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State v Sikai [2024] PGNC 16; N10660 (19 February 2024)

N10660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 514 OF 2021

THE STATE

V

ELVIS SOLO SIKAI

Waigani: Miviri J
2024: 09^th & 19^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – S347 CCA sexual penetration Without Consent Two Counts – 20-Year-Old Biological Sister – Prisoner Biological Brother – Repeated Offences – Trial – Victim Reliving Trauma of Offence – Protection of Family – Prevalent Offence – Strong Deterrent & Punitive Sentence – Separate Offence Cumulative Sentence – Principles of Totality – 6 years IHL first Count – 20 years IHL Second Count – 20 years IHL Third Count – 46 Years IHL – 16 years IHL reduced on Totality – 30 years IHL minus remand in Jail.

Facts

Prisoner biological Brother of complainant assaulted her and penetrated her vagina with his penis and had sexual intercourse with her. He did this twice.

Held

Crime of Violence.
Perpetrated on Biological Sister.
Breach of Trust Dependency Authority.
Protection of Victim Girls women.
Strong Deterrent Punitive Sentence.
6 years IHL first Count
20 years IHL Second Count
20 years IHL Third Count
Cumulative sentence 46 years IHL
16 years reduced on Totality.
30 years IHL.

Cases Cited:
Golu v The State [1979] PNGLR 653
Penias, The State v [1994] PNGLR 48
Aubuku v The State [1987] PNGLR 267
Hindemba v The State [1998] PGSC 48; SC593
Meaoa v The State [1996] PNGLR 280
Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000)
Tardrew, Public Prosecutor v [1986] PNGLR 91
Waim v The State [1997] PGSC 2; SC519
Kumbamong v State [2008] PGSC 51; SC1017
State v Balal (No 2) [2005] PGNC 132; N2821
State v Winga (No 2) [2005] PGNC 7; N2958
State v Kaski (No 2) [2022] PGNC 432; N9791
Mase and John v The State [1991] PNGLR 88
Public Prosecutor v Sidney Kerua [1985] PNGLR 85
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Counsel:

E. Kariko, for the State
B. Popeu, for the Defendant

SENTENCE

19^th February 2024

1. MIVIRI J: This is the sentence after trial of Elvis Solo Sikai of Kerapi village, Ialibu, Southern Highlands who sexually penetrated his biological sister without her consent twice.
   
2. He was charged with two counts of sexual penetration without consent pursuant to section 347 of the Criminal Code in each case of rape reading; “(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. Circumstances of Aggravation were invoked pursuant to section 349A (f) in each of the counts that were preferred against him. In particular, he was charged and convicted that he was a member of the same family as the complainant in that he is the biological brother of the Complainant. First Count pursuant to section 349 (1)(a)(4) sexual touching invoked the same, so too the two counts of sexual penetration. In the first the sentence is a term of imprisonment not exceeding 10 years. In the second and third Counts the sentence is the maximum of life imprisonment, subject of course to section 19 of the Code. And read together with section 347 (1) the minimum starting point has been set as 15 years increasing or decreasing with the aggravating and mitigating features weighed. Including any extenuating circumstances. Because both have been sustained in the convictions in each count, the sentence will reflect that fact. I do hold that this is not the worst case of rape and so the maximum will not follow, Golu v The State [1979] PNGLR 653. But certainly, a determinate term of years will be imposed for the crime.
   
4. The facts on arraignment well set out in the Judgement on verdict. It is not necessary to repeat except to sum that the first act of sexual penetration by the prisoner upon his sister occurred on the 03^rd June 2020 at Hohola 3 in a one bedroom where both shared. The wife of the prisoner had been sent back to Ialibu by the Prisoner who was living with the sister. On that night at about 2.00am he came to the house drunk and laid beside her and touched her breasts without her consent and then fell asleep.
   
5. Then on the 07^th June 2020 again during the early hours of the morning the sister was asleep and awoke when he touched her waist. She struggled but he overcame her. Her begging did not desist. He held her vagina inserted his finger into her vagina without her consent. Then he inserted his penis into her vagina and had sexual intercourse ejaculating into her vagina. This was without her consent. Shortly thereafter for the second time he inserted his penis into her vagina without her consent and then ejaculated within. She was afraid of him but did not overcome him despite struggling. He went off to sleep and she escaped reporting the matter to her neighbour who confronted the prisoner and took him to the Police.
   
6. He denied the allegations and so she was made to recount all on oath in court, reliving that trauma before the Court. Blood sister telling what the prisoner her blood brother had done to her. It is not a light matter to be settled. It must be reflected in the sentence that is passed upon the prisoner. The family is the basic unit of society. And siblings in that family must be protected against each other. The family must be a safe and secure unit. It is the corner stone of society. From it come the members of the Community, Province and the State. The conviction establishes a very serious breach of the relationship of blood sister and brother. Both are siblings of the same union. It is the crime also of incest and here force was used to attain penetration of the vagina of the complainant sister. It is determined and undeterred in the home where they were brother and sister, the act of unlawful and indecent assault, does not end but culminates in sexual penetration without consent. There are two acts. He is the elder in their family. He would be at the forefront to protect her. Instead, he is at the helm and violated her so grievously without remorse for his actions. These establish a stern and punitive sentence to follow against him.
   
7. He will not shelter under the fact that he was intoxicated by alcohol. Because that is self-induced at his own volition section, 29 Criminal Code Act. And it does not in my view mitigate the offence that he has committed upon his blood sister. Added to this fact is that he is a 31-year-old married man with two young children aged 8 years and 3 years old. In committing the offence, he did not respect his wife and direct his sexual urges to her. She was not immediately there, but in respect he could have waited. He is an educated person to grade 12 at the Sogeri National High School. Then succeeded in obtaining a diploma in IT with Datec leading to his employment with Vitis Manufacturing. He was contributing successfully to the upkeep of his family at that time. It did not deter him that the offence he was set on committing was against his own blood sister. He persisted initially assaulting her and then proceeded to the two acts of sexual penetration without her consent. She will leave with the imprint that he has set upon her of that wrong. No sentence will erase and give her a new clean slate without that fact. It will remain until her natural life ends: Penias, The State v [1994] PNGLR 48. I take due account of the victim impact statement dated the 20^th June 2023. Particularly where she states, “It makes me feel depressed, abandoned, and unwanted. It makes me feel it was my fault that this happened, even though I did not do anything wrong.”
   
8. To my mind it is clear, he had no heart except his own sexual gratification. The violent acts that he exerted upon her contribute that a stern deterrent sentence is imposed. It is an offence in the very house she lived with him, her blood brother. It should never be the case that heartless crimes as here are committed within without sanction of the law. It must be stopped as it is inhuman and wrong against morality. Papua New Guinea society does not tolerate abuse of its female members. They are important members and have contributed meaningfully to society’s well-being. Here is a case of a blood brother who has treated his blood sister as a sex object. She is there for his gratification which misses that women and girls are also members of society also protected by the same Constitution that protects the male members of society. The application of the rule of law is equal regardless. These are material basis that must be addressed in the sentence now passed upon the prisoner.
   
9. In allocutus his education came out very clear in what he stated to the Court. He was a man, and he knew that his actions in the offence was wrong. “I feel the emotion. I apologise in eyes of the Court. It is a bad report to the family, the Court and Society. She will live with it for the rest of her life. I did not make it easy for her and the Court. I should not have done that; it wasted the Court’s time. I apologise to the Court, Justice and the lawyers, Miss Kariko. It was a bad thing for my action. I am so sorry. I am the Eldest in the family. I have a wife and two kids, 10 years old and 3-year-old, both are in school. I also have my elderly mother and four other siblings to whom I am the bread winner for all. I am just a man and I have done bad things in my life, so I deeply regret. I am just human. I am sorry for the Court, Lawyers, and Society. God has forgiven me. Have mercy.”
   
10. He knew very clearly the wrong that he had committed. It was his right to test the State evidence. It did not follow that it was insignificant by what he made out in his allocutus. Quite the contrary, it established a calculated crime that was committed with no heed for the blood sister: Aubuku v The State [1987] PNGLR 267 has laid out very good law that is applicable now. Particularly the facts of this case here where the act is repeated. And there are sexual indignities here, insertion of his finger into her vagina. The violence that is perpetrated immediately before the insertion of his penis into her vagina. The 15 years intimated in that case is now law by section 347 (1) set out above. That is the dictate of the legislature that I must adhere to in the determination of this sentence upon the prisoner. It makes perfect sense in the light of Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) read with Meaoa v The State [1996] PNGLR 280. In the former the initial sentence of 10 years appealed against by the appellant was increased 15 years for the crime of rape committed upon a 10-year-old girl who was on her way to school. And in the latter 14 years sentence initial given was confirmed and appeal dismissed of the rape of 12-year girl from the mountains of the Gulf Province who was saved from capsized dingy, taken onto the beach where appellant took advantage of her vulnerability and committed rape upon her.
    
11. Both seal that this is a very serious offence. One must always consider one’s life before stepping into crime. Because personal circumstances will not alleviate what is due in law upon drawn by his criminal conduct: Allan Peter Utieng -v- The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000). The allocutus and the personal circumstances pertaining to the prisoner will be weighed alongside with what is grave in the offence to arrive a proportionate sentence due the offender. He does not in this regard fit what is set out by Tardrew, Public Prosecutor v [1986] PNGLR 91. There is no material underlying that part of the sentence be suspended. It is an offence that is prevalent even with mercy that the Supreme Court has exercised in overturning a 25-year sentence for four counts of rape to 18 years in Waim v The State [1997] PGSC 2; SC519 (2 May 1997). The crime must be sentenced given its facts and circumstances. Tarriff and range is one of the matters to be considered, because it would be legislating to confirm to tariff and range: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
    
12. This Court has laid out that it is not out of the ordinary to impose 15 years imprisonment: State v Balal (No 2) [2005] PGNC 132; N2821 (25 February 2005). The aggravation features of the case have drawn higher sentences, State v Winga (No 2) [2005] PGNC 7; N2958 (26 September 2005). She was raped by her own uncle who was armed with a knife that he used upon her to commit the offence. She was a schoolgirl, and it was a very serious breach of trust. There were two acts of rape on a trial after which he was convicted. Nineteen (19) years imprisonment IHL was imposed. Which in my view is not outside the scope of current sentencing discretion of this Court: State v Kaski (No 2) [2022] PGNC 432; N9791 (20 July 2022). The facts here denote a very serious breach of trust authority and dependency between blood brother and sister. The elder takes advantage of the young committing this offence in the family.
    
13. Each offence is separated by time date and set apart one from the other. And sentencing will be in that regard as in Mase and John v The State [1991] PNGLR 88 where armed robbery abduction and rape was considered whether individual sentences were appropriate or cumulative and the totality principle’s (supra) followed the earlier cases of Public Prosecutor v Sidney Kerua [1985] PNGLR 85 and Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214. It is my view that the three offences are separate in time date and for the purposes of sentencing will draw their individual sentences upon separately one from the other. And will be cumulative not concurrent as in Mase (supra).
    
14. For the offence of sexual touching, circumstances of aggravation have been specifically pleaded out in the indictment. Therefore, the maximum sentence of imprisonment is not exceeding 10 years. Given he is a first time offender, on a trial, it was a very serious breach of authority and dependency as both were blood brother and sister. It will call for a serious and punitive sentence. I determine given that the proportionate sentence given is 6 years imprisonment in hard labour for the offence of sexual touching. Which in my view will be served cumulative to the second and third count. His sentence will be the sum total of all three counts.
    
15. I determine in view of all set out above that the second count of sexual penetration without consent with circumstances of aggravation pleaded proportionate to the gravity of his crime would be 20 years imprisonment in hard labour. That in my view would also fall for the third count, he is sentenced in respect of that count to 20 years imprisonment in hard labour. Both will be cumulatively served, so that is 40 years IHL cumulatively with 6 years IHL for the first Count. He is sentenced to 46 years IHL.
    
16. I consider that in the light of the principles of Totality, that would be disproportionate and excessive. Therefore, in the exercise of my discretion considering, I deducted from that sentence 16 years imprisonment, which leaves 30 years IHL that he must serve IHL for the offences. Time on remand will be deducted he will serve the balance in jail forthwith.
    

Ordered Accordingly.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant