The State v Kenneth Penias

• Jurisdiction: Papua New Guinea
• Judge: Injia AJ
• Judgment Date: 26 May 1994
• Citation: [1994] PNGLR 48
• Court: National Court
• Year: 1994
• Judgement Number: N1229

National Court: Injia AJ

Judgment Delivered: 26 May 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KENNETH PENIAS

Alotau

Injia AJ

26 May 1994

CRIMINAL LAW — Sentence — Guilty plea to one count of rape — Aggravating factors — Masked and armed with a bushknife — Abducted victim and held her captive for two hours in the bush.

Facts

The accused committed rape upon the prosecutrix. He pleaded guilty. He wore a mask and was armed with a bushknife. He dragged the victim about 200 m from main road and, after keeping her for two hours, raped her.

The Court considered the aggravating and mitigating factors.

Held

There are four aggravating factors, which outweigh mitigating points. Offenders must be punished with a strong punitive and deterrent sentence. A sentence of nine years is appropriate.

Cases Cited

Aubuku v The State [1987] PNGLR 267.

Counsel

C Sambu, for the State.

D Sakumai, for the defendant.

26 May 1994

INJIA AJ: The defendant pleaded guilty to one count of rape, contrary to s 347 of the Criminal Code Ch 262 (the Code). The maximum penalty for this offence is life imprisonment.

The circumstances of the offence, and these are not contested by the prisoner, are set out in the statement of the victim and her female companion. On Thursday 24 September 1992 at about 2 pm, the two girls were walking alone towards their village of Unai. When they reached Relabana Creek, the defendant came from behind, grabbed the victim, and dragged her into the nearby bush. The defendant wore a mask over his face and held a bushknife. The victim screamed and struggled to set herself free. In the process, she cut the palm of her right hand with the bushknife. Meanwhile, her companion got frightened and ran away to seek help. All this time, the victim struggled and begged her attacker to let her go, but he refused. He continued to drag her further into the bush and stopped about 200 m from the main road. There they stayed for a while. Later, he pulled her to another spot near the mangroves. By this time, it was about 4 pm. He asked her three times to have sex with him, all of which she refused. The third tie she refused, he grabbed her by her "T" shirt and pushed her to the ground. She tried to scream, but he grabbed her by the throat, causing her to gasp for air. He then released his grip on her throat and told her, "If you want me to tie you up and leave you here, then do that (sic) ". He forced her to have sexual intercourse once. In the process of penetration, she felt "sharp pains". After the one act of intercourse, he took her back to Begasi village and left her there after giving her a black "T" shirt to wear to replace the one she wore, which was stained with blood from the cut on her right hand. At Begasi village, she reported the matter to a council/committee man.

The next day, the victim was taken to Budoya Sub-Health Centre, where she was examined by Sister Anna Kogeta. Sr Anna said the victim appeared to be conscious and alert. She also observed that there were no tears or bleeding from the vagina. She found that there were bruises on her neck and a wound on her right hand.

On 29 March 1993, the defendant was apprehended by Alotau police and interviewed. He chose to remain silent.

The victim was a young woman, aged about 19 years.

The prisoner comes from Du'una village, Esa'ala District. According to the antecedent report dated 22 March 1993, he was then aged about 20 years old, married with one child who was two years old, and his wife was expecting her second child. It is also stated in that report that he left Salamo Community School in 1987 after only doing Grade 3, and that he had been employed by a company called Salcon for two years and by Ulabo Logging Company for one year. In court, his lawyer said the accused is 21 years old and married with two children who are eight years old and two years old, respectively. His lawyer says he was employed by Salcon for one year, but left this employment to get married. If my calculation is correct, he would have got married in 1984/85, allowing for the nine months pregnancy period of his wife's first child. That means that he got married when he was only 11 years old. In my view,...