The State v Alphonse Apou Dioro ('Prisoner') (2003) N2431

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 25 July 2003
• Court: National Court
• Citation: (2003) N2431
• Year: 2003
• Judgement Number: N2431

Full Title: The State v Alphonse Apou Dioro ('Prisoner') (2003) N2431

National Court: Davani J

Judgment Delivered: 25 July 2003

N2431

IN THE NATIONAL COURT ]

OF JUSTICE AT WAIGANI ]

PAPUA NEW GUINEA ]

CR 478 OF 2003

THE STATE

V

ALPHONSE APOU DIORO

(‘Prisoner’)

Waigani: Davani .J

2003: 16, 24, 25 July

Practice and Procedure – Criminal Law – Sentences – Rape – Gang/Pack rape – Plea – Aggravating factors – mitigating factors – planned pack rape of 15 year old girl over several hours using bush knives, guns and assorted weapons – sentence of 16 years.

Cases cited:

• State v Anis Noki [1983], PNGLR 426;

• State v Peter Kaudik [1987] PNGLR 201.

L. Tabie for the State

J. Mesa for the Prisoner

DECISION

(on sentence)

25 July 2003

DAVANI .J: On 25.7.03, I handed down a verbal decision and informed counsel that I would later present a detailed written judgment. This I do now.

The Prisoner pleaded guilty to one count of Rape that he on 20th August 2001 at Laloki, raped a female aged 15. In the Record of Interview with the Police, the Prisoner said he did not know his age. His lawyer submitted he could have been 14 at the date of the offence which makes him 16 or 17 at the date of trial. On my observations, he has the physical characteristics of a young man. I find he may be between 18 and 21 years.

The evidence is that about 3 am in the morning of 20.8.01, about 9 to 10 men broke into the victim’s home. They were armed with axes and bush knives. They physically assaulted her father using a bush knife and other weapons, rendering him unconscious. They then tried to drag away his 2 daughters resident in that flat but only managed to drag away the oldest one. They dragged the victim away, then assaulted her with a piece of wood after which they pointed a bush knife at her stomach and dragged her away. They threatened to kill her with an axe and a bush knife if she screamt for help. The evidence shows they were armed with bush knives, axes and home made guns. They subjected her to continuous rape and other vulgar acts throughout the night after which they released her in the early hours of the morning. She said there were many men who took turns raping her. The evidence shows that the victim felt a lot of pain in her genital area whenever the acts of sexual intercourse occurred. She said she recognized the prisoner because he was a regular visitor to the compound her family and her were resident in. The evidence shows that after the prisoner and his accomplices left the victim, it was about 6am. She was left on a stretch of a road some kilometers away from her home. She walked home from there.

The evidence shows that the victim was subjected to horrific gang rape by several men. She endured a lot of physical pain. In fact, the medical report conducted on the victim showed there to be tears of various lengths in the genital and vaginal area.

The evidence also shows that the rape was planned because the Prisoner knew the victim and her family and where they lived. The evidence is that he guided his accomplices to the victim’s home that fateful night.

I have heard this is the Prisoner’s first offence and his plea of guilty saved the court time. He also said he is sorry for what he has done. However, the aggravating factors outweigh the mitigating factors in this case. It is a known fact that I take judicial notice of, that gang rapes are now a common occurrence in Papua New Guinea.

Sentencing must reflect the nature of this crime, and any crime for that matter. In the case of the State v Peter Kaudik [1987] PNGLR 201, judgment delivered on 8 June 1987, by Amet .J as he then was, the court discussed various factors to be relied on when sentencing. These were;

1. Violence is used over and above the force necessary to commit the rape;

2. A weapon is used to frighten or wound the victim;

3. The rape is repeated;

4. The rape has been carefully planned;

5. The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

6. The victim is subjected to further sexual indignities or perversions;

7. The victim is either very old or very young;

8. The physical or mental effect upon the...