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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 840 OF 2019
THE STATE
v
JOHN LEVEN
Kimbe: Numapo J
2020: 18th June & 21st July
CRIMINAL LAW – Particular offence – Sexual Penetration Without Consent – Guilty Plea –Aggravating and Mitigating factors–Offence committed in the company of others – Offenders and his co-accused took turns in raping the victim- Victim suffered both physical injuries and psychological trauma - Custodial sentence considered appropriate in this case.
Held:
(i) In the present case the aggravating factors and circumstances have rendered the mitigating factors completely insignificant.
(ii) Offence was committed in company of other persons.
(iii) Offender and his accomplices took turns in raping the victim that amounts to pack-rape.
(iv) Victim suffered physical injuries as a result of the rape.
(v) Victim is psychologically traumatized from this incident and this has the potential to have some long-term effects on her life.
(vi) The seriousness of the offence demands tougher penalties on sexual predators, deviants and sadists. A sentence with a strong deterrent effect is necessary to send a clear message not only to the prisoner himself but also to other would-be offenders that they can expect the same if they commit the offence.
(vii) Sentenced to 12 years less the pre-trial custody period.
(viii) No suspended sentence.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Aubuku v The State [1987] PNGLR 267
State v Kiku Mercy Sang Cr. No. 139 of 2018 N7419
State v Hebrus Amon (2018) N7634
State v Kunija Osake [2003] PGNC 121; N2380
State v Pais Steven Sow [2004] PGNC 181; N2588
Lawrence Hindemba v The State [1998] PGSC 48; SC593
Counsel:
A. Bray for the State
D. Kari for the Defence
SENTENCE
21st July, 2020
1. NUMAPO J: This is a decision on sentence. The accused JOHN LEVEN of Peribe village, Poroma, Southern Highlands Province pleaded guilty to one (1) count of aggravated sexual penetration without consent. The accused was in company of others namely, Giru Edward when he committed the offence. He was convicted accordingly.
2. The facts to which the accused pleaded guilty were that; on 11 April 2019 between 7:30am and 8:00am the prisoner and his co-accused Giru Edward were at Nahavio when they saw the victim (named) walking alone on the road towards Mosa next to the Bevere Oil Palm nursery. Both followed her and grabbed her and dragged her into the bush under the oil palm trees. They threatened her and removed her clothes and each had sex with her by inserting their penis into her vagina without her consent and ejaculated. The prisoner was the second person to sexually penetrate the victim after his co-accused Giru Edward had sex with the victim without her consent. The State further alleged that a third person who arrived at the scene later was also involved in sexually penetrating the victim.
3. Section 347 (1) (2) reads:
s. 347. DEFINITION OF RAPE
(1) A person who sexually penetrates a person without her consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2) imprisonment for a term not exceeding 15 years.
(2) Where an offence under Sub-section (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.
4. The new amendment to the Criminal Code under section 347A carries a maximum penalty, subject to Section 19, death for offences of aggravated rape. It listed four circumstances of aggravation that would attract the death penalty. I list them below.
5. I note from the indictment however, that none of the four aggravating circumstances were pleaded hence, the appropriate maximum penalty for this present case would therefore be, subject to Section 19, imprisonment for life.
6. The medical examination carried out on the victim revealed the following:
- Blood and debris on vulva and vagina
- Abrasions/bruises markings on vulva/vagina
- Hymen was torn
- Vaginal swab showed presence of sperm cells.
7. The medical report is consistent with the report obtained from the victim.
8. In sexual penetration offences, the following aggravating factors and circumstances must be present for it to be considered as an aggravated sexual penetration that attracts the maximum penalty prescribed by law either under s. 347 (1) (2) or s. 347A (Amendment) of the Criminal Code:
(i) Where the offender illustrates a sadistic tendency in sexually penetrating several victims at once.
(ii) Where the victim is kidnapped and sexually penetrated for a number of days.
(iii) Where the single victim is sexually penetrated by more than one offender.
(iv) Where the victim is sexually penetrated more than once over a period of time by the same offender.
(v) Where the victim suffered serious physical injuries that is life threatening and may result in some long-term disability.
(vi) Where the victim suffered immense psychological trauma that has the potential to permanently affect his/her normal way of life.
(vii) Where there is evidence of a serious breach of trust and violation of relationship and dependency.
(viii) Where the offender is a repeat offender with prior convictions of serious offences such as murder, rape or armed robbery.
9. In the present case the victim was penetrated by more than one offender and she suffered some physical injuries to her genital area hence, it is an aggravated sexual assault.
10. The aggravating and mitigating factors and circumstances of the present case are as follows:
11. I referred to some comparable case laws on sentences for sexual penetration offences which are listed below:
The sentencing guidelines for rape cases was set in the case of John Aubuku v The State [1987] PNGLR 267 suggesting starting points based on the circumstances of aggravation. The guidelines were adopted and applied in many subsequent cases.
(i) State v Kunija Osake [2003] PGNC 121; N2380
Offender was sentenced to 18 years on a plea of guilty for raping a 11 year-old girl. There was a breach of trust and relationship as brother and sister-in-law. The victim suffered physical injuries to her genital area.
(ii) State v Pais Steven Sow [2004] PGNC 181; N2588
Offender was sentenced to 15 years for raping a married woman in the presence of the two of the victim’s small children. The offence was committed in a breach of trust situation.
(iii) Lawrence Hindemba v The State [1998] PGSC 48; SC593
The Appellant appealed against 10 years sentence imposed after he pleaded guilty to the rape of a small 10 year-old girl. The Appellant grabbed the victim when she was returning home from school and took her into the nearby bush and threatened with a pocket knife and raped her. Victim suffered serious injuries in her genital area.
The Supreme Court considered 10 years imposed by the National Court as “manifestly inadequate” and dismissed the appeal and in the exercise of its powers under section 23 (4) of the Supreme Court Act (Ch 37) increased the sentence to 15 years.
12. The prisoner is 43 years old and comes from Nenja village, Poroma, Southern Highlands Province. He currently lives with his cousin brother at Malilimi Plantation with his wife and four children.
13. The prisoner was employed with NBPOL at Bebere Plantation as a harvester in 2019 until he committed this offence. Currently, he has no job and is supported by his cousin brother. They have a family’s five-hectare oil palm block and his cousin brother runs a PMV business.
14. In the Pre-Sentence Report, the Probation Officer assessed the prisoner to be a suitable candidate for probation but left it to the discretion of the Court to decide on the appropriate penalty.
15. In the present case the aggravating factors and circumstances have rendered the mitigating factors completely insignificant. I say this because:
(i) Threats of violence was used.
(ii) The victim suffered physical injuries in her genital area.
(iii) Prisoner and his co-accused took turns in raping the victim that amounts to a pack-rape.
(iv) The victim was young and experienced a lot of pain following the rape.
(v) Victim feels violated, degraded and ashamed of been a victim of rape.
(vi) The continuing feeling of insecurity and the fear of sexual transmitted disease (STD) or pregnancy.
(vii) Victim was psychologically traumatized from this incident and has withdrawn from school.
(viii) Victim was stripped naked and had to escape to seek help.
I. ALLOCUTUS
16. In his allocutus the Prisoner said:
“Your Honour, I have broken the laws of this country. What I have done to the victim, I say sorry. I say sorry to my lawyer, the State lawyer and the Court. This is my first time in court. This is not planned but a spur of the moment thing. I ask the Court to have mercy on me and put me on probation or give me good behaviour bond. That is all.”
17. The seriousness of the offence demands tougher penalties on sexual predators, deviants and sadists like the offender who preys on young, innocent vulnerable members of the community such as the victim for sexual gratification. A sentence with a strong deterrent effect is necessary to send a clear message not only to the prisoner himself but also to other like-minded and would-be offenders that they can expect the same if they commit the similar offence.
18. I make the following Orders:
(i) I sentence the Prisoner toTwelve (12) years imprisonment with hard labour.
(ii) Pursuant to Section 3 (2) of the Criminal Justice (Sentences) Act 1986, I deduct Seven (7) months for the pre-trial custody period.
(iii) Prisoner will serve the remaining balance of Eleven (11) years and Five (5) months IHL.
(iv) No suspended sentence.
Orders accordingly.
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendant
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