The State v Joe Kanau Tomitom (2008) N3301

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 21 February 2008
• Citation: (2008) N3301
• Docket Number: CR NO. 614 of 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3301

Full Title: CR NO. 614 of 2007; The State v Joe Kanau Tomitom (2008) N3301

National Court: Kandakasi, J

Judgment Delivered: 21 February 2008

N3301

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 614 of 2007

THE STATE

-V-

JOE KANAU TOMITOM.

Buka: Kandakasi, J.

2008: 13 & 21 February

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Rape – Rape of a relative – Breach of trust – No weapons used – No injuries or other aggravating factors – Guilty plea – First time offender – Prevalence of offence – Parliament amending law – Effect of – Sentence of 15 years imposed - Section 347 of Criminal Code.

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 Donald Angavia, Paulus Moi and Clement Samoka (No 2)

(29/04/04) N2590

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

Public Prosecutor v. Don Hale, (1998) SC564

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

Avia Aihi v. The State [1981] PNGLR 81

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

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

The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588

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

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

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

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

The State v Dibol Petrus Kopal (2004) N2778

Rudy Yekat v. The State (22/11/00) SC665

Counsel:

D. Mark, for the State.

P. Kaluwin, for the Accused.

21 February, 2008

1. KANDAKASI J: You pleaded guilty to a charge of rape of a female on 5 January 2006 at Kagumaru village contrary to s.347 of the Criminal Code. The only issue for me to decide is what is an appropriate punishment for the offence you committed?

Relevant Facts

2. The relevant facts are these. On 5 January 2006, at about 8:00 pm, you and another person accompanied the victim of your offence, a female who is named but I will only identify her with the initials SK and another female. As you were on the way, the other female and your other male friend walked into the nearby bush. This left you and your victim alone. You were drunk at the time too and you turned on your victim who is related to you through marriage. You forced her to remove her clothes and then you proceeded to have sexual intercourse with her, against her will. The State has not alleged that you caused the victim any physical injuries although psychologically she would have been traumatized. The State has also not alleged the use of any weapon or anything like that to threaten or actually use it against your victim to secure your rape of her. No other aggravating features have been alleged or established against you by the State.

The Offence and Sentencing Trend

3. Section 347 of the Criminal Code, creates and prescribes the offence of rape. That provision reads as follows:

“(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.”

4. Obviously, Parliament, in my view, considered the offence of rape very serious and decided to prohibit it. It did so by enacting s. 347 of the Criminal Code and prescribed the maximum penalty of life imprisonment. A number of Supreme Court decisions like that of John Aubuku v. The State [1987] PNGLR 267, have set and elaborated on the relevant sentencing guidelines in this kind of cases. 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 of rape to life imprisonment. In the lower end 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.

5. Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. 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 particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed.”

6. Almost a year after the decision, in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (27/10/98) SC593, increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. The Court in that case, surveyed some of the cases decided up to the date of the judgment and said:

“The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). 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.”

7. The Supreme Court in arriving at that decision found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school. It also found that the offence was committed in the presence of the victim’s schoolmates who ran away.

8. In a number of my own decisions as in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590, I observed that, since the decision in the above case in 1998, there has been an increase in the commission of the offence. The society has therefore been calling for increases in the kind of penalties imposed. I responded to that call by imposing a sentence of 17 years, for a rape of a young pupil in breach of a de factor trust with some violence and threats of violence after a trial. That was in The State v. Eddie Peter (No 2) (12/10/01) N2297, in a case of one on one rape. In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. I also noted that what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case.

9. I further noted that, since the pronouncement of the various sentences in rape case up to 2004, there has never been a decline in number of rape and other sexual offence. I attributed this increase in part to the kind of the sentences imposed up to then, and observed that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. In view of that, I expressed the view that the courts have to seriously examine the kind of sentences imposed to date, thereby repeating what the Supreme Court said in Lawrence Hindemba v. The State (supra. I then observed that the kind of sentences that have been imposed, since even Lawrence Hindemba’s case, have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences. I then went on to note that, even though the Courts have issued numerous warnings of increases in the sentences, they have failed to follow that through with appropriate sentences, except for Justice Sevua, who in my view, tried to meaningfully review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra) and imposed varying sentences with the maximum at 25 years. Unfortunately, the Supreme Court struck it down to 18 years on the basis, that the sentence imposed by the National Court was a “quantum leap.”

10. I considered the concept of “no quantum leap” and noted that, there was no expressed legislative...