The State v Kunija Osake (2003) N2380

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 22 May 2003
• Citation: (2003) N2380
• Court: National Court
• Year: 2003
• Judgement Number: N2380

Full Title: The State v Kunija Osake (2003) N2380

National Court: Jalina J

Judgment Delivered: 22 May 2003

1 Criminal Law—Particular Offences—Rape—of 11 year old girl—Sentence—Aggravating factors—Young age of victim—Prisoner also in position of trust towards victim—Plea of guilty—First Offender—Prevalence of rape of girls of young age—Need for deterrence—Sentence of 18 years appropriate—Criminal Code s347.

2 The State v Peter Kaudik [1987] PNGLR 201, The State v Kenneth Penias [1994] PNGLR 48, James Meaoa v The State [1996] PNGLR 280 and Lawrence Hindemba v The State (1998) SC593 referred to

___________________________

N2380

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 694 of 2001

THE STATE

-V-

KUNIJA OSAKE

Goroka: Jalina J

2003 : 14 & 22 May

Criminal Law - Particular Offences - Rape - of 11 year old girl - Sentence - Aggravating factors - Young age of victim - Prisoner also in position of trust towards victim - Plea of guilty - First Offender - Prevalence of rape of girls of young age - Need for deterrence - Sentence of 18 years appropriate - Criminal Code S. 347.

Cases Cited:

The State -v- Kaudik [1987] PNGLR 201,

The State -v- Penias [1994] PNGLR 48,

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

Lawrence Hindemba -v- The State [1998] 27th October, SC 593

Counsel:

K. Umpake for the State

M. Apie’e for the Prisoner

22nd May 2003

SENTENCE

JALINA J: This prisoner has pleaded guilty to committing rape upon the victim in her parents house at Wahuto Village, Asaro, in the Eastern Highlands Province on the night of 20th April 2000. She was then aged about eleven (11) years and was a student at Anengu Community School also in the Asaro area.

According to the victim’s evidence which is contained in her statement and the prisoner’s responses when questioned by police during the record of interview, it appears that the prisoner was married to one of the victim’s sisters and at that time his family was accommodated by the victim’s family as he was in the process of building a new house.

On the night in question, the victim was sleeping alone; her parents having gone to spend the night with another family. So the prisoner was in a position of trust towards the victim when he committed this crime. She was awaken by his penis in her vagina although initially she was fast asleep and did not realise him get on top of her and insert his erected penis into her vagina. He woke up early in the morning and left the house. She soon found herself being unable to walk properly. She found also that her skirt and shirt were stained with blood. She changed into clean clothes and then hung her stained clothes on the laundry line which her mother saw and then questioned her whereupon she told her what had happened, thus resulting in her mother reporting to police and the subsequent arrest of the prisoner.

The prisoner has admitted this offence to the police and this to court which of course is a factor in his favour as it has has saved this young girl the trauma of giving evidence in open court and not only suffering embarrassment in relation to a matter that involved the violation of the most intimate and sacred part of her body but it also saved the State, the Defence and this court the time and expense in conducting a trial.

The medical report revealed the following in and around her genital area apart from the fact that she was found not to be walking properly due to a sore perineum and laceration of the hymen. The area of the perineum and her anus was found to be stained with blood through bleeding from the torn hymen and lacerated vaginal wall. White patches of fluid spots were found in the area near the perineum and thigh. The vaginal wall was found to have lacerations and the hymen was torn. Sperm was found to be present but dead. She was however fully alert but that is not to say that she was not traumatised by what had happened bearing in mind that her attacker was not someone unknown to her but someone known to her and was in a position of trust towards her and members of her family.

With regard to his personal antecedents, his lawyer Mr Apie’e has told the court that the prisoner comes from a family of five (5) brothers and three (3) sisters of which he is the 5th born. He is married with a three (3) year old daughter but his wife has left him with the child. His parents are alive but are very old. They walk around with the aid of a walking stick. He has four (4) coffee gardens and fifty (50) goats which he has left behind. He has had no formal education as well as formal employment. He has no prior convictions and has expressed remorse for what he has done. At the time of the offence he was aged about 28 years. So the victim at that time at age 11 was 17 years younger than him. I do note his personal antecedents but I must say that welfare of his family and his business interests should have been on his mind before he set out to commit a very serious crime such as rape, particularly of a very young girl who was in a position of trust towards him.

The maximum penalty for this offence is life imprisonment under Section 347 of the Criminal Code Act subject to the court’s discretion to impose a lesser sentence under Section 19 of the Code. While conceding the aggravating factors such as the young age of the victim and that the prisoner was in a position of trust towards the victim which he has breached, Mr Apie’e has submitted that leniency be exercised towards the prisoner in view of mitigating factors such as the offence being unplanned, the prisoner’s expression of remorse, his plea of guilty which has not only saved the victim the trauma of recalling the ordeal and suffering the embarrassment of giving evidence in open court about an act which involved the most intimate and most sacred part of her body. but also that the court, the State and the Defence have been saved the time and expense in...