The State v Taulaola Pakai, Motoubwa Kasegala, Junior Nimrod and Morataya Gisigesi (2010) N4125

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 12 August 2010
• Court: National Court
• Citation: (2010) N4125
• Docket Number: CR 1107 OF 2007
• Year: 2010
• Judgement Number: N4125

Full Title: CR 1107 OF 2007; The State v Taulaola Pakai, Motoubwa Kasegala, Junior Nimrod and Morataya Gisigesi (2010) N4125

National Court: Hartshorn J

Judgment Delivered: 12 August 2010

N4125

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1107 OF 2007

THE STATE

V

TAULAOLA PAKAI, MOTOUBWA KASEGALA,

JUNIOR NIMROD and MORATAYA GISIGESI

Losuia: Hartshorn J.

2010: 5th, 10th, 11th, 12th, August

CRIMINAL LAW – Sentence – Rape – conviction after trial

Facts:

The accused were all convicted for the charge of rape contrary to s.347 (1) of the Criminal Code Act. One of the co-accused led the victim to a friend’s house and allowed the other co-accused including himself to take turns in raping her.

Held:

1. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered.

2. The predominant aggravating factor is that it was a multiple or gang rape.

3. All of the offenders are equally at fault, about the same age and all should suffer the same fate.

4. Junior Nimrod and Morataya Gisigesi are sentenced to 13 years imprisonment with hard labour.

5. Taulola Pakai and Motoubwa kasagala are sentenced to 13 years and 6 months imprisonment with hard labour.

6. Amount of time spent in pre-trial custody shall be deducted from the total sentences.

Cases Cited:

Maima v. Sma [1971-72] PNGLR 49

Lawrence Hindemba v. The State (1998) SC593

John Aubuku v. The State [1987] PNGLR 267

The State v. Lucas Yovura (2003) N2366

The State v. Junior Apen Sibu (No. 2) (2004) N2567

The State v. Ekondi (No 2) (2004) N2543

The State v. Garry Sasoropa (No 2) (2004) N2569

The State v. Donald Poni (2004) N2663

The State v. Bernard Nanau Porai (2005) N2944

The State v. Noutim Mausen (No.2) (2005) CR 596/04

The State v. Sorex Smek (2007) CR 318/07 Vanimo

The State v. Malcolm Sedi (2007) CR 175/06 Buka

The State v. Terence Siuana (2007) CR 183/07 Buka

The State v. Sylvester Kalubaku Tapoiguyau (2010) CR 1893/05 Losuia

Counsel:

Mr. J. Done, for the State

Mr. Kipa and Mr. G. Pipike, for the Accused

12th August, 2010

1. HARTSHORN J. The four accused have been convicted of the charge of rape pursuant to s. 347 (1) Criminal Code, that was committed on 3rd October 2005 at Okaiboma, Losuia, Milne Bay Province.

2. The brief facts are that on 3rd October 2005, the four accused were at Okaiboma Village, Losuia. At about 10pm, the accused Junior Nimrod (Nimrod) approached the victim who had just finished a singing ministry at Okaiboma Uniting Church. Nimrod asked the victim if she would go to a friend’s house for the night. She agreed. Nimrod took her to the house of the accused Morataya Gisigesi (Gisigesi). Nimrod then left the house. As it was about 10pm the victim had laid down to sleep. Gisigesi then entered the house, removed the clothes of the victim and had sex with her without her consent.

3. After having had sex with the victim, Gisigesi left and the accused Taulaola Pakai (Pakai) entered, laid upon the victim and had sex with her. Pakai had a knife and threatened the victim. Pakai left and then the accused Motoubwa Kasegala (Kasegala) entered, laid upon the victim and had sex with her. As Kasegala left, Nimrod entered and found the victim crying. The victim told Nimrod what had occurred. The victim refused to have sex with Nimrod but he went ahead and had sex with the victim.

4. The offence comes under s. 347(1) Criminal Code and the penalty is prescribed as subject to Subsection (2), imprisonment for 15 years. As no circumstances of aggravation were contained in the indictment the maximum penalty of imprisonment for life, does not apply in this instance.

Circumstances of the offenders

5. Pakai is now 21 years of age and is single. His parents are alive, he is villager and a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim and requested that he be placed on a good behaviour bond.

6. Nimrod is now 20 years of age, his parents are alive but live in Lae. He lives with his grandparents and also is a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim. He requested that he be placed on a good behaviour bond so that he could remain in his village and look after his grandmother.

7. Gisigesi is now 23 years of age, his parents are alive and he has two siblings. He is also a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim, sought the mercy of the court and requested that he be placed on a good behaviour bond so that he could look after his parents in his village.

8. Kasegala is now 22 years of age, his parents are alive and he is the first of three siblings. He does not have any previous convictions. He apologised for what he had done including to the victim. He also sought a good behaviour bond so that he could look after his father who is blind in both eyes.

9. Counsel for the offenders requested that the Court take into account the following mitigating factors; that they are all first-time offenders, they were all youthful at the time of the offence and remain youthful, the age difference between the offenders and the victim is not significant being between one and three years, the victim being 15 years of age at the time, all of the offenders had expressed how remorseful they are, a compensation payment was made to the complainant and her family a few days after the offenders were arrested in October 2005 and documentary evidence to this effect was produced to the court, the complainant did not suffer any physical injury as a result of the incident, it was not a planned rape but one that just happened, there is no evidence of any sexual disease being transmitted to the complainant, although all of the offenders pleaded not guilty they were only exercising their constitutional rights, although two of the offenders had a knife and a short crowbar there was no evidence that they were used and no violence was used in the course of the rape.

10. Counsel for the accused submitted that the maximum sentence should be reserved for the worst type of rape and that this was not the worst type. He referred to the case of The State v. Donald Poni (2004) N2663, where the offender, a member of a five member gang rape, which included abduction, and a breach of trust was sentenced to 19 years in prison following a not guilty plea.

11. As to Poni’s case and others where offenders have been sentenced to more than 15 years in prison, those cases would have had circumstances of aggravation included in the indictment. That is not the case here.

12. Counsel for the State submitted that the aggravating factor in this case was that it was a gang rape of the victim. He emphasised that rape is prevalent in this country and especially in Losuia. He further submitted that rape is a crime of violence and that the sentence that this Court imposes should serve as a deterrent. It was also submitted that the offenders had pleaded not guilty and thus the victim had to relive her experience. In addition, the State had incurred all the associated expenses in conducting a trial. The court was requested to consider a sentence within the range of 11 to 15 years imprisonment.

13. As I have mentioned in another decision on penalty for a charge of rape during this circuit, the general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum in this instance is 15 years as there are no circumstances of aggravation contained in the indictment.

14. The Supreme Court case of John Aubuku v. The State [1987] PNGLR 267 provided guidelines to be taken as appropriate for the sentencing for rape although since then the Supreme Court has called for sentences to be reviewed upwards: In Lawrence Hindemba v. The State [1998] SC 593 it was stated that;

“The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly reiterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State, with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences.”

15. The relevant guidelines in Aubuku’s case (supra) for present purposes are:

“(1) the offence is a serious crime to be punished by an immediate custodial sentence other than in wholly exceptional circumstances,

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point (then, 5 years);

“a) violence over and above the force necessary to rape,

b) use of a weapon to frighten or wound the victim,

c) the rape is repeated,

d) the rape has been carefully planned,

e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind,

f) the victim is...