, 3rd, 4th, 7th, 10th, 22nd & 23rd December
2016: 3rd 8th, 15th & 17th February

CRIMINAL LAW – Rape – Two counts of rape – Sentence after findings of guilty to the two counts of rape – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2).
 CRIMINAL LAW – Rape of two victims closely related to prisoner – Breached of trust and circumstances of aggravations – Victims grandchildren of the prisoner – Breach of trust with very highly serious circumstances of aggravations. 
CRIMINAL LAW – Sentencing principles – Deterrent penalty called for.

Cases cited:
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
State v Biason Benson Samson (2005) N2799
The State v Francis Kolitz (Unreported judgment delivered on 19.7.07) Cr.No. 1604 of 2006
The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569
The Sate v Himson Piamia (6.3.2014) Cr. No. 444 of 2014
James Mora Meaoa v The State [1996] PNGLR 280
Lawrence Indemba v The State (1998) SC593
The State v Ludwick Jokar (N0.2) (2008) N3362

Mase v The State [1991] PNGLR 88
State v Penias Moke (2004) N2635
Public Prosecutor v Terrance Kaveku [1977] PNGLR 110
Stanley Sabiu v The State (2007) SC866

Counsel:

Mr. W. Paka, for the State
Ms. J. Ainui, for the Accused

17th February, 2016

1. LENALIA, J: The prisoner was charged with two counts of rape against s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. He pleaded not guilty and a trial was conducted. He was found guilty on 10th December 2015. The court heard the accused on allocutus and counsel's submission on 15th February 2016. He now appears today for the court to sentence him. (See judgment on verdict dated 10.12.2015).

2. In a case of rape like the current one, circumstances of aggravations are defined by a number of provisions in the Criminal Code. I discuss the outline of those provisions commencing with the section charged.

3. Rape is a serious crime and the maximum penalty provided under s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 is 15 years imprisonment. Where such crime is committed with aggravations, Subsection (2) of the same section states that where an offence of rape is committed with circumstances of aggravation, an accused person could be liable to life imprisonment. The court has discretion under s.19 of the Criminal Code to impose a term lower than the both maximums depending on circumstances and provisions under which an offender is charged. 

 This section states:

"347. DEFENITION 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."

4. On the above definition, Subsection (2) refers to "circumstances of aggravations". Those are factors which make the offence of rape serious when it is committed against a victim. Further definition of aggravating circumstances is contained s.1 of the Criminal Code defines the phrase "circumstances of aggravation" in the following terms: 

"Circumstances of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

5. In addition to the above definitions, the definition of the term can also be found in s.349A (a)(i) of the Criminal Code as amended. There may be other forms of aggravations and as such. The phrase or definition cannot be limited to what is defined in that provision. It states:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant; or

(g) the complainant has a serious physical or mental disability; or

(h) the complainant was pregnant at the time of the offence; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS)."

6. The prisoner's case falls under Subsection (e) & (f) of the above section. He committed the crimes of rape whilst having custody of the two young girls. The court notes that, there were no threats issued against the two victims. The crimes were committed in the prisoner's house and because, there was fear of any harm to the prisoner, they kept quiet because according to the evidence of the two victims, if they raised an alarm, the victims' brothers and uncles would come and attack the prisoner. Section 347A (2) & (3) of the Criminal Code Amended defines consent in the following terms:

"(2) Circumstances in which a person does not consent to an act include but not limited to, the following;

(a)	the person submits to the act because of the use of violence or force on that person; or
(b)	the person submits because of the threats or intimidation against that person or someone else; or
(c)	the person submits because of fear of harm to that person or to someone else; or
(d)	the person submits because he is unlawfully detained; or
(e)	the person is asleep, unconscious or so affected by alcohol or other drug so as to be incapable of freely consenting; or
(f)	the persons is incapable of understanding the nature of the act or communicating his unwillingness to participate in the act due to mental or physical disability; or
(g)	the person is mistaken about the sexual nature of the act or the identity of the person; or
(h)	the person mistakenly believes that the act is for medical or hygienic purposes; or
(i)	the accused induces that person to engage in the activity by abusing a position of trust, power or authority; or
(j)	the person having consented to engage in the sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity; or
(k)	the agreement is expressed by the words or conduct of a person other than the complainant.

(3)	In determining whether or not a person consented to the act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:-

(a)	the fact that the persons did not say or do anything to indicate to a sexual act is normally enough to show that the act took place without the person's consent; and 

(b)	a person is not to be regarded as having consented to a sexual act just because – 
(i)	he did not physically resist; or
(ii)	he did not sustain physical injury; or
(iii)	on that or an earlier occasion, he freely agreed to another sexual act with that person or some other person."

(Emphasis added).

Addresses on Appropriate Penalty

7. On his allocutus, the prisoner expressed remorse for what he did to the two young victims. He said sorry to the Court then to the victims and their extended family members. He said, to cure the breach he created between his family and those of the victims, he wants to pay compensation to the two victims who are his grand-daughters. He asked the Court to consider his good standing in his community on sentence and asked the Court to consider leniency. 

8. Ms. Ainui, counsel representing the prisoner asked the court to consider the following factors:

•	his client is the first time offender, 
•	no force was used to commit the offence, 
•	the cases he committed were one off incident,
•	no sexual diseases was passed to the victims, 
•	the prisoner's long outstanding record of involvement in community works and
•	he has a long public service carrier since he left school. 

9. Counsel submitted that though there is a lot of community input in the pre-sentence and means assessment reports, she submitted, the court can be able to exercise its sentencing discretion to impose an appropriate penalty. She asked the court to consider the fact that, the victims and the prisoner are closely related such that compensation should be considered. 

10. For the prosecution, Mr. Toke stood in for Mr. Paka who prosecuted this case. Counsel asked the Court to consider the totality principle because there are of course two offences charged on the indictment. Counsel asked the Court to consider, the serious breach of trust because, the two victims are grand-daughters of the prisoner. Counsel asked the Court to consider a deterrent penalty.

11. Both counsels referred to sexual offences with similar circumstances of aggravations. The court will refer to some of those cases later. On the issue of compensation counsel asked the Court to consider differing views as to whether compensation should or should not be paid at all. 

Sentencing Trends

12. Sentencing trends for crimes of sexual penetration cases vary from case to case. Penalties imposed on these crimes are entirely dependent on whether such offence was committed with aggravations or not. Many of those sexual offences have seen significant increases on sentences given by National Court Judges. I consider the principles set by Justice Cannings in State v Penias Moke (2004) N2635 and in State v Biason Benson Samson (2005) N2799 that where a sexual offence involves breach of trust, the closer the relationship of the victim is to an offender, the higher the penalty ought to be. 

13. Because, the crime of aggravated rape is serious, it carries the maximum penalty of life imprisonment pursuant to s.347 (2) of the Criminal Code. This Court has the discretion under s.19 of the Criminal Code. This means this Court can impose a term lower than life imprisonment. The sentencing principles also involve consideration on extenuating and aggravating factors. On the issue of sentence and what should be the appropriate penalty to be imposed on any case, the practice so far is, it is left to the sentencing discretion of the National Court Judge to decide the appropriate penalty in each case depending on the merits of each case: Stanley Sabiu v The State (2007) SC866.

14. In this Province, in The State v Francis Kolitz (Unreported judgment delivered on 19.7.07) Cr.No. 1604 of 2006 the court sentenced the prisoner to a consecutive sentences of 17 years for two charges of rape on the victim who was asleep at the time she was raped. I said in that case that there was evidence of elements of abuse of trust and authority because there was breach of the de facto relationship trust authority and dependency in the above case.

15. Rape is serious because it involves invasion of the right to privacy guaranteed by s.49 of the Constitution. The court found on the evidence of Alice Moramoro and Anisha Tade that they each submitted to instances of rape was because they feared that if they call out for help, their uncles would come upon the prisoner and harm him. In case of Alice, she was in bed sleeping when the accused came upon her and raped her on two separate occasions. Then in case of Anisha Tade, she was first intoxicated by the accused before she was called into the prisoner's room where she was raped. These actions are aggravating circumstances pursuant to s. 347A (2) (c) & (e) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. 

16. This Court adopts comments by the Supreme Court in the cases such as James Mora Meaoa v The State [1996] PNGLR 280 and Lawrence Indemba v The State (1998) SC593, that the crime of rape is a violent and prevalent offence against young or old women who deserve the right to be respected as the PNG Constitution provides for protection of law in s.37 and speaks of inherent dignity of all people be they female or male, citizens or non-citizens. 

17. The crimes that you committed were very serious indeed and not only against the two complainants. What you did has certainly affected the parents, brothers and uncles of the two victims and relatives and of course, your own relatives and the extended family members. 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 for an ordinary rape. 

18. Where an offence of rape is committed with circumstances of aggravations under s.347A (2) (a)-(k) of the Criminal Code Amended, offenders must prepare to meet life imprisonment: The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (2004) N2569. 
19. In The State v Ludwick Jokar (N0.2) (2008) N3362 a case by Davani, J: in Wewak where the accused was charged with two counts of aggravated rape, he was found guilty and imprisoned to 12 years cumulative sentences. In The Sate v Himson Piamia (6.3.2014) Cr. No. 444 of 2014, unreported judgment, the prisoner pleaded guilty, and was sentenced to 25 years. In that case, this court considered that since it was an aggravated rape, the court considered that case to be the worst type case because, the offender and his brother came to the house where the victim and her children together with the mother of the victim were sleeping at night. 

20. They cut around outside the house. The victim came outside in fear with her young child. She was ordered to leave the child in the house. When she came out the offender and his brother raped her right on the door to the house, such that what they were saying when having sex was heard by the mother of the victim and the children in the house. 

21. On the current cases, the court found that, the two complainants are closely related to the prisoner and the prisoner breached the trust reposed on him first as the grandfather of the two complainants and of course, the offender being an elderly person and leader in his community. This case is aggravated by the breach of trust because the two girls are closely related to the prisoner. 

22. There was a very big age difference between the victims and the prisoner. The Court is of the view that, if it does not give a term of imprisonment, it will give a wrong signal to the people that it is alright for elderly people to commit sexual offence and when they come to court, they can be excused.

23. The court has considered the submissions by the two lawyers and the terms of the pre-sentence and means-assessment reports. A number of persons were contacted by the Community Base Correction Officer. In practice, before the prisoner is sentenced, I consider and remind myself about the totality principle which requires that when a decision is made to make two or more sentences consecutive, I must consider the totality principle.

24. I must see that a total is just and appropriate: Public Prosecutor v Terrance Kaveku [1977] PNGLR.110, see also Mase v The State [1991] PNGLR.88 or Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. 

25. I have considered options of imposing concurrent or consecutive sentences. I must make sure that, if the court decides to order consecutive sentences, the total must be fair and reasonable in all the circumstances of the two charges. I do remind myself that, the maximum penalty for the crime of rape by aggravation under s.347 (2) is life imprisonment. This is subject to the Court's discretion under s.19 of the Criminal Code.

26. Because, the cases were committed by aggravations as the two victims were young and are closely related to the prisoner, I come to the conclusion that, consecutive sentences should be imposed and orders for compensation should also be made. He is sentenced in the following terms:

(i) Count 1: Sentence to 9 years imprisonment.
(ii) Count 2: The offender is sentenced to 9 years. 

29. The two sentences shall be served consecutively making a total of 18 years imprisonment. Nine years of the head sentence shall be suspended. The time spent in custody shall be deducted and his bail money can be converted into part payment of compensations. 

30. The Court is of the view that since the prisoner is closely related to the two victims, he should pay some compensation to them. He is ordered to pay K1, 000.00 each to the two victims. Due to the prisoner's age which is now 60 years, as stated in paragraph 24, the Court orders those 9 years of the head sentence are suspended upon two conditions: 

a.	He shall pay such compensation within 3 months.
b.	 After serving the remaining balance, he shall be on good behaviour for 2 years. 
c.	Any time spent in custody shall be deducted.
__________________________________________________________________
The Public prosecutor: Lawyer for the State
The Public solicitor: Lawyer for the Accused.