The State v Lawrie Patrick, Phillip Lahari, Mark Nainas and Moko Hokaia [1995] PNGLR 195

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 23 June 1995
• Court: National Court
• Citation: [1995] PNGLR 195
• Year: 1995
• Judgement Number: N1355

Full Title: The State v Lawrie Patrick, Phillip Lahari, Mark Nainas and Moko Hokaia [1995] PNGLR 195

National Court: Sevua J

Judgment Delivered: 23 June 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LAWRIE PATRICK;

PHILLIP LAHARI;

MARK NAINAS AND

MOKO HOKAIA

Lorengau

Sevua J

23 June 1995

SENTENCING — Criminal Law — Rape — Rape committed upon 16 year old — Sentence guidelines — Pack rape — Starting point eight years — Aggravating factors — Intoxication not mitigating circumstances — — No diminished responsibility — First and second accuseds committed actual rape — Third and fourth accuseds counselled/procured & aided/abetted — Principal offenders, Criminal Code, s 7 (1) (c) & (d).

Facts

The four accused were found guilty of raping a 16 year old girl. All four accuseds were members of the discipline forces, namely the Navy, and were based at Lombrum. The first two were found to be the actual perpertrators of the rape, and the other two as principal offenders procuring aiding and abetting the offence. The Court considered sentences.

Cases Cited

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.

Belawa v The State [1988-89] PNGLR 496.

Gimble v The State [1988-89] PNGLR 271.

Mase & Anor v The State [1991] PNGLR 88.

Osborn Kwayawako & 5 ors. v The State SC 392.

State v Kaudik [1987] PNGLR 201.

The State v Bruno Kaski & Ors. unreported and unnumbered, 22 January 1994.

23 June 1995

SEVUA J: The four accuseds were found guilty, after a trial, of the rape of Olivia John, at Lombrum Naval Base on 24 December, 1993.

Lawrie Patrick and Phillip Lahari were convicted of actually raping the prosecutrix in two separate acts of sexual intercourse. Mark Nainas was convicted as a principal offender pursuant to s 7 (1) (d) of the Criminal Code for counseling or procuring Lawrie Patrick to commit rape upon the victim. And Moko Hokaia was also convicted as a principal offender pursuant to s 7 (1) (c) of the Criminal Code for aiding Phillip Lahari to commit rape upon the prosecutrix.

The trial lasted seven days and involved eleven prosecution witnesses and five defence witnesses including the four prisoners. As is usual in a rape trial, the victim was under stress from the traumatic experience she was subjected to on 24 December, 1993. During the trial which attracted a packed courtroom almost throughout the trial with even a bigger crowd of spectators surrounding the courtroom, the victim was subjected to the embarrassment and pain of recounting publicly, the crime of rape committed against her. This was a hight profile trial since it had attracted a lot of publicity and attention within the small township of Lorengau and the Lombrum Patrol Boat Base as well. The intensity of this trial was manifested by the fact that the courtroom was always packed to capacity each day and there was always a huge crowd of listeners outside the courtroom and within the fenced perimeters of the courtroom. In my view, the sentence must reflect that this was a trial in which the victim had to recall her degadation.

Counsels have cited two well known cases which deal with the sentencing principles for this crime and which I would advert to. They are, The State v Peter Kaudik [1987] PNGLR 201 and John Aubuku v The State [1987] PNGLR 267, the latter being a Supreme Court decision on appeal which approved and followed the former which was a decision of a single Judge, Amet, J (as he was then).

Mr Jubilee Jr counsel for the defence has submitted that this case falls under the third category in John Aubuku v The State, which recommends a starting point of eight years, but urged the Court to exercise its discretion under s.19 of the Code by imposing a lesser sentence on the grounds that, first, the victim was in an area (Single Quarters) which was out of bounds to females, secondly, that the prisoners were drunk therefore dispossessed of their power of vision to some extent, and finally, when released on bail, their freedom were restricted by certain bail conditions which they complied with. These matters should therefore be considered in their favour and they should be given the benefit of same.

With the greatest respect to Mr Jubilee Jr, I do not think I can accept the first ground of his submission. The fact that the single quarters was out of bound to females did not grant the right nor the licence to rape a female who wonders there, far from it. The prisoners were members of a disciplined force and the force together with the community expect disciplined behaviour from servicemen at all times.

They cannot use intoxication as a mitigating factor and in this respect, I adopt what the Supreme Court said in Mase & Anor. v The State [1991] PNGLR 88 at 91: "the alcohol factor was also mentioned in mitigating factor but as far as I am concerned, it could have no bearing on the sentences. If people drink liquor, get drunk and commit crime they must not expect leniency from the Courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility." In the present case, I do not consider that the effect of the prisoners' intoxication amounted to...