The State v Moses Jafisa Winga (No 2) (2005) N2958

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 September 2005
• Citation: (2005) N2958
• Docket Number: CR No 1031 of 2003
• Court: National Court
• Year: 2005
• Judgement Number: N2958

Full Title: CR No 1031 of 2003; The State v Moses Jafisa Winga (No 2) (2005) N2958

National Court: Kandakasi J

Judgment Delivered: 26 September 2005

N2958

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1031 of 2003

THE STATE

-V-

MOSES JAFISA WINGA (No.2)

WEWAK: KANDAKASI, J.

2005: 13th and 26th September

CRIMINAL LAW – Sentence – Two counts of rape of school girl – Breach of defacto trust as an uncle – use of bush knife to secure offence the rapes – Big age difference between accused and victim – Conviction after trial – Prevalence of offence – No issue for sentence to be cumulative but totality principle applied – Reduced sentence of 27 years in total imposed.

Cases cited:

The State v. Kemai Lumou (23/09/04) N2684.

The State v. Donald Angavia & Ors, (29/04/04) N2590.

The State v. Luke Sitban (No.2) (11/06/04) N2566.

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 (25/05/03) N2380.

The State v. Ian Napoleon Setep (18/05/01) SC666.

Thomas Waim v. The State (02/05/97) SC519.

Public Prosecutor v. Don Hale (1998) SC564.

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

The State v. Eki Kondi & 4 Ors (No.2) (25/03/04) N2542.

The State v. Flotyme Sina, (21/05/04) N2541.

Counsels:

Mr. A. Kupmain for the State.

Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

Following your conviction, the Court asked you to exercise your right to address the Court regarding your sentence and you did. You said sorry for having committed the offence and apologized to the victim, her relatives and your family for bringing the shame of your actions against them. You also added with agreement of the State that you paid K1,000.00 in compensation to the victim’s side. Additionally, you asked the Court to take into account the fact that this is your first ever conviction.

Your lawyer referred the Court’s attention to the case of The State v. Kemai Lumou,

1 (23/09/04) N2684.

1 to guide me in my deliberations before arriving at a decision on your sentence. Your lawyer also submitted on your behalf correctly, that since you committed two separate acts of sexual penetration of a girl under the age of 16 on two different dates in this case, your sentence has to be cumulative but not one that is crushing on you.

The State accepts the case cited by your lawyer as the case on point but goes on to argue that, the sentence must be cumulative and there should be no reduction under the totality principle. The State’s reasoning is that the offence is serious and is a prevalent one. Parliament recently enacted the law for the protection of children of the victim’s age, which people like you were not prepared to appreciate going by your conduct. Counsel for the State also reasoned that, the victim of your offence will bear the bad scars and effects of your offence against her for life and that should warrant a life long prison term for you to adequately compensate the loss and suffering your offence has and will bring against her.

In the case cited by your lawyer, I imposed a sentence of 17 years against a young man who committed the offence of sexual penetration of a girl under the age of 16 years who was a niece to the offender. The circumstances in which the prisoner committed the offence disclosed a case of rape. The victim suffered no physical injuries.

After receiving these submissions and your address on sentence, I reserved the Court’s decision to today. Here is now the Court’s decision.

For the purposes of sentencing, I note the relevant facts are fully set out in the judgment on your verdict. I need not repeat them save only to note the following pertinent ones for the purposes of sentencing:

· You are related to the victim through marriage to her aunt;

· You came and took her and her small brother away from her parents in the disguise of working on and selling cocoa for her school fees;

· The victim was asleep in the room when you went to the room, used a bush knife on two separate occasions to secure your rape of the victim;

· The victim sustained injuries to her genital area because of your forceful sexual intercourse;

· The victim was a school girl then doing grade 8 while you were a grown up man married with children; and

· You were convicted after a trial, in which you denied any relationship with the victim and her parents.

The Offence and Sentencing Trend

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 creates and defines the offence of rape. This was a re-codification of the offence of rape which pre-existed that amendment. The provision in question reads:

“347. Definition of rape.

(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.”

In The State v. Donald Angavia & Ors,

2 (29/04/04) N2590.

2 I considered what could be the meaning and or purpose of this amendment. There I expressed the view that the amendment means:

“… [W]here a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, … the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because, it makes no difference between the previous position and the new provisions.”

I referred to that judgment and the considerations leading to that view in the case of The State v. Luke Sitban (No.2).

3 (11/06/04) N2566.

3 The consideration started with the guidelines set by the Supreme Court judgment in John Aubuku v. The State.

4 [1987] PNGLR 267.

4 I also had regard to the subsequent judgments, which varied those guidelines especially in the tariffs as in Thomas Waim v. The State.

5 (02/05/97) SC519.

5 In that case, the sentence increased to 18 years on a guilty plea in a worse case of gang rape, in 1997. I followed this trend to Supreme Court judgment in Lawrence Hindemba v. The State,

6 (27/10/98) SC593.

6 in 1998, which increased a sentence of 10 years to 15 years. That was also in a case of guilty plea. The judgment reviewed the sentencing trends and said

“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.”

Further, I noted that, the trend of increasing sentences carried into the year 2001 with my judgment in The State v. Eddie Peter (No 2).

7 (12/10/01) N2297.

7 In that case, I imposed a sentence of 17 years for rape of a schoolgirl in breach of a trust relationship after a trial. I noted further, that, despite the increase in sentences, the offence of rape, did not decrease both in its frequency and prevalence as well as its severity. Hence, Jalina J in the year 2003, in The State v. Kunija Osake

8 (25/05/03) N2380.

8 imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.

Furthermore, I noted that earlier on, the Supreme Court in The State v. Ian Napoleon Setep,

9 (18/05/01) SC666.

9 reduced a sentence of life imprisonment to 25 years. That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant’s wife. There, the Supreme Court applied the “no quantum leap” principle in Thomas Waim v. The State.

10 (02/05/97) SC519.

10 The Court was of the view that, sentences should increase progressively rather than jumping from a term of years to life imprisonment for rape cases.

I was a member of the Supreme in The State v. Ian Napoleon Setep.

11 Opt Cit. note 9.

11 Since that judgment in that case, I have questioned the soundness of the principle of no “quantum leaps” particularly when the offences such as rape and armed robbery have taken a quantum leap.

I note as I did in many other cases to date that, the public is calling for increased sentences for such serious offences as rape. I had regard to the Supreme Court judgment in Public Prosecutor v. Don Hale

12 (1998) SC564.

12 and my own judgment in The State...