The State v Joe Kanau Tomitom (2008) N3301

• Jurisdiction: Papua New Guinea
• Date: 21 February 2008
• Citation: (2008) N3301
• Docket Number: CR NO. 614 of 2007
• Court: National Court
• Year: 2008

Full Title: CR NO. 614 of 2007; The State v Joe Kanau Tomitom (2008) N3301

National Court: Kandakasi, J

Judgment Delivered: 21 February 2008

DECISION ON SENTENCE

CRIMINAL LAW—Sentence—Rape—Rape of a relative—Breach of trust—No weapons used—No injuries or other aggravating factors—Guilty plea—First time offender—Prevalence of offence—Parliament amending law—Effect of—Sentence of 15 years imposed - Section 347 of Criminal Code.

Cases cited:

John Aubuku v. The State [1987] PNGLR 267; Thomas Waim v. The State (02/05/97) SC519; Lawrence Hindemba v. The State (27/10/98) SC593; The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2); (29/04/04) N2590; The State v. Eddie Peter (No 2) (12/10/01) N2297; The State v. Kunija Osake (22/05/03) N2380; The State v. Ian Napoleon Setep (18/05/01) SC666; Public Prosecutor v. Don Hale, (1998) SC564; Re Application by Anderson Agiru (08/10/01) SC671; Avia Aihi v. The State [1981] PNGLR 81; Tau Jim Anis & Ors. v. The State, (25/05/00) SC642; The State v Irox Winston [2003] PNGLR 331; The State v. Pais Steven Sow (Unreported judgment delivered on 25/03/04) N2588; The State v. Junior Apen Sibu (N0. 2) (Unreported judgment delivered on 25/03/04) N2567; The State v. Eki Kondi & 4 Ors (No.2) (Unreported judgment delivered on 25/03/04) N2543; The State v Luke Sitban (No 2) (2004) N2566; The State v Henry Nandiro (No 2) (2004) N2668; The State v Dibol Petrus Kopal (2004) N2778; Rudy Yekat v. The State (22/11/00) SC665

21 February, 2008

1. KANDAKASI J: You pleaded guilty to a charge of rape of a female on 5 January 2006 at Kagumaru village contrary to s.347 of the Criminal Code. The only issue for me to decide is what is an appropriate punishment for the offence you committed?

Relevant Facts

2. The relevant facts are these. On 5 January 2006, at about 8:00 pm, you and another person accompanied the victim of your offence, a female who is named but I will only identify her with the initials SK and another female. As you were on the way, the other female and your other male friend walked into the nearby bush. This left you and your victim alone. You were drunk at the time too and you turned on your victim who is related to you through marriage. You forced her to remove her clothes and then you proceeded to have sexual intercourse with her, against her will. The State has not alleged that you caused the victim any physical injuries although psychologically she would have been traumatized. The State has also not alleged the use of any weapon or anything like that to threaten or actually use it against your victim to secure your rape of her. No other aggravating features have been alleged or established against you by the State.

The Offence and Sentencing Trend

3. Section 347 of the Criminal Code, creates and prescribes the offence of rape. That provision reads as follows:

“(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, to imprisonment for life.”

4. Obviously, Parliament, in my view, considered the offence of rape very serious and decided to prohibit it. It did so by enacting s. 347 of the Criminal Code and prescribed the maximum penalty of life imprisonment. A number of Supreme Court decisions like that of John Aubuku v. The State [1987] PNGLR 267, have set and elaborated on the relevant sentencing guidelines in this kind of cases. These cases make it clear that, the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist. These guidelines which were set more than ten (10) years ago suggest sentences between five (5) years for rape in less serious cases of rape to life imprisonment. In the lower end are cases with no aggravating factors while those on the higher end, have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.

5. Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State (02/05/97) SC519, the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:

“This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a “quantum leap” under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed.”

6. Almost a year after the decision, in Thomas Waim v. The State, (supra) the Supreme Court in Lawrence Hindemba v. The State (27/10/98)...