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State v Nandiro (No.2) [2004] PNGLR 5 (22 June 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

HENRY NANDIRO (NO. 2)

WEWAK: KANDAKASI J

21 & 22 JUNE 2004

CRIMINAL LAW – Sentence – Armed gang rape of 14 year old girl – Conviction after trial – No prior conviction – Physical injuries to victim – Prevalence of offence – Meaning of recent amendments to penalty provision – Aggravated rape sentence start at 15 years – Sentence to reflect recent legislative changes – Sentence of 20 years imposed – Criminal Code ss. 347(1).

Facts

The accused was charged with a count of rape of a fourteen year old girl.
The accused was in a group of men when they abducted the victim. He used a bush knife as a weapon to abduct the victim and raped her. The victim was with a male friend when she was abuducted.

The accused was found guilty and convicted.

Held on Sentencing

The circumstances surrounding the commission of the crime of rape are aggravating and warrant a term of imprisonment of twenty (20) years with hard labour. That term is to be reduced the length of time spent in custody.

Papua New Guinea cases cited

John Aubuku v. The State [1987] PNGLR 267.
Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593.
Mary Bomai Michael v. The State (Unreported judgment delivered on 01/04/04) SC737.
Public Prosecutor v. Don Hale, (1998) SC564.
The State v. Donald Angavia & Ors [2004] PNGLR 432.
The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.
The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) CR1483of 2003
The State v. Flotyme Sina (Unreported judgment delivered on 21/05/04) N2541.
The State v. Ian Napoleon Setep (Unreported judgment delivered on 18/05/01) SC666.
The State v. Irox Winston, (Unreported judgment delivered on 13/03/03) N2347.
The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.
The State v. Luke Sitban (No.2) (Unreported judgment delivered on 11/06/04) N2566.
The State v. Pais Steven Sow (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003.
Thomas Waim v. The State, (02/05/97) SC519.

Counsel

J. Wala, for the State.
L. Siminji, for the Prisoner.

22 June 2004

Kandakasi j. Yesterday, the Court found you guilty and convicted you on one charge of rape of a then 14 year old girl on 30 March 2001 contrary to section 347 of the Criminal Code.

After your conviction, the Court asked you to address it on your sentence. You said sorry for raping the victim and said you will go and marry the victim at the end of serving your sentence.

The relevant facts are fully set out in the decision on verdict delivered yesterday. Therefore, it is not necessary to restate them except to note the few relevant ones for the purposes of determining an appropriate sentence for you. Firstly, the victim was 14 years old at the time of your offence. You were married and therefore an adult. Hence, there was a huge age difference.

Secondly, you were in the company of three other boys or men. Of these men, two of you raped the victim. You and your group of men armed yourself with a bush knife. You were the one who carried and used the bush knife against the victim.

Thirdly, the victim was with a friend and they were on their way to a dance in a village. They took a ride in your canoe for you to take them to the place where the dance was held. Instead of taking them to the dance place, you took them away to a different place far away in the middle of the night. You kept her and her friend late into the night at about 12:00 midnight. You therefore adducted the victim when you took her to a destination she did not intend to go at the first place.

Fourthly, at the time of forcefully having sexual intercourse with the victim, you and your accomplice handled the victim roughly. Consequently, she sustained physical injuries to her vagina resulting in continuous bleeding even for more than a day after the rape on her.

Finally, you have not paid the victim and her relatives any compensation and have certainly not said sorry to them. Further, this was necessary particularly, when the victim was in your village with her parents because of her father providing a vital service to the community. He was the Aid Post Orderly at your village, taking care of your people's medical problems or needs. Your sexual attack on the victim demonstrates no appreciation of the services, her father was providing for the vast majority of the people in the village and or community.

With these facts in mind, I now turn to consider the offence itself, more particularly, the sentencing trend and tariffs in this kind of cases.

The Offence and Sentencing Trends

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, creates and defines the offence of rape in these terms:

"347. Definition 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."

I considered what could be the meaning and or purpose of this amendment to the law in The State v. Donald Angavia & Ors, [2004] PNGLR 432.

There I expressed the view that the amendment means:

"... [W]here a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors ... the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because, it makes no difference between the previous position and the new provisions."

I referred to that judgment and the considerations leading to that view in the judgment, I recently handed down here in this circuit in the case of The State v. Luke Sitban (No.2), (Unreported judgment delivered on 11/06/04) N2566. The consideration started with the guidelines set by the Supreme Court judgment in John Aubuku v. The State [1987] PNGLR 267. I also had regard to the subsequent judgments, which varied those guidelines especially in the tariffs as in Thomas Waim v. The State (02/05/97) SC519.

In that case, the sentence increased to 18 years on a guilty plea in a worse case of gang rape, in 1997. I followed this trend to Supreme Court judgment in Lawrence Hindemba v. The State, (Unreported judgment delivered on 27/10/98) SC59 in 1998, almost a year later, which increased a sentence of 10 years to 15 years. That was also in a case of guilty plea. The judgment reviewed the sentencing trends and noted that:

"These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

This trend of increasing sentences carried into the year 2001 with my judgment in The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.

In that case, I imposed a sentence of 17 years for rape of a schoolgirl in breach of a trust relationship after a trial. Despite the increase in sentences, the offence of rape did not decreased both in its frequency and prevalence as well as its severity. Hence, last year, Jalina J in The State v. Kunija Osake [2003] PGNC 121; N2380 imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

In the same year 2003, I noted that the Supreme Court in The State v. Ian Napoleon Setep [2001] PGSC14; SC666 reduced a sentence of life imprisonment to 25 years. That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant's wife. The Supreme Court applied the no "quantum leap" principle in Thomas Waim v. The State.[1997] PGSC2; SC519. At the same time, however, the Court accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment for rape cases.

I noted also that the public is calling for increased sentences for such serious offences as rape. I had regard to the Supreme Court judgment in Public Prosecutor v. Don Hale [1998] PGSC 26, SC564 and my own judgment in The State v. Irox Winston [2003] PGNC146; N2347 which make it clear that criminal sentencing is a power the Court exercise on behalf of the people. As such, the Courts must be responsive to the calls of the community whilst exercising care not to allow themselves to be unduly influenced by such public calls.

Finally, I noted that I tried to accommodate the calls of the community in my recent judgments such as the one in The State v. Eki Kondi & 4 Ors (No.2).[2004] PGNC226; N2543. There, I imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively to a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences were given in view of the different roles each of the offenders played and their ages.

I followed that trend in The State v. Flotyme Sina,(No 1) [2004] PGNC228; N2540 last month in Goroka. There, I imposed a sentence of 17 years. Before arriving at that sentence, I had regard to the sentencing trends and tariffs as set out above. That was in a case of one on one rape of a married woman. The prisoner used a bush knife to threaten and secure a forceful sexual intercourse with the victim. A small amount of compensation to avoid trouble was paid by the prisoner's side to the victims side. After the Court found him guilty, the prisoner said sorry to the Court for taking its time and putting the victim to further trouble in coming to the Court and reliving the attack on her.

The most recent following of this trend is the judgment during this circuit in The State v. Luke Sitban (No.2).[2004] PGNC 206; N2566. There it was a case of an adult raping a schoolgirl. He used no weapons and he was convicted after a trial. There was also no evidence of any physical injury to the victim. The sentence imposed was 17 years.

Sentence in Your Case

Both your lawyer and that of the State correctly submitted and I accept that an appropriate sentence should be one between the ones imposed in, The State v. Eki Kondi & 4 Ors (No.2) [2004] PGNC226; N2543 at the highest, and the case of The State v. Luke Sitban (No.2) [2004] PGNC 206; N2566 at the lowest. This is because you pleaded not guilty and was convicted after a trial. You committed the offence in a gang rape situation with injuries caused to the victim. You armed yourself and used a bush knife to threaten and secure the submission of the victim. You committed the offense in circumstances amounting to abduction and other aggravating circumstances as noted at the outset of this judgment.

Before arriving at an appropriate sentence for you, I note your saying sorry for committing the offence and indicating an intention to marry the victim at the end of serving your sentence. That you maintain despite being married already. I also note you are aged 24 years old. Your father is dead but your mother is alive. You are the last in a family of 2 brothers and 3 sisters and come from Mundomundo village in the Angoram District of this Province. Further, I note, you follow the Catholic Church. You have no formal education and therefore have no formal employment.

You were arrested on 1 April 2001 and have since been kept in custody since then. That translates to 3 years and 3 months. This will have to be deducted from the sentence the Court finally decides to impose against you.

The only thing in your favour is you being a first time offender. That means you have been free from any trouble with the law since birth until this trouble.

Against your only factor in your favour are a number of other factors against you. Firstly, the offence of rape is on the increase and that it is a very prevalent offence as noted already. This is despite the increase in the kind of sentences imposed to date. I note there is rightly no dispute by you through counsel that this is the case. Given the numerous calls for stiffer penalties throughout the country, Parliament has now intervened as also noted above. The onus is now on the Courts to similarly act.

Secondly, you pleaded not guilty to the charge, without having any good basis to put the State and the Court to the expenses of conducting a trial when you had no evidence to challenge the charge and its basis. Your denial of the charge also meant the victim had to come into Court and relive in a courtroom filled with strangers and her assailant what you did to her. She was in that way forced to face embarrassing questions going into, a matter, people in our society would find hard to talk about. Indeed, she had great difficulty trying to describe the act of sexual intercourse, as she was embarrassed to do so readily.

Thirdly, you were much older than the victim was. She was only a young girl. You in a way abducted her and kept her far away from home late in the night and forced her into sexual intercourse with you and your accomplish. You committed this offence against a family who had come to your village to provide vital medical services to your people. Instead of looking after his family, you attacked it in a more serious manner. Then after the Court has found you guilty you expressed no genuine remorse and instead maintain an appearance of arrogance in saying you will marry her at the end of your sentence.

I find that the factors in aggravation far outweigh the only factor in your mitigation. I also take into account, the sentencing tariffs, the community's reaction to the offence and the kind of sentence imposed to date. I further take into account the reasons for the amendments the highest authority of the land Parliament has introduced to s.347 of the Code, in so far as it confirms the trend of increasing sentence beyond 15 years for aggravated rape as in this case.

Taking all of these factors into account, I note that the facts in your case are less serious than the one in The State v. Eki Kondi & 4 Ors (No.2) [2004] PGNC226; N2543 but is more serious than the case of The State v. Luke Sitban (No.2) [2004] PGNC 206; N2566. Accordingly, a sentence in between the sentences imposed in these cases respectively of 25 years at the maximum in the former and 17 years in the later, is appropriate. In the particular circumstances of this case, I consider a sentence of 20 years appropriate and I impose it. Of that, I order a deduction of the period of 3 years and 3 months you spent in custody awaiting your sentence. That leaves you with a balance of 16 years and 9 months, which I order you serve in hard labour at the Boram Correction Services.

Lawyers for the State: Public Prosecutor.
Lawyers for the Accused: Public Solicitor.