The State v Steven Tari Nangimon Garasai (2010) N4155

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 November 2010
• Court: National Court
• Citation: (2010) N4155
• Docket Number: CR NO 1022 OF 2006
• Year: 2010
• Judgement Number: N4155

Full Title: CR NO 1022 OF 2006; The State v Steven Tari Nangimon Garasai (2010) N4155

National Court: Cannings J

Judgment Delivered: 12 November 2010

N4155

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1022 OF 2006

THE STATE

V

STEVEN TARI NANGIMON GARASAI

Madang: Cannings J

2010: 30 September, 6 October, 2, 12 November

SENTENCE

CRIMINAL LAW – sentencing – rape – sentence after trial – four counts – circumstances of aggravation on each count – abuse of position of trust, authority or dependency – whether sentences should be served concurrently or cumulatively – totality principle.

A man was convicted after a trial of four out of six counts of rape. He was a preacher at the time, about 30 years of age, and the four victims were flower girls in his ministry, aged 15 to 17 years. In each case the offender induced the victim to have sex with him by abusing his position of trust, authority or power – by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2) The following notional sentences were imposed (the offender having been found not guilty of counts 1 and 2): count 3: 12 years; count 4: 12 years; count 5: 14 years; count 6: 14 years. The total potential sentence is thus 12 + 12 + 14 + 14 years = 52 years imprisonment.

(3) The sentences should be served cumulatively as there were four different victims and four separate incidents.

(4) However, under the totality principle, the court should avoid imposing a crushing sentence, thus the total sentence was reduced to 20 years imprisonment, apportioned as follows: counts 3 and 4, 4.5 years each and counts 5 and 6, 5.5 years each.

(5) The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the victims or forgiveness or other resolution of the problems created by the offender.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Douglas Jogioba (2007) N4085

The State v George Tomeme CR No 920/2002, 24.08.07

The State v James Urig CR No 375/2009, 24.05.10

The State v James Yali (2006) N2989

The State v Jeffery Wangi (2006) N3016

The State v Joe Sime CR No 1078/2004, 25.08.06

The State v Philip Kila CR No 722/2006, 15.07.09

The State v Philip Nangoe CR No 392/2006, 24.10.07

The State v Robert Yochie (2010) N4113

The State v Steven Tari Nangimon Garasai (2010) N4137

SENTENCE

This was a judgment on sentence for an offender who had been convicted of four counts of aggravated rape.

Counsel

N Goodenough, for the State

A Raymond, for the offender

12 November, 2010

1. CANNINGS J: The offender, Steven Tari Nangimon Garasai, commonly known as Steven Tari, is before the court to be sentenced after being convicted, after trial, of four counts of rape in circumstances of aggravation. The offences were committed over a three-month period, from March to June 2006, at Gal village, Madang Province. There are four victims, girls aged 15 to 17 years. Their names are “R”, “F”, “S” and “B”.

2. An indictment containing six charges was presented against him. He was found not guilty of counts 1 and 2 and guilty of counts 3, 4, 5 and 6:

· count 3: rape of “R”, aged 17, on 16 March;

· count 4: rape of “F”, aged about 16, on 31 March;

· count 5: rape of “S”, aged 15, on 27 April; and

· count 6: rape of “B”, aged 15, on 30 May.

3. The accused was aged in his early 30s at the time. He started ‘the Culture Ministry’ in 2005. He preached to the local people and held himself out to be King Yali, a reincarnation of God Yali, the deceased leader of the Yali Movement. The accused’s Ministry was popular and he preached to large gatherings on Sundays. He appointed flower girls to assist in the work of the Ministry and four of them are the victims in this case.

4. In each instance the offender induced the victim to have sex with him by abusing his position of trust, authority or power – by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. In each instance the circumstance of aggravation was that he abused a position of trust, authority or dependency, in that he was a religious instructor to the victim. Further details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Steven Tari Nangimon Garasai (2010) N4137).

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I want to thank the Court for giving me the last chance to have something to say. Though the Court has found that I have done wrong, the last thing I want to say is that, according to my ministry – I am the leader of the Culture Ministry – our country, Papua New Guinea, has deteriorated. My freedom and the freedom of the Culture Ministry have been spoiled. The worshipping within my Ministry has been spoiled. I am just following the doctrine of my ministry, my church, and following the stories of our great grandfathers, so my last words are these: this is going to be World War III.

PRE-SENTENCE REPORT

7. Steven Tari is 35 years old. His biological father is from Ufaf village in the Markham area of Morobe Province and his biological mother is from Siassi Island, Morobe Province. He was their only child but they divorced when he was young and he was raised in Manus Province by his mother and her new husband. However, it was an unstable upbringing. He describes his childhood as being that of a “street wanderer” without proper parental guidance. He is unmarried and has no children. His educational background is unclear. The pre-sentence report states that he only has a grade 5 education but at the trial he gave evidence that he had done some training, but not graduated, as a Lutheran pastor at Amron Bible College, Madang Province. He has never been formally employed. He relied on offerings from the Culture Ministry for sustenance. His physical health is sound.

8. As to his mental health, he says that it has suffered because of physical assaults at the hands of the police committed against him at the time of his arrest. Prior to the trial the court conducted an inquiry under Section 569 (want of understanding of accused person) of the Criminal Code into the matter of whether the accused was capable of understanding the proceedings. He was subject to psychiatric assessment and the Court concluded under Section 569(2) that he was capable of understanding the proceedings.

9. The pre-sentence report was silent on the question of the effect of the crimes on the victims. None was interviewed, nor were any of their relatives. As to how the offender was regarded in the community at the time, and how he is regarded now, there is little for the court to go on. Only one person has made a statement, a woman described as a ‘strong and faithful servant’ of the Culture Ministry, who was once a leader of the flower girls. The statement appears contradictory. On the one hand, it is said that it was commonly accepted that he was a good man, sent by God to help his followers go to Heaven. On the other hand, it is reported that the offender instructed his followers not to say anything to anybody about him or his Ministry or they will receive God’s curse and not enter Heaven.

The report contains no recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mrs Raymond urged the court to take into account that the offender has no prior convictions and that each offence was committed without any accompanying physical violence. The offender did not believe that he was doing anything wrong. A belief system was in place and he acted at all times in accordance with it; as did the victims. He did not introduce it. All of these are significant mitigating aspects of the case. Although the sentences for each count should be served cumulatively, the court must avoid a total sentence that would be out of proportion to the nature and extent of the criminal conduct that has been proven. A total sentence of no more than 15 to 20 years should be imposed, Mrs Raymond submitted.

SUBMISSIONS BY THE STATE

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