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State v Koi (No 2) [2018] PGNC 94; N7176 (29 March 2018)

N7176

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 829 OF 2013

THE STATE

V

TOMMY KOI

(No.2)

Kokopo: Susame, AJ
2018: 13^th - 16^th, 19^th February,
8^th, 29^th March

CRIMINAL LAW –Sentence after trial – Offence of Sexual Penetration of a 18 year old school girl with circumstances of aggravation – ss. 347 (1) and (2) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 – Pack rape of victim by several men – Use of bush knife and threats of violence – Seriousness of crime – sentencing guidelines & comparable judgments - relevance of offence – need for stiffer sentences to be imposed in response to society’s demand – introduction of Criminal Code (Amendment) No.6/2013 – Creation of new offence under s. 347 C, aggravated rape – maximum sentence not considered– not the worst kind of case – 25 years sentence impose.

Cases cited:
Aihi v The State (No 3) [1982] PNGLR 92
Golu Golu v The State [1988-89} PNGLR 653
John Aubuku v The State [1987] PNGLR
Hindemba v The State [1998] PGSC 48; SC593
Paia Lifi v Philip Dege (1981) N291 (M),
State v Eki Kondi & 4 ors (No 2) (2004) PGNC 226; N2543
Taiba Maima v Sma [1971-1972] PNGLR 49,
The State v. Eddie Peter (No 2) (12/10/01) N2297
The State v Francis Kavun & Robin Andolu (2013) N5114
The State v Himson Piamia (2014) PGNC 260 N5755.
The State v. Kunija Osake. 22/05/03 N2380
The State v Ndrakum Pu-Uh (2005) N2949
The Sate v Penias Mokei (No.2)
The State v Peter Freeman Ekalia (2011) PGNC 281 N 4603
The State v Piamia (2014) PGNC 260; N5755
The State v Rex Lialu [1988-89] PNGLR 449
The State v Rogan Henry & Ben Wartin (2015) N6094
The State v Thomas Waim [1995] PNGLR 185
The State v Yali (2006) N2989

Counsel:
Mr. Rangan, for the State
Ms. Ainui, for the Prisoner

DECISION ON SENTENCE

29^th March, 2018

1. SUSAME, AJ: The prisoner is again before this court to receive his sentence. On 8^th March 2018 after a 3 days trial he was found guilty of the offence of sexual penetration or rape with circumstances of aggravation under: s. 342(1) (2) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
   

FACTS

2. Basic facts established by evidence are these. The girl who was then 18 years of age and a grade 8 student at Vunakanau Primary School had gone with his boyfriend to Coconuts Products Limited (CPL) compound at Malaguna No.1 on the evening of 2^nd March 2013. The boyfriend had left leaving the girl alone inside the room after having sexual intercourse. Just few minutes later the prisoner and one other co-accused forced open the door. They both threatened the girl with a bush knife and took her away out of the compound up to the hills. There the girl was sexually penetrated several times by the prisoner and several other boys who were drunk at 3 different spots until dawn when the girl managed to escape. Other facts established by evidence are in the judgment on verdict.
   

OFFENCE & PENALTY REGIME

“Section 347 DEFINITION OF RAPE states:

(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.

3. By Criminal Code (Amendment) Act (No. 6) 2013 parliament introduced a new crime of aggravated rape. The amendment was certified on 18 September 2013. By authority of Section 110 of the Constitution, it came into operation on the date of certification. The new provision is in this terms:
   

“The Principal Act is amended by adding immediately after Section 347B the following new section:

"SECTION 347C. AGGRAVATED RAPE.

Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent –

(a) whilst armed with a dangerous weapon or offensive weapon or instrument; or

(b) in company with one or more other persons; or

(c) causes grievous bodily harm to a person, before, after, or in the course of the offence; or

(d) of the victim a child under the age of 10 years,

is guilty of the crime of aggravated rape and shall be sentenced to death.".

(underlining mine)

4. The new crime of aggravated rape under s 347C provides for the penalty of maximum sentence of death. It seems the new amendment by creating the new crime does not replace section 347(1) & (2) penalty provisions of 15 years and life imprisonment. The amendment does not repeal the s 349A interpretation clause of definition of circumstance of aggravation.
   

Section 349A (interpretation clause) in defining “circumstances of aggravation” states:

“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).

SUBMISSIONS

5. Court has heard submissions on sentence from lawyers representing either side. To offer some guidance Ms. Ainui for the prisoner made reference to the following cases:
   
   1. Golu Golu v The State [1988-89] PNGLR 653
   2. The Sate v Penias Mokei (No.2)
   3. The State v Ndrakum Pu-Uh(2005) N2949
   4. The State v Francis Kavun & Robin Andolu (2013) N5114
   5. The State v Rogan Henry & Ben Wartin (2015) N6094
      
6. Case (1) is the authority on maximum penalty for an offence to be reserved for the worst possible case. Cases (2) & (3) are authorities on factors to take into account in sentencing prisoners for sexual offences against children. Cases (4) & (5) were cited for comparison on sentences that were imposed. In those two cases sentence of 10 years and 20 years respectively were imposed.
   
7. Submission by Mr. Rangan is in more detail. Apart from other matters discussed, he referred to The State v Yali (2006) N2989 in which His Honour Cannings J reiterated the call by other judges that sentencing guidelines by the Supreme Court in John Aubuku v The State [1987] PNGLR are now outdated and there was a need for the Supreme court to set new sentencing guidelines to reflect the new amendments to the rape provisions. Mr. Rangan as a reminder submitted for the court to give a careful consideration of the facts and circumstances surrounding this case guided by case precedence with similar circumstances as this one in reaching an appropriate sentence. Counsel tabulated a list of 9 cases out of the many decided by the National Court starting with the 1995 case of The State v Thomas Waim [1995]PNGLR 185 to a 2014 case of The State v Himson Piamia (2014) PGNC 260 N5755.
   
8. Mr. Rangan went on to cite passages of opinions expressed by few judges in at least 5 cases cited of the prevalence of sexual offences including rape over the years. In conclusion he submitted that the court should impose a sentence which is both punitive and deterrent, reflective of the peculiar nature of this case.
   

AGGRAVATING FACTORS

1. Threats of violence and bush knife was used
2. Prisoner was in company of one other when the victim was abducted
3. The victim was subjected to sexual penetration several times by a group of boys all through the night
4. Prisoner was under the influence of alcohol.
5. Age difference of 22years between the girl and the prisoner (girl 18 years & prisoner 40 at the time offence was committed)
   

MITIGATING FACTORS

1. First time offender
   

ALLOCUTUS

9. Prisoner expressed though he respected the decision of the court he was still innocent. He said it was his first time in court and has been a good boy. He asked for leniency of the court. He pleaded for a lesser penalty to be given.
   

COMPARABLE DECISIONS ON SENTENCE

10. There are so many decided cases available to use as a guide in arriving at a sentence. I have had the benefit of reading some including the ones counsels have cited in their respective submissions. I noted sentences vary from case to case in early plea and after trial cases over the years. I have decided to use just a few of them below.
    
11. But first the Supreme Court in Aubuku v The State (supra) set down the following guidelines to be taken as appropriate to sentencing for rape:
    

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

(2) for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point;

(3) for rape committed by two or more persons acting together, or by a person who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years;

(4) for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger, a sentence of 15 years or more may be appropriate; (underling added)

(5) for rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will not be inappropriate;

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

(a) violence over and above the force necessary to commit 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.

(7) matters which may be relevant to mitigation include:

(a) a plea of guilty;

(b) the age of the defendant; and

(c) the degree of involvement of the defendant in the planning and carrying into effect of the crime;

but do not include:

(d) the fact that the victim may be considered to have exposed herself to danger by acting imprudently; and

(e) the previous sexual experience of the victim.

12. The Supreme Court in this case set the baseline sentence of 5 years to 15 years depending on the circumstances listed under the provision well below the maximum sentence of life imprisonment.
    
13. Women’s rights advocacy groups, Non-Government Organizations (NGOs) and other law abiding citizens have repeatedly been calling for much tougher penalties to be imposed for public deterrence against increasing instances of rape. In view of the public outcry the Courts have time and again echoed similar sentiments in sentencing offenders and yet some sentences imposed were so low and not commensurate to the seriousness of the crime to serve as effective deterrence. At least few judges have responded to the society’s demand and imposed sentences over and above the established baseline sentence set by the Supreme Court in Aubuku as set out below.
    
14. In The State v Thomas Waim (supra) His Honour Sevua J (late) in a plea case imposed a 25 years sentence which was later struck down to 18 years by the Supreme Court on appeal. The female victim was abducted and taken away under coercion and pack raped by many others including the prisoner.
    
15. Kandakasi J in The State v. Eddie Peter (No 2) (12/10/01) N2297 after trial of a rape of a young pupil in breach of a de facto trust with use of violence and threat imposed a 17 years sentence.
    
16. His Honour Jalina J (late) in The State v. Kunija Osake. 22/05/03 N2380 imposed a sentence of 18 years in hard labour on a guilty plea for the rape of an 11 year old girl, in breach of trust relationship as brother and sister in-law.
    
17. Kirriwom J in The State v Peter Freeman Ekalia (2011) PGNC 281 N4603 after a trial imposed a 28 year sentence. In this case the prisoner abducted the victim using threats of violence and a home-made gun and raped her several times.
    
18. In State v Eki Kondi & 4 ors (No 2) (2004) PGNC 226; N2543, the female adult victim was threatened with a bush knife from a house and taken out and raped by 10 men in a village outside of Vanimo town in broad day light. Only 4 prisoners were convicted. After finding each of them guilty on verdict His Honour Kandakasi J making reference to his earlier decision in The State v. Eddie Peter (No 2) imposed a 17 years sentence amongst other things stated.
    
19. His Honour went on to impose a sentence of 25 years on one prisoner, 3 prisoners each received 20 years sentence & one received 18 years sentence.
    
20. In The State v Francis Kavun and Robin Andolu (supra) prisoner Francis Kavun pleaded guilty to a rape charge with circumstances of aggravation. In the early hours of the morning the prisoner with four others using a bush knife, gun and an iron bar threatened and assaulted the victim’s in-law and the victim at a settlement in Wewak. They threatened the victim and forced her down on the floor of the house and took turns raping her. His Honour Geita AJ (as he then was) sentenced the prisoner to 10 years.
    
21. His Honour late Lenalia J in a plea case of The State v Piamia (2014) PGNC 260; N5755 imposed a 25 year sentence. The prisoner in that case threatened an adult pregnant mother with a bush knife, took her out of the house at night and raped her with his brother just near her house at Bitavavar village, just outside Kokopo Town.
    
22. In The State v Rogan Henry & Ben Wartin (supra) another plea case of rape with circumstances of aggravation. The rape was committed at Kabaga Plantation at night. The victim was with her friends when the group of about 6 to 7 men fought and threatened her friends with bush knife and stones. They broke into the room where the victim was and threatened her with a bush knife and forcefully took her out away from the compound into the Balsa plantation. There they undressed her and took turns raping her. His Honour Late Lenalia J imposed a 20 year sentence against each prisoner.
    
23. The Supreme Court in Ian Napoleon Setep v The State (supra) on appeal against severity of sentence struck down the maximum life years sentence imposed by the trail judge and reduced to 25 years.
    
24. I think His Honour Kandakasi J in The State v Eki Kondi & 4 0rs (No. 2) critically made some interesting synopsis of sentencing trends which were considered not tough enough despite the society’s demand for tougher deterrence sentences over and above the established base line sentence of 5 to 15 years set by the Supreme Court in Aubuku v The State. Kandakasi J inter alia stated despite various sentences handed down over the years, there has never been a decline in rape or sexual offence cases. His Honour attributed this increase in part to the kind of the sentences imposed which did not serve their intended purpose of deterring other would be offenders. Let me quote certain passages of His Honour’s judgment:
    

“The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases. This is necessary for a number of reasons. Firstly, the Courts have given sufficient warning of an incre ase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that, it is a serious violation of a woman or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence. Finally, the Courts exercise a power that belongs to the community, who expect the Courts to act as they themselves would, but within the constraints of the Constitution.”

25. Few years earlier in State v Eddie Peter (No 2) Kandakasi J stated this:

“In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. Usually, the particular circumstance of each case determines the appropriate sentence in subsequent cases. In the exercise of the discretion vested in him or her, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.”

26. His Honour went on and stated:

"I consider it inappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

27. I cannot agree more to his Honour’s sentiments and I adopt them as my own in this case. There is a growing need and expectation from the society for tougher penalties to be provided for very serious crimes such as wilful murder, robbery kidnapping for ransom and rape in recent times. It is for that very reason maximum penalty of life imprisonment were provided for certain category of offences including rape. If that is not enough parliament introduced has yet amongst others. By the Criminal Code (Amendment) Act 2013, No. 6, created the new offence of Aggravated Rape (s 347C) with death sentence as the maximum penalty.
    
28. Sentencing judges should not be deterred by the concept of quantum leap from imposing stiffer penalties to the demands of the society if circumstances warrant severe deterrent and punitive sentence, even the maximum. They should be free to exercise their judicial discretion guided by the main principles of sentencing for purposes of deterrence, retribution and rehabilitation. After our criminal justice system and the Constitution also provides for early release on license under the Parole Act or under s.151 Power of Mercy provision of the Constitution.
    

SERIOUSNESS OF THE OFFENCE

29. About the seriousness or gravity of the crime of rape I cannot express it any better than the sentiments expressed by the senior Judges of the National and Supreme Courts of Papua New Guinea.
    
30. The Supreme Court in John Aubuku v The State stated that the offence of rape should be visited with a strong deterrent and punitive sentence in the form of a custodial sentence.
    
31. The Supreme Court in Hindemba v The State [1998] PGSC 48; SC593 said this:

"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,”

32. In The State v Peter Freeman Ekalia (supra) Kirriwom J expressed this:
    

“Rape, no matter how and why it is committed it is a very unpleasant crime against humanity. In that same case His Honour went onto state this; “This society is being fed to the dogs by men who are so selfish and corrupt and care about no one else except themselves.....When men use their sexual organs as weapons of misery to bring evil and life long suffering to women for their selfish lusts and sexual gratification, there is no meaning except revulsion and utter disgust from all decent and peace loving men and women.”

33. The above are but few examples of views expressed by the courts on the crime of rape and against those who commit such crimes.
    
34. Let me say this piece. Rape to me is highest degree of sexual gratification and perversion. It is an intrusion and violation of the fundamental God given right, of existence, of self-worth and of dignity of a woman as another human being. It causes considerable harm to the victim both physically and psychologically. This lustful act is uncommon in the animal kingdom but only committed by humans, by males who are sexually obsessed, selfish and crazy do such inhumane acts.
    
35. Until the 2013 amendments the maximum penalty for rape with circumstances of aggravation was imprisonment for life, subject to s 19 sentencing discretion. Parliament has heard the cry of the society and made amendments and in addition introduced a new crime of aggravated rape which carries a maximum penalty of death sentence. The amendments also included amendment to s.614 (1) and prescribed 4 different methods of executing the death sentence.
    
36. No one including you cannot deny that incidents of sexual penetration of females both young and old in recent times is ever increasing and prevalent in East New Britain and everywhere else in PNG. This court cannot be insensitive about these developments and the ongoing cry of the society against the crime of rape. The court has a mandated duty to ensure protection of lives of its citizens as well as non-citizens of this country. Perpetrators of such serious crimes must be incarcerated.
    

SENTENCE TO IMPOSE

37. Should this court impose maximum penalty provided for rape on you? It is trite law that in the exercise of sentencing discretion maximum sentence should be reserved for the worst category of case with very serious circumstances of aggravation. The worst type case maybe in a case of repeated offenders or circumstances surrounding the particular offence charged are very aggravating. (See Taiba Maima v Sma [1971-1972] PNGLR 49, Goli Golu v. The State [1979] PNGLR 653, Paia Lifi v Philip Dege (1981) N291 (M), & Aihi v The State (No 3) [1982] PNGLR 92 .
    
38. In your case this court exercising the judicial power of the people will not impose the maximum sentence on you. The court considers that even though your case consists of circumstances of aggravation it cannot be classified as the worst category of rape case.
    
39. Why that isn’t so? Firstly, you are not a repeated offender with history of constant court appearances and convictions of similar or very serious crimes and a real threat to society. Secondly, there is no evidence of the victim receiving severe physical injury and contracting any known Sexually transmitted diseases like HIV except for the psychological trauma she experienced which will take time to heal through the Word of God and with proper counselling.
    
40. This court is also guided by the other considerations set down in Aubuku v The State and apply them in your case. The Degree of your participation is an important factor to be held against you. It has been established by evidence at your trial you and one other played a leading role from the start to forcefully enter the room and threatened the girl with a bush knife took her out to the hills outside CPL compound and not far away from Malaguna No1 village where you come from. There you both sexually penetrated her more than once followed by many other boys who each had their turns in sexually penetrating her through her vagina. The girl would not have been subject to further sexual penetration by many other boys if she had not been taken out by you and your friend. You were under the influence of alcohol when you both assaulted her and took her away without her consent and pack raped her.
    
41. Your expression of remorse was not genuine but just to get the sympathy of the court. What makes it not genuine is firstly you still maintained that you are innocent despite the court finding you otherwise. At your trial you denied knowledge of any payment of compensation to the girl’s father. Nonetheless, you must know that payment of compensation in very serious crimes such as willful murder and rape does not completely remove criminal liability. (See, The State v Rex Lialu [1988-89] PNGLR 449 at page 452 -453 Amet J). There was nothing tangible of value paid as compensation to the victim and her family as a demonstration of your expression of remorse at any time up till this day.
    
42. You said it is your first time in court for this offence and said you have been a good boy in the community. Needless to say those two factors are diminished and have less significance measured against the gravity of the offence you committed and society’s call for tougher deterrent sentence. The sentence that will be imposed on you should not only be punitive or retributive but also rehabilitative. I say rehabilitative because many rehabilitation programs are being introduced into major prisons throughout the country. Churches are also involved in such programs towards rehabilitation of prisoners. Such programs have seen positive results with some prisoners being transformed.
    
43. An early plea would have gone to your favour (as decided by the courts) for a lesser sentence. Instead, you made the young girl appear in court to retell every detail of the ordeal she went through. That was a courageous thing for her to do against the shame and humiliation of her speaking in front of people and to be subject to a lot of questioning by the lawyers after all the psychological trauma she had been through.
    
44. Having said all of the above where do I start if maximum sentence is not being considered? Counsel representing you has pleaded on your behalf for a head sentence between 10 -20 years. I share similar view as that of my other colleague judges that head sentence of 8-15 years set by the Supreme Court in Aubuku 31 years back in time is outdated and may not be appropriate in view of the current development trends discussed. There has been a steady increase in the sentences imposed for rape cases with circumstances of aggravation as seen from the cases. I will not depart from that trend. With respect I think 10 years head sentence as pleaded by your counsel would not be appropriate. This is not a one on one rape case. It involves a gang rape of a young helpless teenage school girl by you and many other boys not once but several times under the circumstances already alluded to.
    
45. This case has distinct but similar features to that of other comparable judgments cited above. In my respectful view, sentence should run from between 20 -28 years. Accordingly, this court imposes this sentence upon you;
    
    1. You are sentenced to 25 years imprisonment to be served with hard labour at Kerevat Jail.
       
    2. In the exercise of court’s discretion under s 3 (2) of Criminal Justice (Sentences) Act 1986 the court orders that the pre – trial custody period of 2 years 11 months 3 weeks and 1 day be discounted from your head sentence.
       
    3. You are to serve the balance of your sentence subject to further remission given to you at the discretion of Kerevat jail command.
       
4. Court further orders a fresh warrant of commitment to be issued forthwith to hold you in prison at the Kerevat Jail.

__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner