The State v Mufe Gabing (2005) N2943

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 26 October 2005
• Citation: (2005) N2943
• Docket Number: CR 4 of 1999
• Court: National Court
• Year: 2005
• Judgement Number: N2943

Full Title: CR 4 of 1999; The State v Mufe Gabing (2005) N2943

National Court: Kirriwom J

Judgment Delivered: 26 October 2005

N2943

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. 4 of 1999

THE STATE

-V-

MUFE GABING

LAE: KIRRIWOM, J

2005: 11 & 26 October

Cases cited:

Heni Pauta & Kenneth Susuve & In the Matter of an Application by the Public Solicitor under section 51 of the Constitution [1982] N337 (No.2)

The State v. Peter Kaudik [1987] PNGLR 201

The State v. Michael Amuna Kaupa [1987] PNGLR 208

Counsel:

Mr J.Done for the State

Ms. S. Maliaki for the Accused

SENTENCE

26th October 2005

KIRRIWOM, J: This prisoner appeared before me on 10th October 2005 and pleaded guilty to one count of rape. The offence alleged was committed on 16th May 1998 at Lae. The prisoner, then aged 15, was allegedly a member of a group of young boys who accosted the victim in the company of two young boys. After chasing away the boys, he and his friends took the victim away by force at Peter’s Block Kamkumung and all took turns raping her. The prisoner was said to be the second person the victim recognized who had sex with her.

This case was discovered very recently by chance by the staff at the Court registry. It explains why the case is coming before the Court for the first time although the incident took place over seven years ago.

The prisoner was committed to stand trial for rape on 27th October 1998. Because of his young age he was released on K50 cash bail by the then Children’s Court at some point in time. After that the system lost him altogether. I am told he was arrested for this offence on 23 July 1998 and taken before the Children’s Court on 30 July 1998 and was released on bail after spending one week in custody. Since his committal by the District Court in October 1998, the matter was called twice before Sakora J on 8 February 1999 and 11 October 1999. Bench Warrant was issued by His Honour on the first mention day when he failed to appear. After a lapse of close to six years the case surfaced before me on 7 July 2005 as a bench warrant matter although he was appearing from custody.

The prisoner is presently I am told serving a sentence in prison for another offence that was committed subsequent to the present charge for rape. It is alleged that the prisoner was involved in robbery on or about 25 May 2001 and was dealt with by the Court. He is therefore serving a sentence for that offence which is due to expire in November 2005, which is only days or weeks away from today. I am told, although no warrant was produced, that he was sentenced to six years on 13 August 2002 by Injia J (as he then was).

It is very unfortunate that the prisoner is slapped with another charge of very serious nature when he is only days or weeks away from freedom after being in prison for the last 3 – 4 years. State authorities have a responsibility to ensure fairness and justice in pursing criminal proceedings. The aim of criminal law is to punish those who break laws of the State in a fair and just manner in accordance with the rule of law and humanity. Criminal law must not be used as a tool to exert injustice or undue persecution of a person.

In this case the prisoner may feel unfairly and harshly dealt with at the hands of the law because after serving 3 – 4 years in prison for an offence, he is entitled to expect to return home and reunite with his family once again. There can be no justice to him to be slapped with another lengthy term of prisoner sentence for an offence that took place years ago, about the same time or prior to the one he had just about served his punishment for.

I make this observation in the light of what the former Chief Justice Sir Buri Kidu said in Heni Pauta & Kenneth Susuve & In The Matter of an Application by the Public Solicitor under section 51 of the Constitution [1982] N337 (No.2) to enforce certain Constitutional rights of the two applicants, where Sir Buri when awarding exemplary damages against the State, said:

“Of all the rights and freedom guaranteed by the Constitution of PNG, the ones relating to those who are detained by the authorities require, in my opinion, the most protection. I hold no qualms about this - a person deprived of his ordinary rights and freedom is restricted, by virtue of being confined, from communication with the outside world. It rests with the authorities such as the Courts to ensure that they are protected and their rights respected. Constitutional guarantees are of no effect if judicial officers and other authorities do not do their duty.

Days have gone when people can say that those incarcerated lose their liberties and freedoms once the prison doors...