The State v Sou Mesak, Lavuvat Rereke & Billy Turmur (No 3) (2009) N3907

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 11 December 2009
• Citation: (2009) N3907
• Docket Number: CR.NO. 1032 OF 2005
• Year: 2009

Full Title: CR.NO. 1032 OF 2005; The State v Sou Mesak, Lavuvat Rereke & Billy Turmur (No 3) (2009) N3907

National Court: Lenalia, J

Judgment Delivered: 11 December 2009

CRIMINAL LAW—Pack rape—Sentence after finding of guilty—Criminal Code (Sexual Offences and Crimes Against Children) Act, s347.

CRIMINAL LAW—Sentencing principles on rape cases—No breach of trust—No weapons used—No injuries—First time offender—Prevalence of offence—Effect of—Sentence of 18 years imposed.

Cases cited.

Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439; Goli Golu v The State [1979] PNGLR 653; The State v Andrew Tovue [1981] PNGLR 8; Avia Aihi v The State (No 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; John Aubuku v The State [1987] PNGLR 267; John Elipa Kalabus v The State [1988] PNGLR 193; The State v Sottie Apusa [1988–89] PNGLR 170; The State v Kenneth Penias [1994] PNGLR 48; The State v Thomas Waim [1995] PNGLR 187; The State v Lawrie Patrick [1995] PNGLR 195; James Mora Meaoa v The State [1996] PNGLR 280; Lawrence Hindemba v The State (1998) SC593; The State v Alphonse Apou Dioro (2003) N2431; The State v Pais Steven Sow (2004) N2588; The State v Nick Teptep (2004) N2612; The State v Moses Jafisa Winga (No 1) (2005) N2952; The State v James Yali (2006) N2989; The State v Chris Nawa (No 2) (2009) N3732; The State v Henry Umue (21.10.09) Cr No 454 of 2008

11th December, 2009

1. LENALIA, J: The prisoner was amongst a group of three men who were accused of one count of aggravated rape contrary to s347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. Only accused Lavuvat Rereke was tried and found guilty on 8th December 2009. The other two co-accused are still at large and the following judgment on sentence only relates to accused Lavuvat Rereke.

3. To understand the nature of the offence and for purposes of the discussion on sentence, I quote the above sections in the following terms:

“347. Defenition of rape.

(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.”(Emphasis added)

4. Circumstances of aggravation were not pleaded on indictment but the evidence on trial clearly indicates that, the prisoner was in the company of two other accomplices. In the circumstances of the instant case, aggravating factors are highlighted in the interpretation section in s.349A of the Act. It states states:

“349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(a) the accused person is in the company of another person or persons; or

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

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant’ or

(g) the complainant has a serious physical or mental disability; or

(h) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

(Emphasis added).

5. Section 1 of the Criminal Code defines the phrase “circumstances of aggravation” in the following words:

“circumstances of aggravation” “includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.”

6. The prisoner’s case falls under the above definition. He committed the crime although a one off incident committed it together with two co-accused and although the aggravating factors are not pleaded on the body of the indictment, there is no reason why the Court can not make reference to circumstances of aggravations.

7. For purposes of discussion on sentence, let me recapitulate on what evidence transpired on trial. The following pieces of documents were tendered by consent. The record of interview, in...