The State v Donald Poni (2004) N2663

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 September 2004
• Citation: (2004) N2663
• Court: National Court
• Year: 2004
• Judgement Number: N2663

Full Title: The State v Donald Poni (2004) N2663

National Court: Kandakasi J

Judgment Delivered: 14 and 22 September 2004

1 CRIMINAL LAW—Verdict—Gang abduction and rape—Issue for trial—Identification—Witness identifying known offender by sight and voice recognition in the night—Accused raising belated alibi and attempting to prevent victim from pressing charge—State witness having no reason to testify falsely against accused—Identification evidence good and credible—Guilty verdict returned—s347 of Criminal Code.

2 CRIMINAL LAW—Sentence—Gang abduction and repeated rape—Use of a weapon—Offence committed in the middle of the night—Conviction after trial—No genuine remorse expressed—Prevalence of offence and need to deter—Sufficient warnings of increase in sentences already given—19 years sentence imposed—s19 and s347 Criminal Code.

3 The State v Emmanuel Bais (2003) N2416, The State v Peter Malihombu (29/04/03) N2365, John Jaminan v The State (No 2), [1983] PNGLR 318, The State v Luke Sitban (07/06/04) N2572, The State v Okata Talangahin (No 1) (11/06/04) N2581, Jimmy Ono v The State (04/10/02) SC698, The State v Marety Ame Gaidi (01/08/02) N2256, The State v Okata Talangahin (No 1) (11/06/04) N2581, The State v Luke Sitban (No 1) (07/06/04) N2572, The State v Garry Sasaropa & Ors (No 1) (27/04/04) N2565, The State v Eki Kondi (No 1) (2004) N2542, John Aubuku v The State [1987] PNGLR 267, Thomas Waim v The State, (02/05/97) SC519, Lawrence Hindemba v The State (27/10/98) SC593, The State v Eddie Peter (No 2) (12/10/01) N2297, The State v Kunija Osake (22/05/03) N2380, The State v Ian Napoleon Setep (18/05/01) SC666, Mary Bomai Michael v The State (01/04/04) SC737, The State v Luke Sitban (No 2) (2004) N2566, The State v Donald Angavia (No 2) (2004) N2590, Public Prosecutor v Don Hale (1998) SC564, Re Application by Anderson Agiru (2001) SC671, Application by John Mua Nilkare [1998] PNGLR 472, Avia Aihi v The State (No 1) [1981] PNGLR 81, The State v Irox Winston, (13/03/03) N2347, The State v Pais Steven Sow (25/03/04) N2588, The State v Junior Apen Sibu (No 2) (25/03/04) N2567, The State v Eki Kondi (No 2) (2004) N2543, The State v Garry Sasoropa (No 2) (2004) N2569, The State v Fredinand Naka Penge (2002) N2244; Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Kevin Anis (2003) N2360, Tau Jim Anis v The State (2000) SC642, The State v Lucas Yovura (2003) N2366 referred to

Decision on Verdict (14 September 2004)

Decision on Sentence (22 September 2004)

___________________________

N2663

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 552 of 2001

THE STATE

-V-

DONALD PONI

LORENGAU: KANDAKASI, J.

2004: 08th, 14th and 22nd September

CRIMINAL LAW –Verdict – Gang abduction and rape – Issue for trial - Identification – Witness identifying known offender by sight and voice recognition in the night – Accused raising belated alibi and attempting to prevent victim from pressing charge - State witness having no reason to testify falsely against accused – Identification evidence good and credible - Guilty verdict returned – Section 347 of Criminal Code.

CRIMINAL LAW – Sentence – Gang abduction and repeated rape – Use of a weapon – Offence committed in the middle of the night – Conviction after trial – No genuine remorse expressed – Prevalence of offence and need to deter - Sufficient warnings of increase in sentences already given – 19 years sentence imposed – Section 19 and 347 Criminal Code.

Cases cited:

The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.

The State v Peter Malihombu (29/04/03) N2365.

John Jaminan v. The State (N0.2), [1983] PNGLR 318.

The State v. Luke Sitban (07/06/04) N2572.

The State v. Okata Talangahin (No 1) (11/06/04) N2581.

Jimmy Ono v. The State (04/10/02) SC698.

The State v. Marety Ame Gaidi (01/08/02) N2256.

The State v. Okata Talangahin (No 1) (11/06/04) N2581

The State v. Luke Sitban (No 1) (07/06/04) N2572.

The State v. Garry Sasaropa & Ors (No 1) (27/04/04) N2565.

The State v. Eki Kondi & Ors (No 1) (24/03/04) N2542.

John Aubuku v. The State [1987] PNGLR 267.

Thomas Waim v. The State, (02/05/97) SC519.

Lawrence Hindemba v. The State (27/10/98) SC593.

The State v. Eddie Peter (No 2) (12/10/01) N2297.

The State v. Kunija Osake (22/05/03) N2380.

The State v. Ian Napoleon Setep (18/05/01) SC666.

Mary Bomai Michael v. The State (01/04/04) SC 737.

The State v. Luke Sitban (No 2) (2004) N2566.

The State v. Donald Angavia & Ors (29/04/04) N2590.

Public Prosecutor v. Don Hale, (1998) SC564.

Re Application by Anderson Agiru (08/10/01) SC671.

Application of John Mua Nilkare (15/04/97) SC536.

Avia Aihi v. The State [1981] PNGLR 81.

The State v. Irox Winston, (13/03/03) N2347.

The State v. Pais Steven Sow (25/03/04) N2588

The State v. Junior Apen Sibu (N0. 2) (25/03/04) N2567.

The State v. Eki Kondi & 4 Ors (No.2) (25/03/04) N2543

The State v. Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569.

The State v Fredinand Naka Penge (24/05/02) N2244; Allan Peter Utieng v. The State (Unnumbered Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

The State v. Kevin Anis and Martin Ningigan (07/04/03) N2360.

The State v. Lucas Yovura (29/04/03) N2366.

Counsels:

A. Kupmain the State.

A. Raymond for the Prisoner.

DECISION ON VERDICT

14th September 2004

KANDAKASI J: You stand charged with one charge of rape against the victim (named) on 24th July 1999 after abducting her from her house in the night here in Lorengau. You denied the charge saying, you were elsewhere and did not commit the offence. The issue for trial was therefore one of identification.

In view of your defence, your counsel correctly conceded that, you were in no position to dispute evidence on the commission of the offence as described by the State’s witnesses. The only contest you could legitimately raise was in relation to the allegation that you were the person who committed the offence. Accordingly, I note that the evidence clearly demonstrates that the victim was asleep in her parents’ house at Ward 1 here in Lorengau around 3:00am in the morning of 24th July 1999. Around that time, the victim was 17 years old.

The incident started with, a group of men numbering around five fronted up at the victim’s parents’ house on the date and time in question. This group of men called out for a girl by the name of Diana. The victim said she recognized the voice as that of yours. She said and you confirmed in your own evidence that, she knows you because you attended the same SDA church here in Lorengau. She identified you as a person of mix Sepik and Malapang, Manus Proivince, which you do not dispute.

On hearing the voices, the victim’s father, opened the door of his house, came out and met the group of men in the front of his house. There, the father testified that, he spoke to a Ralph Poksen. In that conversation, the group of men kept on asking for Diana even though the victim’s father told them that, the girl they were calling out for was not in the house. Soon thereafter, the victim’s father testified that, from the corner of his eye he could see in the light of an hurricane lamp that hung from the veranda of his house you, Donald Poni get around his back and knocked him down. On seeing what the group of men was doing to the victim’s father, the mother called out to the victim to get out of the house for her own safety. Accordingly, the victim tried to get out of the house and reach for the steps. As she stepped out, she fell into the hands of one of the members of the gang, namely Ralph Poksen.

The gang pushed her into the bushes near Ward 2. Once in the bushes, the rest of the boys left her in the hands of Ralph Poksen who took her toward Ward 3 and pulled her into a flower garden. There, he pushed her onto the ground, forcefully removed her cloths as well as his, opened her legs put his penis into her vagina and proceeded to have sexual intercourse with the victim without her consent. As soon as he finished, two...