The State v Flotyme Sina (No 2) (2004) N2541

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 May 2004
• Citation: (2004) N2541
• Court: National Court
• Year: 2004
• Judgement Number: N2541

Full Title: The State v Flotyme Sina (No 2) (2004) N2541

National Court: Kandakasi J

Judgment Delivered: 21 May 2004

1 CRIMINAL LAW—Sentence—One on one rape against married woman—Conviction after trial—No prior conviction—No physical injuries—Customary compensation—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 17 years imposed—Criminal Code s347(1).

2 The State v Donald Angavia (No 2) (2004) N2590, 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, Mary Bomai Michael v The State (2004) SC737, The State v Kunija Osake (2003) N2380, The State v Ian Napolean Setep [1997] PNGLR 428, 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, Tau Jim Anis v The State (2000) SC642, The State v Irox Winston (2003) N2347, The State v Pais Steven Sow (2004) N2588, The State v Junior Apen Sibu (No 2) (2004) N2567, The State v Eki Kondi (No 2) (2004) N2543, The State v Damien Mangawi (2003) N2419, 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, The State v Lucas Yovura (2003) N2366, The State v Raphael Kimba Aki (No 2) (2001) N2082 referred to

Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 640 of 2003

THE STATE

-V-

FLOTYME SINA

(No. 2)

GOROKA: KANDAKASI, J.

2004: 19th and 21stMay

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – One on one rape against married woman – Conviction after trial – No prior conviction – No physical injuries – Customary compensation – 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 17 years imposed - Criminal Code ss. 347(1).

Cases cited:

The State v. Donald Angavia & Ors (Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004.

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

Thomas Waim v. The State, (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.

Mary Bomai Michael v. The State(Unreported judgment delivered on 01/04/04) SC737.

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

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

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

Re Application by Anderson Agiru (Unreported judgment delivered on 08/10/01) SC671.

Application of John Mua Nilkare (Unreported judgment delivered on 15/04/97) SC536.

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

Tau Jim Anis & Ors. v. The State, (Unreported judgment delivered on 25/05/00) SC642.

The State v. Irox Winston, (Unreported judgment delivered on 13/03/03) N2347.

The State v. Pais Steven Sow (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO. 723 of 2003.

The State v. Junior Apen Sibu (N0. 2) (Unreported and yet to be numbered judgment delivered on 25/03/04) CR NO.1450 of 2003.

The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) CR1483of 2003

The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419.

The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.

Allan Peter Utieng v. The State (unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

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

The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.

Counsels:

N. Miviri for the State

M. Aipe’ei for the Prisoner

21st May 2004

KANDAKASI J: On Wednesday, this Court found you guilty and convicted you on one charge of rape of a married woman contrary to section 347 of the Criminal Code.

After your conviction, the Court administered your allocutus. In your allocutus, you said sorry for committing the offence. You said you are a villager. You have pigs, dogs, goats, a food garden and a coffee garden as well. Your people have paid K300.00 in compensation in a bid to maintain peace after you committed this offence. Your people have tried to take you out of the criminal justice system but unfortunately, for you and fortunately for the criminal justice system they did not succeed.

You said this is your first time to be before this Court. You are concerned and sorry for your family’s well-being as you have been in custody for a long time since your arrest. Your parents separated when you were a small boy. Now you live with your old father. You are married with 3 children with the third being born while you were in custody. Your lawyer added to this by submitting that, you are 29 years old and come from Napamogona village here in the Eastern Highlands Province.

The relevant facts are fully set out in the decision on sentence delivered on 19th May 2004. It is not necessary to restate them except to note the following for the purposes of determining an appropriate sentence for you:

·The victim was walking on a road to go and see her brother following problems with her husband;

·You passed her on her way and decided to rape her;

·You armed yourself with a bush knife, which you used to threaten her; and

·You entered into a struggle with the victim and eventually over powered her and forcefully had sexual intercourse with the victim.

The Offence

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

(No. 27 0f 2002) s. 17.

1 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.”

In The State v. Donald Angavia & Ors (Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004, I considered what could be the meaning and or purpose of this amendment to the law. I then held that:

“What this means in my view is that, where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then 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 took that position, after having regard to the past sentencing guidelines set by Supreme Court judgments as in John Aubuku v. The State [1987] PNGLR 267. These cases make it clear that the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape in less serious cases to life imprisonment in serious cases. At the lower end of the range are cases with no aggravating factors while those on the higher end have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.

In that regard, I noted that both the National and Supreme Courts have varied and increased the recommended sentences. I noted that, in Thomas Waim v. The State, (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...