The State v Ezra Hiviki (2004) N2548

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2004
• Citation: (2004) N2548
• Court: National Court
• Year: 2004
• Judgement Number: N2548

Full Title: The State v Ezra Hiviki (2004) N2548

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—Sentence—Rape of 10 years old girl by older relative—Breach of trust—Vaginal injuries caused requiring medical repair—Guilty plea—Expression of remorse—Whether sufficient—First time young offender—Criminal Code s347(1) as amended.

2 James Mora Meaoa v The State [1996] PNGLR 280, 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, Ian Napoleon Setep v The State (2001) SC666, The State v Kunija Osake (2003) N2380, The State v Pais Steven Sow (2004) N2588, The State v Junior Apen Sibu (No 2) (2004) N2567 referred to

___________________________

N2548

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 of 2003

THE STATE

-V-

EZRA HIVIKI

POPONDETTA: KANDAKASI, J.

2004: 15th and 29th April

CRIMINAL LAW - Sentence – Rape of 10 years old girl by older relative – Breach of trust – Vaginal injuries caused requiring medical repair - Guilty plea –Expression of remorse – Whether sufficient - First time young offender - Criminal Code s. 347(1) as amended.

Cases cited:

James Mora Meaoa v. The State [1996] PNGLR 280.

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

Thomas Waim v. The State, (Unreported judgment delivered on 02/05/97) SC519.

Lawrence Hindemba v. The State, (Unreported judgment delivered on 27/10/98) SC593.

The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.

Ian Napoleon Setep v. The State (Unreported judgment delivered on 18/05/01) SC666.

The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.

The State v. Pais Steven Sow (Unreported judgment delivered on 23/03/04) CR No.723 of 2003.

The State v. Junior Apen Simbu (No.2) (Unreported judgment delivered on 25/03/04) CR No. 1450 of 2003.

Counsels:

P. Kaluwin for the State

P. Kumo for the Prisoner

29th April 2004

KANDAKASI J: You pleaded guilty to a charge of rape of your own cousin sister (identified only as victim for her protection) during the night of 4th October 2003, at the Second Police Barracks here in Popondetta. The victim was 10 years old.

Relevant Facts

You committed the offence against the victim who was then fast a sleep in the night. You entered her room and locked it from the inside. You then reached the victim, removed her trousers and proceeded to forcefully, have sexual intercourse with her. Your actions caused pains to the victim and she called out for her mother three times. When her parents enquired as to what was happening, you told them that the victim must have been having a dream and left her in the room and you went to the house wind and sat there. Meanwhile, her mother went to her daughter’s aid but by the time she got there, the victim had gone to the toilet. As the victim came out of the toilet, she noticed that there was blood on her trousers. Thereafter, the mother with the help of a Mathew took the victim to the hospital.

At the hospital, the doctor found that the victim’s hymen was torn as well as her vaginal wall. This led to the bleeding in her vagina. She received a suturing of her torn vaginal wall and some antibiotics. The hospital discharged her on the following day.

Allocutus and Submissions

The Court administered your right to address the Court on sentence. In exercise of that right, you said sorry without more to the victim, her parents, the Court and God. Then you asked for leniency in terms of a suspended sentence with probation.

Your lawyer then made submissions on your behalf adding that you and the victim are close relatives, in fact cousins. You were sixteen (16) years old, while your victim was ten (10) years old. Therefore, there was an age difference of about six (6) years. You come from Hojavahambo village, here in the Oro Province. Grade 4 is the highest level of formal education you have reached. You are single and this is your first ever offence. Your lawyer also added that, you pleaded guilty to the charge, which indicates your acceptance of responsibility and effectively avoid the calling of the victim to testify against you and in the process relive your rape of her.

Further, your lawyer added that, you cooperated with police in terms of admitting to the commission of the offence, a position taken all the way up to this Court. He submitted too that, there were no aggravating features but conceded at the same time that, you committed an offence against a relative, thereby amounting to a commission of the other offence of incest. Hence, you breached the trust placed in you by the victim as a relative. In addition, the evidence shows that she suffered a torn vaginal wall that required suturing and medication.

Finally, you informed the Court that you remain in custody since your arrest on the day of the offence. So you have been in custody for more than 6 months now.

Your lawyer asked for a 6 years, part suspended and part custodial sentence. In making that submission, your lawyer submitted that sending you to prison would cause you more harm or damage, and turn you into a hard-core criminal.

The Offence and Sentencing Trend

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. There is already danger out there in the streets and highways of our beautiful country because of people like you. Therefore, it is very important that parents, relatives, friends, wantoks and people living in the same locality help look after and protect our women, children, and girls. It follows therefore, that when a crime is committed against another, by a wantok, friend, parent, relative or someone living in the same community, it is very serious because our sense of belonging and security is under attack.

Indeed, the Supreme Court acknowledged that position and confirmed a sentence of 14 years in James Mora Meaoa v. The State [1996] PNGLR 280. The Court there held that, a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers.

In your case, you raped your own and younger relative. Therefore, your relationship was much closer than the relationship in the case cited. She was a part of your family if not your community, as much as you were. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal satisfaction that could last only a few minutes.

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, 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. Nevertheless, these earlier cases have recommended and imposed sentences ranging from as low as five (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 cases applied these principles consistently with variations especially on the suggested sentences. In Thomas Waim v. The State, (Unreported judgment delivered on 02/05/97) SC519, 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:

“This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a “quantum leap” under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular...