State v Bibi Frank (No. 2) (Prisoner) (2012) N4700

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2012) N4700
• Date: 13 June 2012
• Year: 2012

Full Title: State v Bibi Frank (No. 2) (Prisoner) (2012) N4700

National Court: Ipang AJ

Judgment Delivered: 13 June 2012

CRIMINAL LAW—Sentence—from ‘relationship rape’ or ‘acquaintance rape’ to ‘ stranger rape’—gang rape or pack rape—prisoner in the pretext of assisting the victim walking her home—midway through a dark corner—closed her mouth, dragged her to the mountain slope with his three (3) accomplices, threatened her, stabbed her with a knife, undressed her and pack raped her—during the course of raping her—pushed a sharp object through her anus and pulled it out again—victim’s intestine was pulled out—victim was unconscious—left alone at the place of rape till discovered the next morning.

CRIMINAL LAW—Sentence—serious aggravating factors - victim sustained a life threatening injury—causing permanent disability—through the pack rape or gang rape-medical by- pass at victim’s lower abdomen made possible for victim to pass waste.

CRIMINAL LAW & PRACTICE—Sentence for gang rape or pack rape with serious aggravating factors—prevalence of the offence—not guilty plea—conviction after trial—principle of ‘no quantum leap’ taken into consideration—see Thomas Waim v The State (1997) SC519 and also in State v Ian Napolean Setep (2001) SC671 - prisoner’s background taken into account, Pre-Sentence Report considered—prisoner expressed no remorse—sentencing guidelines in John Aubuku v The State [1987] PNGLR 267 addressed—need for more appropriate sentencing guidelines to be developed like in Manu Kovi—v- The State (2005) SC789 for manslaughter, murder and wilful murder cases-See Table C for devised 5 Rape Bands.

Cases Cited

John Aubuku v The State [1987] PNGLR 267; Ian Napoleon Setep v The State (2001) SC666; Rudy Yekat v The State [2000] PNGLR 225; Lawrence Hindemba v The State (1998) SC593; James Mora Meaoa v The State [1996] PNGLR 280; Thomas Waim v The State (1997) SC519; Sinclair Matagal v The State SCRA No. 95 of 1996; The State v Nick Teptep (2004) N2612; The State v Kenneth Penias [1994] PNGLR 48; The State v James Yali (2006) N2989; The State v Donald Angavia (No 2) (2004) N2590; Manu Kovi v The State (2005) SC789; The State v Eki Kondi (No 2) (2004) N2543; The State v Garry Sasoropa (No 2) (2004) N2569; The State v Ezra Hiviki (2004) N2548; The State v Ezra Hiviki (2004) N2548; The State v Flotyme Sina (No 2) (2004) N2541; The State v Donald Poni (2004) N2663; The State v Pais Steven Sow (2004) N2588; The State v Joe Kanau Tomitom (2008) N3301; The State v Alphonse Apou Dioro (2003) N2431; The State v Kunija Osake (2003) N2380; The State v Peter Huli Hahe Haite (2003) N2383; The State v Dibol Petrus Kopal (2004) N2778; The State v Philip Kila (2008) N3687; The State v Douglas Jogioba (2007) N4085; State v James Urig CR. No. 375 of 2009 (2010); The State v Sou Mesak (No. 3) (2009) N3907; State v Henry Umue CR. No. 454 of 2008 (21.10.09); The State v Jeffery Wangi (2006) N3016; State v Joe Sime CR. No. 1078 of 2004 (2006); The State v George Tomeme (2007) N5038; The State v Philip Nangoe (2007) N4922 (or N4923); The State v Thomas Waim [1995] PNGLR 187; The State v Thomas Madi (2004) N2625; The State v Lawrie Patrick [1995] PNGLR 195; The State v Steven Tari Nangimon Garasi (2010) N4155; The State v Komai Balal (No 2) (2005) N2821; State v Kenn; eth Minja (No.2) (2011) N4332; The State v Baimon Johnny (2008) N3861; The State v Kenny Reuben Irowen [2002] PNGLR 190; The State v Henry Idab (2001) N2172; The State v Inapero Susure (1999) N1880; The State v Apa Kuman (2000] PNGLR 313; The State v Vincent Naiwa (2004) N2710; The State v Moses Jafisa Winga (No 1) (2005) N2952

DECISION ON SENTENCE

1. IPANG AJ: The prisoner was found guilty on the 27th of March, 2012 on eight (8) counts of sexual penetration pursuant to s347 (1) & (2) and one (1) count of Grevious Bodily harm pursuant to s319 of the Criminal Code Act respectively. This court also found that the prisoner was the principal offender pursuant to s7 of the Criminal Code Act. After finding the prisoner guilty, this court issued the order for the Pre Sentence Report and Means Assessment Report to be done. I also gave the following directions that the Pre Sentence Report and Means Assessment Report to be filed on the 13th of April, 2012 and submissions on sentence by both counsels to be filed on the 17th of April, 2012. These directions have been complied with. On the 30th of April, 2012 I heard the submissions on sentence from the parties and this is my decision on the prisoner’s sentence.

2. The relevant facts for the purpose of sentencing in this case as I found are these; Between the hours of 12 midnight on the 31st December, 2009 and 1.00am on the 1st of January, 2010, the victim which will be referred to in this judgment as EE was in company of other ladies who went to the dance place at Komiufa Village. At the dance place, a fight broke out so the dance was stopped. The victim and other ladies decided to go home, when the prisoner offered to assist the victim and walk her home. So, the other ladies walked in front while the prisoner and the victim EE walked 5 to 6 metres behind them.

3. After walking some distance, and towards Bamboo trees where it was dark, the prisoner grabbed EE by her neck, closed her mouth and dragged her away from the road, down the mountain slope where there was a Kaukau garden. Three other boys who were accomplices to the prisoner assisted him. They stripped EE naked and had sexual intercourse with her by vaginal penetration and anal penetration against her will. The prisoner and his three accomplices then inserted an object in to the victim’s anus. As the object was pulled out, EE’s intestines was also pulled out of her stomach through her anus. She was unconscious and left in the garden till her relatives found her the next morning. As the result of the assault on her, she sustained vaginal, anal and other bodily injuries.

4. The s347 (1) & (2) of the Criminal Code Act provides for the following penalty;

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to subsection (2), imprisonment for 15 years.

(2) Where an offence under subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to section 19, imprisonment for life.

5. The prisoner was also found guilty on one count of causing grevious bodily harm. s319 of the Criminal Code Act reads;

“A person who unlawfully does grevious bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

6. These provisions provided the maximum penalties available that the court considering the particular circumstances of each case can impose, whether it be the maximum penalty or below the maximum penalty. This raises the issue in this case as to what would be the appropriate head sentence?

7. Referring back to the relevant facts of this case, it was revealed that the prisoner had consumed alcoholic drinks known as ‘live lave’ and assisted the victim to walk her home. On the way at home near the bamboo trees, where it was dark, he grabbed the victim by her neck, closed her mouth and dragged her away from the road down the mountain slope to the Kaukau garden. Three of his accomplices assisted him. They stripped her naked and had sexual penetration with her by vaginal and anal penetration against her will. They then inserted an object in to her anus and pulled it out gain. When this was done, her intestine also came out. These circumstances render this case as aggravated pack or gang rape.

8. The s349A interpretation gives description of what situations might amount to circumstances of aggravation. For the purpose of discussion, I consider appropriate to re-state s349A. This provision reads:

“349A Interpretation

For the purpose of this Division, circumstances of aggravation include, but not limited to, circumstances where-

• the accused person is in the company of another person or persons;

• at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon;

• at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grevious bodily harm to the complainant; or

9. The victim was raped by the prisoner and three others therefore it was not a single rape case but a gang or pack rape. The prisoner is very well known to the victim as her brother in-law so the rape is classified as a relationship rape’ or ‘acquaintance rape’. The prisoner’s three (3) accomplices don’t know the victim and likewise the victim does not know them, so the rape can be classified as ‘stranger rape’. It can be...