The State v Thomas Waim

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 10 August 1995
• Citation: [1995] PNGLR 187
• Court: National Court
• Year: 1995
• Judgement Number: N1356

National Court: Sevua J

Judgment Delivered: 10 August 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS WAIM

Lae

Sevua J

3 August 1995

10 August 1995

CRIMINAL LAW — Sentencing — Rape — Pack rape — Sentencing tariff in rape case — Starting point eight years — Aggravating factors — victim subjected to sexual perversions and indignities — Pack rape involving about 30 persons in three groups — Mitigating circumstances — Punitive custodial sentence.

Facts

The accused was the leader of a group of young men who raped and subjected the prosecutrix to indignities after he the accused, abducted the victim.

Held

The offence of rape is a serious crime which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances.

Cases Cited

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.

Mase & Anor. v The State [1991] PNGLR 88.

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

The State v Peter Kaudik [1987] PNGLR 201.

Umba v The State, unreported, SC 92.

Counsel

M. Peter, for State.

B. Tabai,for defendant.

10 August 1995

SEVUA J: The prisoner has pleaded guilty to four counts of rape.

The facts which the prisoner pleaded to upon arraignment and which the Court accepted were these. At about 6:30 p.m., on 18 March, 1995 the victim, AP, with her boyfriend walked from East Taraka towards the University of Technology. As they were approaching the main gate, the prisoner came to them and asked the victim why she was accompanying her boyfriend to the University campus. She explained. The prisoner however, pulled her away from her boyfriend and at the same time, five other youths came and threatened the victim's boyfriend and chased him to the University. They later followed the prisoner who had dragged the victim towards East Taraka. The prisoner and the victim arrived at a location where a container was and he dragged her into the container, where he threatened her, forced her down then had sexual intercourse with her whilst a friend of his waited outside. After the prisoner had had sexual intercourse with the victim, he signalled to his friend who came in and also had sexual intercourse with th victim.

Following this, the prisoner arranged a vehicle where the victim was picked up and together with six others, they drove from East Taraka to the beach adjacent to the Sir Ignatius Kilage Stadium. At the beach, the prisoner had sexual intercourse with the victim followed by the others. The victim was forced to suck the penis of all these men. After this, they left the beach and drove towards East Taraka. On the way, the driver made her suck his penis, then, at the speedway, one of the prisoner's friends got into the cabin where the victim was and made her sit on his penis.

The vehicle proceeded to East Taraka via the Waterboard Station. There, the prisoner took the victim out from the vehicle and had sexual intercourse with her again the third time. All the prisoner's friends also had their turns. They left this area and went further into the bush where the prisoner had sexual intercourse with the victim again the fourth time followed by his friends. The victim was again subjected to sexual indignities. Whilst at that location a group of about seven people arrived and each in turn had sexual intercourse with the victim. She was taken to another location where another group of about seven or eight people took turns in having sexual intercourse with her.

Finally, the victim was taken to Bumbu River where another five or six people took turn in having sexual intercourse with her, not through her vagina only, but through her anus as well. It was there that the last person to have sexual intercourse with her punched her and left her at the river. She became very weak, however, she managed to find her way to her house.

The State alleged that this was a bad case of rape where the victim was repeatedly raped and subjected to sexual perversions and indignities, and the prisoner was the person who initially removed the victim from her boyfriend and the leader who led the others into committing these acts of sexual intercourse and sexual perversions against the victim.

I have set out these facts in some detail because I consider that they are relevant on sentence. There are also evidence I will allude to, which I consider relevant to sentence as well.

The prisoner said he is 16 years old. His counsel also submitted this. However, I noted in his antecedent report that his date of birth is 5/7/77. I think the prisoner is older than 16 years because to me he appears older than he said he was. Whilst I treat him as a first young offender, I do not think I can treat him as a juvenile for the reason I have alluded to above. It seems quite incredible for a 16 year old to do what this prisoner did to the victim. He has pleaded guilty to all four counts but then it was probably better he did and obviously to his advantage because there is evidence from both himself and the victim that they were known personally to each other. Therefore in my view, there was no way the prisoner could have denied his involvement. In his allocutus, the prisoner asked for probation or good behaviour bond. His counsel submitted the following factors in mitigation: his guilty plea, co-operation with police (admissions in ROI), age (young offender), expression of remorse and first offence His counsel referred to John Aubuku v The State [1987] PNGLR 267 and conceded that this was a very bad case of rape involving a number of persons and the victim was subjected to sexual indignities and perversions. He alluded to the matters therein which would substantially increase the sentence from the suggested starting point.

In considering the appropriate sentence for this prisoner, I have considered everything that both the prisoner and his counsel have submitted in mitigation. I have already alluded to the fact that this prisoner is a first young offender, however, he is not a juvenile. I treat him as an 18 year old first offender. When I consider all these matters and weigh them against the aggravated features of this case, I find that the...