The State v Nick Teptep and Kindis Mis (2004) N2612

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 13 May 2004
• Court: National Court
• Citation: (2004) N2612
• Year: 2004
• Judgement Number: N2612

Full Title: The State v Nick Teptep and Kindis Mis (2004) N2612

National Court: Sevua J

Judgment Delivered: 13 May 2004

1 CRIMINAL LAW—Sentence—Rape—Pack rape—Guidelines—Circumstances of aggravation—Suggested guidelines no longer applicable—Sentence 14 years

2 John Aubuku v The State [1987] PNGLR 267, The State v Peter Kaudik [1987] PNGLR 201, The State v Michael Amuna Koupa [1987] PNGLR 208, The State v Thomas Waim [1995] PNGLR 187, The State v Patrick Lawrie & Ors [1995] PNGLR 195, R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609, R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985 referred to

___________________________

N2612

PAPUA NEW GUINEA

[National Court of Justice]

CR …….of 2004

THE STATE ats. NICK TEPTEP and

KINDIS MIS

Kavieng ; Sevua, J

11th & 13th May 2004

CRIMINAL LAW – Sentence – Rape – Pack rape – Guidelines – Circumstances of aggravation – Suggested guidelines no longer applicable – Sentence 14 years

Cases Cited

John Aubuku v. The State [1987] PNGLR 267

The State v. Peter Kaudik [1987] PNGLR 201

The State v Michael Amuna Koupa [1987] PNGLR 208

The State v Thomas Waim [1995] PNGLR 187

The State v. Patrick Lawrie & Ors [1995] PNGLR 195

R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609

R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985

L.Rangan for State

A.Turi for Prisoner

13th May 2004

SEVUA, J : On the 11th May 2004, the accused, Nick Teptep pleaded guilty to a charge of rape contrary to s. 349 (2) of the Criminal Code (Sexual Offences and Crimes Against Children ) Act 2002, and I convicted him of rape. I reserved judgment on sentence to this morning.

The State alleges that on the evening of 15th June 2003, at Lihir Island, New Ireland Province, the accused Kindis Mis and the prosecutrix, Julie Komgoi were crossing the golf field when they met the accused Nick Teptep. The accused, Teptep then forced Julie Komgoi onto the ground. The accused Kindis Mis came and held down the victim’s legs to enable Teptep to have sexual intercourse with the victim. Kindis held the victim’s legs down whilst Teptep had sexual intercourse with the victim without her consent. It is also alleged that Teptep was in the company of Kindis Mis.

The state further alleges that Kindis Mis did not have sexual intercourse with the victim, however, by holding the victim’s legs down while Teptep had sexual intercourse with her, he (Kindis Mis) was assisting Teptep, therefore is caught by the operation of Section 7 of the Criminal Code. It is further alleged that Kindis Mis was in a position of trust over Julie Komgoi and she trusted that he would take care of her that time. It is alleged that Kindis Mis was in the company of Nick Teptep that time.

On arraignment, the accused Nick Teptep pleaded guilty as I have alluded to and was dealt with accordingly. The accused, Kindis Mis pleaded not guilty and was remanded in custody to appear at his trial before the next sittings the National Court in Kavieng. This course was taken because I had already read the depositions on the basis that both counsels had indicated that the matter would be a plea. In fairness to the co-accused, Kindis Mis, and to avoid any allegation of bias and unfairness to him, it was proper that his trial be adjourned before another Judge and so I so ordered.

This judgment on sentence is therefore only in respect of the prisoner, Nick Teptep.

As I alluded to earlier on, the accused pleaded guilty and offered to remain silent in allocutus and allowed his counsel, Ms. Turi to speak on his behalf. Counsel commenced her submissions with the personal antecedent of the accused. He is 19 years of age and resided with his parents at Kanaiye village in Lihir Island. He is of the Catholic faith and was educated to Grade 10. At the time of committing this crime, he was employed as a Shop Assistant by Island Sports Store at Lihir Island.

From instructions, Ms. Turi made further submissions as follows. The victim, Julie Komgoi was the accused’s girl friend. On the evening the prisoner met the victim with Kindis Mis, he asked her if they could have sexual intercourse but she refused him therefore the accused forced himself upon her and had sexual intercourse with her without her consent. The accused denied assaulting (hitting) the victim but admitted that he forced the victim to have sex with him.

It was submitted that the maximum penalty for this offence is life imprisonment; however the Court has discretion under s. 19 of the Code to impose a sentence other than the maximum. Counsel cited John Aubuku v. The State [1987] PNGLR 267 and referred to the guidelines the Supreme Court established therein. Counsel emphasized those guidelines, which I do not intend to reproduce here, suffice it to say that, they are the guidelines the Supreme Court said are to be taken as appropriate to sentencing for rape and these are enumerated (1) to (7) inclusive on pages 1 and 2 of the judgment in the Access to Laws compact disc. I am unable to cite the page numbers in the actual report because the library here does not have most of the reports.

There are other cases, some subsequent to that case that the National Court has adopted the principles of sentencing established in that case following The State v. Peter Kaudik, [1987] PNGLR 201. Those that easily come to mind are The State v. Michael Amuna Koupa, [1987] PNGLR 208; The State v. Thomas Waim, [1995] PNGLR 187; and The State v. Patrick Lawrie & Ors., [1995] PNGLR 195.

In my view, the most important principle to be reiterated here is what the Court said in Peter Kaudik (supra), and I adopt that here to highlight the fact that rape is an abhorrent and heinous crime. The Court said, “ the offence of rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances.” That statement of the law was adopted by the Court from the English case of R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609, and has been adopted and applied in many subsequent cases. In my view, it must be the cardinal principle of sentencing in rape cases and I would adopt it here as I have in other rape cases. The Court in that case also set out some very useful and important guidelines for sentencing for pack rape. Some of those principles were later expanded by the Supreme Court in Aubuku (supra). The Supreme Court in Aubuku said, “the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances.” The Supreme Court suggested a starting point of 5 years whereas the National Court in Kaudik suggested a starting point of 8 years. My view is that both suggestions are no longer relevant and suitable to the circumstances of the country today, particularly when rape and pack rape have become very prevalent and the community has had enough of it. I am of the view that the Courts should be looking at life imprisonment if not very long terms of imprisonment to deter young people from committing such a heinous crime. Recent sentences by the Courts have departed from the suggested starting point because they are inadequate and inappropriate today.

One of the relevant principles in those cases is that the sentence must be substantially higher where there are circumstances of aggravation. In Kaudik, the Court said, “where any or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point” and then the Court went on to list the different aggravating factors starting with “violence over and above the force necessary to commit rape,” which I consider relevant in the present case. The Supreme Court in Aubuku also said the same thing. I note that some of these principles were adopted from two well known English cases which have formed part of our precedent and underlying law in the sentencing for the crime of rape. They are R v Roberts (supra) and R v Billam [1986] 1 WLR...