N9939

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 227 OF 2021

THE STATE

V

NELSON BAKA

Kokopo: Suelip AJ
2020:  9th & 30th September

CRIMINAL LAW - sentence – plea – rape s. 347(1)(2) Criminal Code – anal sexual penetration – circumstances of aggravation – State invokes s.349A(b)(e) – some remorse – favourable presentence report – sentence of 15 years.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
State v. Peter Paitapo [2014] N5638
State v. James Yali (2009) N2989
John Aubuku -v- The State [1982] PNGLR 267
The State -v- Joe Kanau Tomitom (2008) N3301
The State -v- Benson Kekene (No.2) [2014] N5768
Lawrence Hindemba v The State [1998] SC593 
State v. Spinda Kwatou Matangewana [2016] N6420
State v. Simon Majoge CR. No. 1212 of 2013 (unreported)

Counsel

T Kametan, for the State
S Pitep, for the Prisoner  

SENTENCE

30th September, 2021

1.	SUELIP AJ:	On 16 August 2021, the prisoner pleaded guilty to one count of aggravated rape, thus contravening section 347(1)(2) of Criminal Code. He was convicted accordingly. 

2.	This is now my ruling on sentence.

Facts	

3.	The facts are that on an unknown date between the 1 April 2020 and 30 April 2020, the prisoner was at Vunapalading Block, Inland Baining LLG, Gazelle District, East New Britain Province. On the said date and place, he took his wife Rita Malken (the complainant) inside the house, bashed her up and then sexually penetrated her by introducing his penis into her anus. She felt a lot of pain. His actions contravened section 347 (1) (2) of the Criminal Code, in that he sexually penetrated another person without her consent. The State invokes s.349A of the Criminal Code for the circumstances of aggravation under s.349A(b) where he threatened to use a weapon, and s.349A(e) where he abused his position of trust, authority, and dependency as the husband of the complainant. 

The offence

4.	Section 347 of the Criminal Code states: 

	347.	DEFINITION OF RAPE

(1) 	A person who sexually penetrates a person without his consent is guilty of a crime. 

	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.”

5.	The circumstance of aggravation in the offence which the prisoner pleaded guilty to is provided under section 349A of the Criminal Code. This provision is reproduced hereunder: -

	349A. INTERPRETATION

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where – …
	
(b) at the time of, immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or…
	…

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

6.	The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. 

7.	The prisoner’s personal particulars are these. The prisoner is 32 years old and resides at Hetwara section, Vunapalanding 3, Inland Baining LLG, Gazelle District of East New Britain Province. He is originally from Wosera Gawi District, East Sepik Province. He is married to the complainant since 2012 and they have a son. The prisoner is the second born child and have 4 other siblings. He never completed grade 1 and so he is illiterate. He moved to the East New Britain Province to seek employment opportunities where he worked short periods in plantations. His parents are still alive, but they are old.

8.	The Antecedent Report records no prior convictions against him and so he is a first-time offender. 

9.	During allocutus, the prisoner apologised to God, this Court and to everyone in the courtroom. He also apologised to his wife, the community and his family. He said the victim is his wife. He said his father has paid bride price and his wife’s brother got the bride price but failed to repay a loan of some sort to the husband of his wife’s elder sister. He said he was then forced to do what he did to his wife. He begged for the Court’s mercy and asked to be placed on probation for purposes of reconciliation and to apologise to his wife.  

Mitigating and Aggravating factors

10.	In his favour, the mitigating factors are: -

(i)	he is a first-time offender and have no prior convictions
(ii)	he pleaded guilty thus, saving the Court’s time and resources 
(iii)	he cooperated with police
(iv)	he is willing to pay compensation 
(v) 	he expressed some remorse

11.	Against him, the aggravating factors are: -

(i)	he threatened to use a weapon
(ii)	he used violence 
(iii)	he abused his position of trust, authority and dependency
(iv)	his wife suffers from the trauma and stigma of being raped
(v)	prevalence of offence in society

Submissions on sentence

12.	The maximum penalty for the offence of rape is 15 years but where there are circumstances of aggravation, the maximum penalty is life imprisonment subject to section 19 of the Criminal Code. 

13.	Counsel for the prisoner argued that this is not a worse type case to warrant the maximum penalty and refers to the case of Goli Golu v The State [1979] PNGLR 653. She further argued that the starting point for aggravated rape is 15 years and refers to some cases including the case of State v. Peter Paitapo [2014] N5638. In that case, the Court said the starting point for aggravated rape is 15 years. Counsel for the prisoner also referred to the case of State v. James Yali (2009) N2989 where the Court sentenced the accused to 12 years for the offence of rape.

14.	In conclusion, the prisoner’s counsel argued that in light of the mitigating factors which balance out the aggravating factors, a head sentence of 13 years is appropriate for him minus his presentence term. She adds that the Court can also suspend part of the sentence in its discretion because of his favourable presentence report. 

15.	The State, on the other hand argued that this is a serious case where violence is involved when he threatened his wife with a bush knife before he assaulted and raped her. 

16.	As sentencing guidelines, the State’s counsel cited the following case precedents: -

(i)	John Aubuku v. The State [1982] PNGLR 267, where the Supreme Court said that an offender who commits rape without aggravation should be sentenced to 5 years and upwards and for those who commit rape with circumstances of aggravation, life imprisonment should be considered. The Supreme Court affirmed the sentence of 10 years for the offender. 

(ii)	The State -v- Joe Kanau Tomitom (2008) N3301 where Justice Kandakasi (as he then was) observed that sentences for rape has increased in recent years whereby aggravated rape now attracts sentences over 15 years imprisonment, and more serious cases involving gang rapes after abduction of a victim and the use of weapons have increased sentences of up to 25 years. 

(iii)	The State v. Benson Kekene (No.2) [2014] N5768, late Justice Lenalia also observed that the sentencing trend in more recent rape cases have increased and factors such as: victims of young ages; or where there has been threatened force on and injuries caused to the victim; or where there has been abduction; should attract sentences in the range of 15 years to 20 years. His Honor stated that in order to achieve the intention of the parliament, Courts need to follow Lawrence Hindemba -v- The State [1998] SC593 with some adjustment as to the circumstances and extend the range upward where there are multiple factors of aggravation, which has been the trend followed so far in many cases. 

17.	As comparable cases, State counsel referred to State v. Spinda Kwatou Matangewana [2016] N6420 where the prisoner pleaded guilty to one count of rape pursuant to section 347(1)(2) of the Criminal Code. After an argument with his wife, the prisoner shoved lime into his wife’s vagina and then pushed a size “D” battery into her vagina. He was sentenced to 8 years imprisonment.

18.	The State also referred to the case of State v. Majoge CR. No. 1212 of 2013 (unreported) where the offender beat up his wife before sexually penetrating her vagina with his penis. After that, he beat her up and again. He was sentenced to 11 years imprisonment with no suspension.

19.	In conclusion, counsel for the State says that like the Aubuku’s case, this case also warrants an immediate custodial sentence on the basis of the prevalence of the offence and to serve as personal and general deterrence. She therefore submits that a sentence of 15 years is the appropriate sentence for him as the starting point. She says that the Court may increase or decrease from the starting point depending on the aggravating and mitigating factors. 

Consideration 

20.	I consider this not a worst type case and so it does not attract the maximum penalty of life imprisonment.  However, the fact that the prisoner used a weapon to threaten his wife, then he used force to have anal sexual penetration without her consent is probably the worse sexual act he can do to his spouse. It shows the prisoner has little or no respect for her as a human being, his wife and the mother of his child. This kind of character is inhuman and should not be tolerated in society. He has seriously abused his position of trust, authority and dependency. Although his wife is an adult, she is still vulnerable and is susceptible to emotional and psychological trauma which not only can cause physical harm but often increases insecurities. 

21.	Although the mitigating factors appear to balance out the aggravating factors, the circumstances of aggravation of the offence makes it more serious. 

22.	In the presentence report, only the views of his wife and the community leader of his village were engaged. Whilst the prisoner’s wife says she wants him home for the sake of the family, she does not say anything about her personal view regarding what he did to her. I consider the safety of the prisoner paramount. I asked the prisoner’s counsel if it is safe for his wife if he was to return home. He counsel says it is safe, but my conscience tells me otherwise. I am of the view that it is too early to return the prisoner to society, especially to his immediate family. His continued incarceration will not only give him time to reflect on the wrong he did and rehabilitate him, but it will also give his wife time to heal from the trauma. Further, it will send a warning to the public that such an act is unacceptable, and any perpetrator is subject to jail time, even life imprisonment in the worst case.  

23.	As regards the view of his community leader, he speaks highly of the prisoner and says he is a helpful and courteous young man who has a clean record with the law. Be as it may, this report is uncomprehensive as it fails to engage the views of other family members of the prisoner’s wife or his family and other community or church leaders. 

24.	In the report, he also said that he intends to pay K200 only as compensation to his wife. This is a ridiculous amount to show his remorse. He said although him and his siblings are close, they may not be willing to assist the prisoner pay for compensation. This will not assist him to pay a reasonable amount of compensation to show his remorse if compensation was ordered.

25.	Another thing that strikes me is this. During allocutus he said he was pressured to do what he did to his wife because of someone else’s failure to repay a loan. This is the most bizarre reason for raping his own wife. There is no logic in his explanation, and I reject that explanation without any consideration towards your sentence. 

26.	 Having considered all submissions, I agree with the State’s submission that this case warrants custodial sentence to serve as personal and general deterrence as this offence is fast becoming prevalent in society. 

27.	I am therefore satisfied that the appropriate penalty for the prisoner for the charge of aggravated rape is a sentence of 15 years. 

28.	Section 3(2) of the Criminal Justice (Sentence) Act 1986 gives the power to this Court to deduct your pre-sentence custody time. Hence, a term of 1 year and 5 months is deducted from 15 years. The balance will be spent in custody at Kerevat in hard labour. 

Orders

29.	The Orders of the Court are as follows: -

(1)	He is sentenced 15 years imprisonment in hard labour. 

(2)	His custody period of 1 year and 5 months is deducted.

(3)	He shall serve balance of his sentence at Kerevat Correctional Institution.

________________________________________________________________
Public Prosecutor:		Lawyer for State
Public Solicitor: 		Lawyer for Prisoner