The State v Pais Steven Sow (2004) N2588

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 March 2004
• Citation: (2004) N2588
• Docket Number: CR No 723 of 2003
• Court: National Court
• Year: 2004
• Judgement Number: N2588

Full Title: CR No 723 of 2003; The State v Pais Steven Sow (2004) N2588

National Court: Kandakasi J

Judgment Delivered: 25 March 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Past sentences not deterring sexual offences—Need for stiffer penalties—Sentencing discretion under s19 of the Criminal Code—No expressed statutory prohibition against "quantum leaps" or "disparity of sentences between co–accused—A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case—Criminal Code s19

2 CRIMINAL LAW—Sentence—Rape of married woman in view of own small children—Offence committed against known person—Breach of de facto trust—Prevalence of offence—Past sentences not deterring other would be offenders—Guilty plea—First time offender—15 years sentence imposed Criminal Code s347

3 James Mora Meaoa v The State [1996] PNGLR 280, The State v Joseph Ulakua (2002) N2240, John Aubuku v The State [1987] PNGLR 267, Thomas Waim v The State (1997) SC519, Lawrence Hindemba v The State (1998) SC593, The State v Eddie Peter (No 2) (2001) N2297, The State v Kunija Osake (2003) N2380, The State v Otto Paulus (2002) N2241 referred to

Decision on sentence

___________________________

N2588

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 723 of 2003

THE STATE

-V-

PAIS STEVEN SOW

VANIMO: KANDAKASI, J.

2004: 16th and 25th March

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Past sentences not deterring sexual offences –Need for stiffer penalties – Sentencing discretion under s. 19 of the Criminal Code – No expressed statutory prohibition against “quantum leaps” or “disparity of sentences between co-accused – A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case – Criminal Code s. 19

CRIMINAL LAW – Sentence – Rape of married woman in view of own small children – Offence committed against known person – Breach of de facto trust – Prevalence of offence – Past sentences not deterring other would be offenders – Guilty plea – First time offender - 15 years sentence imposed Criminal Code s. 347

Cases cited:

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

The State v. Joseph Ulakua (Unreported judgment delivered on 23/05/02) N2240.

John Aubuku v. The State [1987] PNGLR 267.

Thomas Waim v. The State (Unreported judgment delivered on 02/05/97) SC519.

Lawrence Hindemba v. The State (Unreported judgment delivered on 27/10/98) SC593.

The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.

The State v. Kunija Osake (Unreported judgment delivered on 22/05/03) N2380.

The State v. Otto Paulus Unreported judgment delivered on (22/05/02) N2241.

Counsel

F.K. Popeu for the State

D. Kari for the Accused

25th March 2004.

KANDAKASI, J: On Tuesday, 16th March 2004, you pleaded guilty to one charge of rape contrary to section 347 of Criminal Code. The Court then heard you and your lawyer as well as the lawyer for the State on the kind of sentence the Court should give you.

Arguments

Your lawyer submitted that, your case is not a worse case of rape, as it was a case of one on one rape as opposed to a gang rape. However, he rightly conceded that it is a serious offence and it calls for a custodial sentence and left it to the discretion of the Court to arrive at an appropriate sentence that reflects your guilty plea and that, this is your first ever offence. The State on the other hand pointed out that, you committed the offence in circumstance that calls for a severe penalty because this was not rape of a stranger and that the offence was committed in view of the victim’s two little children.

Facts

In order to determine an appropriate sentence for you, it is necessary to consider the circumstances in which you committed the offence or the relevant facts. The facts are straightforward.

On Friday 28th February 2003, the victim, a Cecilia Balthazar sat on a log facing her family house at the Warapaul camp at about 10:00am. It was a pay week and her husband had gone to Vanimo town to collect his pay and do some shopping. The victim was there with her two children, one a baby. As she was there, you came from her back on her right side, grabbed her on her shoulder, and started to drag her. She shouted saying, “Pais holim mi yia” (Pais is holding me) and immediately thought of her two children.

The victim took her eldest child and carried her on her right shoulder and her baby on her laplap sling. This made her helpless. She took her children and went underneath a house near her own. You followed them there and grabbed the victim again. She shouted aloud but no one came to her help. You dragged her across a road and into the nearby bushes. She continued to struggle with you but you over powered and threw her with her children on the grass. At that time, the children started to cry and she tried to stand up but you pushed her down on the ground again. You then proceeded to remove your short and she could see your erected penis. Thereafter you went down on her, lifted her skirt. The victim tried to close her legs, as she did not wear a pants and realizing that something bad could happen to her. However, you held onto her two legs and opened them and she could feel pain in them. You then pushed your penis into her vagina. She pleaded with you to let her go but you continued to push your penis in and out of her vagina until you had satisfied yourself and came to a stop. You then escaped from the scene. All of these happened while the two children stood watching and crying.

The victim got her children, went back to her house, washed herself and then, got her string bag and went to town looking for her husband. She found her husband in town and she reported the incident to her husband, who reported the matter to police.

Later your parents paid a sum of K150.00 to prevent trouble from erupting. Eventually, police arrested you and charged you with the rape of the victim.

The Offence

Section 347 of the Criminal Code, creates and prescribes the offence of rape. It carries the maximum penalty of life imprisonment. What you did to the victim is an offence not only against her, her family and relatives but also against all young girls, women, and the community in this province and the whole country of Papua New Guinea. There is already danger out there in the streets and highways of our beautiful country because of people like you. Therefore, it is very important that parents, relatives, friends, wantoks and people living in the same locality help look after and protect our women, girls and children. It follows therefore that, when a crime is committed against another, by a wantok, friend, parent, relative or someone living in the same community, it is very serious because our sense of belonging and security is under attack.

Indeed, the Supreme Court acknowledged that position and confirmed a sentence of 14 years in James Mora Meaoa v. The State [1996] PNGLR 280. The Court there held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that, positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers.

In your case, the victim, according to your record of interview with the police, was a wantok. Then from the rest of the evidence on file, it seems you lived in the same camp. Therefore, your relationship was much closer than the relationship in the case cited. She was a part of your family, if not your community, as much as you were. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal satisfaction that could last for only a few minutes.

Not only that, you committed the offence in view of the victim’s own children. As I said in The State v. Joseph Ulakua (Unreported judgment delivered on 23/05/02) N2250, “violence produces violence”. There can be no doubt that the children will remember as long as they live what you did to their mother. They may never forgive themselves for not being in a position to help their mother. There is therefore the risk that, they might become violent because of the violence you introduced to them.

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