The State v Henry Nandiro (No 2) (2004) N2668

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 June 2004
• Citation: (2004) N2668
• Court: National Court
• Year: 2004
• Judgement Number: N2668

Full Title: The State v Henry Nandiro (No 2) (2004) N2668

National Court: Kandakasi J

Judgment Delivered: 22 June 2004

1 CRIMINAL LAW—Sentence—Armed gang rape of 14 year old girl—Conviction after trial—No prior conviction—Physical injuries to victim—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 20 years imposed—Criminal Code s347(1).

2 The State v Donald Angavia & Ors (Unreported judgment delivered on 29/04/04) CR NO, 256 of 2004, The State v Luke Sitban (No, 2) (Unreported judgment delivered on 11/06/04) N2566, 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, 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 Eki Kondi & 4 Ors (No, 2) (Unreported judgment delivered on 25/03/04) CR1483of 2003The State v Flotyme Sina (Unreported judgment delivered on 21/05/04) N2541 referred to

Decision On Sentence

___________________________

N2668

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 762 of 2001

THE STATE

-V-

HENRY NANDIRO

(No. 2)

WEWAK: KANDAKASI, J.

2004: 21st and 22nd June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Armed gang rape of 14 year old girl – Conviction after trial – No prior conviction – Physical injuries to victim - 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 20 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.

The State v. Luke Sitban (No.2) (Unreported judgment delivered on 11/06/04) N2566.

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.

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

The State v. Flotyme Sina (Unreported judgment delivered on 21/05/04) N2541.

Counsels:

J. Wala for the State

L. Siminji for the Prisoner

22nd June 2004

KANDAKASI J: Yesterday, the Court found you guilty and convicted you on one charge of rape of a then 14 year old girl on 30th March 2001 contrary to section 347 of the Criminal Code.

After your conviction, the Court asked you to address it on your sentence. You said sorry for raping the victim and said you will go and marry the victim at the end of serving your sentence.

The relevant facts are fully set out in the decision on verdict delivered yesterday. Therefore, it is not necessary to restate them except to note the few relevant ones for the purposes of determining an appropriate sentence for you. Firstly, the victim was 14 years old at the time of your offence. You were married and therefore an adult. Hence, there was a huge age difference.

Secondly, you were in the company of three other boys or men. Of these men, two of you raped the victim. You and your group of man armed yourself with a bush knife. You were the one who carried and used the bush knife against the victim.

Thirdly, the victim was with a friend and they were on their way to a dance in a village. They took a ride in your canoe for you to take them to the place where the dance was held. Instead of taking them to the dance place, you took them away to a different place far away in the middle of the night. You kept her and her friend late into the night at about 12:00 midnight. You therefore adducted the victim when you took her to a destination she did not intend to go at the first place.

Fourthly, at the time of forcefully having sexual intercourse with the victim, you and you accomplish handled the victim roughly. Consequently, she sustained physical injuries to her vagina resulting in continuous bleeding even for more than a day after the rape on her.

Finally, you have not paid the victim and her relatives any compensation and have certainly not said sorry to them. Further, this was necessary particularly, when the victim was in your village with her parents because of her father providing a vital service to the community. He was the Aid Post Orderly at your village, taking care of your people’s medical problems or needs. Your sexual attack on the victim demonstrates no appreciation of the services, her father was providing for the vast majority of the people in the village and or community.

With these facts in mind, I now turn to consider the offence itself, more particularly, the sentencing trend and tariffs in this kind of cases.

The Offence and Sentencing Tariffs

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.”

I considered what could be the meaning and or purpose of this amendment to the law in The State v. Donald Angavia & Ors,

(Unreported judgment delivered on 29/04/04) CR NO. 256 of 2004.

2 There I expressed the view that the amendment means:

“… [W]here a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, … 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 referred to that judgment and the considerations leading to that view in the judgment, I recently handed down her in this circuit in the case of The State v. Luke Sitban (No.2).

(Unreported judgment delivered on 11/06/04) N2566.

3 The consideration started with the guidelines set by the Supreme Court judgment in John Aubuku v. The State.

[1987] PNGLR 267.

4 I also had regard to the subsequent judgments, which varied those guidelines especially in the tariffs as in Thomas Waim v. The State.

(02/05/97) SC519.

5 In that case, the sentence increased to 18 years on a guilty plea in a worse case of gang rape, in 1997. I followed this trend to Supreme Court judgment in Lawrence Hindemba v. The State,

(Unreported judgment delivered on 27/10/98) SC593.

6 in 1998, almost a year later, which increased a sentence of 10 years to 15 years. That was also in a case of guilty plea. The judgment reviewed the sentencing trends and noted that:

“These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years.”

This trend of increasing sentences carried into the year 2001 with my judgment in The State v. Eddie Peter (No 2).

(Unreported judgment delivered on 12/10/01) N2297.

7 In that...