The State v Steven Tari Nangimon Garasai (2010) N4155

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 12 November 2010
• Citation: (2010) N4155
• Docket Number: CR NO 1022 OF 2006
• Year: 2010

Full Title: CR NO 1022 OF 2006; The State v Steven Tari Nangimon Garasai (2010) N4155

National Court: Cannings J

Judgment Delivered: 12 November 2010

SENTENCE

CRIMINAL LAW—sentencing—rape—sentence after trial—four counts—circumstances of aggravation on each count—abuse of position of trust, authority or dependency—whether sentences should be served concurrently or cumulatively—totality principle.

A man was convicted after a trial of four out of six counts of rape. He was a preacher at the time, about 30 years of age, and the four victims were flower girls in his ministry, aged 15 to 17 years. In each case the offender induced the victim to have sex with him by abusing his position of trust, authority or power—by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2) The following notional sentences were imposed (the offender having been found not guilty of counts 1 and 2): count 3: 12 years; count 4: 12 years; count 5: 14 years; count 6: 14 years. The total potential sentence is thus 12 + 12 + 14 + 14 years = 52 years imprisonment.

(3) The sentences should be served cumulatively as there were four different victims and four separate incidents.

(4) However, under the totality principle, the court should avoid imposing a crushing sentence, thus the total sentence was reduced to 20 years imprisonment, apportioned as follows: counts 3 and 4, 4.5 years each and counts 5 and 6, 5.5 years each.

(5) The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the victims or forgiveness or other resolution of the problems created by the offender.

Cases cited

The following cases are cited in the judgment:

Paul Mase v The State [1991] PNGLR 88; Public Prosecutor v Sidney Kerua [1985] PNGLR 85; The State v Douglas Jogioba (2007) N4085; The State v George Tomeme CR No 920/2002, 24.08.07; The State v James Urig CR No 375/2009, 24.05.10; The State v James Yali (2006) N2989; The State v Jeffery Wangi (2006) N3016; The State v Joe Sime CR No 1078/2004, 25.08.06; The State v Philip Kila CR No 722/2006, 15.07.09; The State v Philip Nangoe CR No 392/2006, 24.10.07; The State v Robert Yochie (2010) N4113; The State v Steven Tari Nangimon Garasai (2010) N4137

SENTENCE

This was a judgment on sentence for an offender who had been convicted of four counts of aggravated rape.

12 November, 2010

1. CANNINGS J: The offender, Steven Tari Nangimon Garasai, commonly known as Steven Tari, is before the court to be sentenced after being convicted, after trial, of four counts of rape in circumstances of aggravation. The offences were committed over a three-month period, from March to June 2006, at Gal village, Madang Province. There are four victims, girls aged 15 to 17 years. Their names are “R”, “F”, “S” and “B”.

2. An indictment containing six charges was presented against him. He was found not guilty of counts 1 and 2 and guilty of counts 3, 4, 5 and 6:

• count 3: rape of “R”, aged 17, on 16 March;

• count 4: rape of “F”, aged about 16, on 31 March;

• count 5: rape of “S”, aged 15, on 27 April; and

• count 6: rape of “B”, aged 15, on 30 May.

3. The accused was aged in his early 30s at the time. He started ‘the Culture Ministry’ in 2005. He preached to the local people and held himself out to be King Yali, a reincarnation of God Yali, the deceased leader of the Yali Movement. The accused’s Ministry was popular and he preached to large gatherings on Sundays. He appointed flower girls to assist in the work of the Ministry and four of them are the victims in this case.

4. In each instance the offender induced the victim to have sex with him by abusing his position of trust, authority or power—by telling her that she needed to have sex with him in order to go to Heaven. The apparent consent that each victim gave was not free and voluntary. The offender believed that he was doing nothing wrong and believed that each victim consented but his state of mind did not provide him with a defence. In each instance the circumstance of aggravation was that he abused a position of trust, authority or dependency, in that he was a religious instructor to the victim. Further...