The State v Junior Apen Sibu (No 2) (2004) N2567

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 March 2004
• Citation: (2004) N2567
• Court: National Court
• Year: 2004
• Judgement Number: N2567

Full Title: The State v Junior Apen Sibu (No 2) (2004) N2567

National Court: Kandakasi J

Judgment Delivered: 25 March 2004

1 CRIMINAL LAW—Sentence—Rape of 10 year old girl—Breach of trust—Conviction after trial—No remorse—First time young offender—Criminal Code s347(1) and Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, s2.

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, The State v Kunija Osake (2003) N2380, The State v Pais Steven Sow (2004) N2588 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 of 2003

THE STATE

-V-

JUNIOR APEN SIBU (No.2)

VANIMO: KANDAKASI, J.

2004: 10th and 25th March

CRIMINAL LAW - Sentence – Rape of 10 year old girl – Breach of trust – Conviction after trial – No remorse – First time young offender - Criminal Code ss. 347(1) and Sexual offences Against Children Act s. 2.

Cases cited:

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

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. Pais Steven Sow(23/03/03) N2588.

Counsels:

K . Popeu for the State

D. Kari for the Prisoner

25th March 2004

KANDAKASI J: This Court found you guilty on one charge of raping a 10 year old female (named) at Musu here in Vanimo on the 24th of March 2003.

The facts are fully setout in the judgment on verdict. For the purposes of sentencing, I note the following facts are relevant:

·You persuaded a group of children including the victim to go and collect dry coconuts with you.

·On return, you let the other children go and grabbed the victim, and shut her mouth with your hand

·You then took her into the bush and raped her.

·She suffered no physical injuries except for absence of her hymen.

·You are related to the victim as an uncle.

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. 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.

1 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 defacto situations such as a vehicle or boat operator and his passengers.

In your case, the victim was a niece to you. Then from the rest of the evidence on file, it seems you lived in the same village. 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.

2 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.

These principles have been consistently applied in many subsequent cases with variations especially on the suggested sentences. In Thomas Waim v. The State,

(02/05/97) SC519.

3 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.”

Subsequently, the Supreme Court in Lawrence Hindemba v. The State,

(27/10/98) SC593.

4 increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. In so doing, it surveyed some of the cases decided up to the date of the judgment and said these:

“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.”

The Supreme Court found that the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolgirl from school. The rape was committed in the presence of the victim’s schoolmates who ran away.

This sentence was in 1998 and the offence of rape has not decreased since then. Instead, it has been on the increase and the society has been calling for increases in the penalty.

Noting these concerns, I imposed a sentence of 17 years for a rape of a young pupil in breach of a de factor trust with some violence and threat after a trial in The State v. Eddie Peter (No 2).

(12/10/01) N2297.

5 In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. An appropriate sentence for each subsequent case is usually based on their particular circumstances. In the exercise of the discretion vested in him or her, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders.

Further, I note that, since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. I attributed this increase in part to the kind of the sentences imposed up to then, and opined that, the past sentences appeared not to serve their intended purpose of deterring other would be offenders. This therefore calls for a serious re-examination of the kind of sentences that have been imposed to date. I noted that the Supreme Court in, Lawrence Hindemba v. The State,

Ibid 5.

6 did echo that need. I then observed that, the kind of sentences that have been imposed, since even ...