The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Issac Sip (No 2) (2004) N2543

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 March 2004
• Court: National Court
• Citation: (2004) N2543
• Year: 2004
• Judgement Number: N2543

Full Title: The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Issac Sip (No 2) (2004) N2543

National Court: Kandakasi J

Judgment Delivered: 26 March 2004

1 CRIMINAL LAW—Sentence Gang abduction and rape—Broad daylight—Prisoners armed with bush knives—Threats of violence to third parties and commission of other offences—Conviction after trial—Pre–valence of offence—Community call for stiffer penalties—25 years imprisonment for leader, 22, 20 and 18 years for others depending on degree of participation and age imposed.

2 John Aubuku v The State [1987] PNGLR 267, Thomas Waim v The State (1997) SC519, Lawrence Hindemba v The State (1998) SC593, The State v Eddie Peter (No 2) (2001) N2297, The State v Kunija Osake (2003) N2380, The State v Ian Napolean Setep [1997] PNGLR 428, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, Winugini Urugitaru v R [1974] PNGLR 283, Goli Golu v The State [1979] PNGLR 653, Andrew Uramani v The State [1996] PNGLR 287 referred to

Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1451 & 1453 of 2003

THE STATE

-V-

EKI KONDI,

MIKE JOHN,

ALLAN NEMO,

KELLY SOP KONDI

& ISSAC SIP

(No.2)

VANIMO: KANDAKASI, J.

2004: 22nd and 26h March

DECISION ON SENTENCE

CRIMINAL LAW - Sentence Gang abduction and rape – Broad daylight – Prisoners armed with bush knives – Threats of violence to third parties and commission of other offences – Conviction after trial – Pre-valence of offence – Community call for stiffer penalties - 25 years imprisonment for leader, 22,20 and 18 years for others depending on degree of participation and age imposed.

Cases cited:

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.

The State v.Tony Pandau Hahuahoru (No.2) (21/02/02) N2186

Winugini Urugitaru v. The Queen [1974] PNGLR 283.

Goli Golu v. The State [1979] PNGLR 653.

Andrew Uramani & Ors v. The State [1996] PNGLR 287.

Counsel:

Mr. F. K. Popeu the State

Mr. D. Kari for the Accused

26th March, 2004

KANDAKASI J: On Wednesday this week, the Court convicted you all on one count each of abduction and rape. That was after a trial.

The Court asked you to address the Court on your sentence. All of you decided to leave that to your lawyer. The only exception to that was Kelly Sop Kondi who maintained his claim of innocence and asked for a lenient sentence.

Your lawyer has informed the Court of your respective personal and family backgrounds which I note and take into account before arriving at a decision on each of your sentences. These are in following:

Eki Kondi, you are 21 years old and married with a daughter now deceased. Out of your family, you are the third in a family of three sisters and three brothers. You are educated up to grade 9 and unemployed. Your parents are alive and you live with them in your village, Samararu. Police apprehended you for this trouble on 4th May 2003 and you have been in custody since then.

Next, Mike John you are single and 19 years old. You have a sister and that you are the second in a family of two children. You have no formal education and are unemployed. You live with your mother in your village at Samararu. You were also apprehended and remanded in custody since 4th May 2003.

As for Allan Nemo, you are also single and 20 years old now. You come from a large family of 10 children and that you are the ninth born. You have 5 sisters and 4 brothers. You have been educated up to grade 9 and are unemployed. Although you come from Samararu village, you live at the Wusipi Settlement. You were apprehended and remanded in custody since 4th May 2003 too.

Turning to Kelly Sop Kondi, you are 20 years old but married with 2 children aged 3 years and 2 years. In your family, you are the third born in a family of 5, 3 sisters and 1 brother. You did primary education up to grade 3. At the time of the offence and your apprehension on 4th May 2003, you were employed with Vanimo Forest Products. At that time, you were living with your family at Wusipi Settlement but originally you come from Samararu village. You have been in custody since your apprehension.

Finally, Issac Sip, you are 21 years old and single. You are the eldest in a family of 4 brothers and 3 sisters. You have no formal education and are unemployed. Your village is Ningra, were you live with your parents. You were apprehended with the others and have been in custody since 4th May 2003 too.

In addition, I note that this is your first ever trouble with the law.

Facts

The relevant facts are set out in the judgment on verdict, which I need not repeat. However, for the purposes of sentencing, I note the following:

·On the 2nd of May 2003, you were in a motor vehicle driven by Eki Kondi at Blackwara Bridge, from where you tired to take the victim who was then with someone else;

·You followed the vehicle in which the victim was but could not catch up;

·The next day you went to Hua Base Camp looking for the victim where you fronted up at Michael Ori’s house without his permission trying to get the victim;

·The victim on seeing you, ran into an Asian man’s residence and took cover;

·You went into the Asian man’s house and forced the victim out of the shower room where she had been hiding;

·You were armed with two bushknives, one carried by Eki Kondi and other by Kelly Sop Kondi;

·You took the victim into your motor vehicle and drove her away to the Samararu road junction and raped her there in turns;

·The victim started sweating and went into a state of dizziness after the third of her assailants finished his turn;

·The victim was gang raped by a gang of 8 man and two more later; and

·The victim did not suffer any physical injury or damage.

In addition to these facts, I note that you denied the charges. This forced the victim to come into Court and testify against you. In that way, you forced her to recall the bad memories before her assailants and other strangers.

The Offence

Section 347 of the Criminal Code, creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. What you did to the victim is an offence not only against her, her family and relatives but also against all young girls, women, and the community in this province and the whole country of Papua New Guinea.

Parliament in appreciating the seriousness of the offence of rape has on behalf of the people, prohibited such conduct. It did so by enacting s. 347 of the Criminal Code and prescribed a maximum penalty of life imprisonment. A number of Supreme Court decisions have elaborated on the relevant sentencing guidelines in this kind of cases. The much-celebrated case of John Aubuku v. The State,

[1987] PNGLR 267.

1 is an example. These cases make it clear that the offence of rape is a serious crime and it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. Sentences range from 5 years for rape by an adult without any aggravating or mitigating features, to life imprisonment where there are aggravating features, such as perverseness, mental disorders or other serious aggravating factors.

Many subsequent judgments applied these principles with variations especially on the suggested sentences. In Thomas Waim v. The State,

(02/05/97) SC519.

2 the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:

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