The State v Clarence Tema Mongi (2011) N4364

• Jurisdiction: Papua New Guinea
• Date: 17 May 2011
• Citation: (2011) N4364
• Docket Number: CR 575 OF 2010
• Court: National Court
• Year: 2011

Full Title: CR 575 OF 2010; The State v Clarence Tema Mongi (2011) N4364

National Court: Kariko, J.

Judgment Delivered: 17 May 2011

CRIMINAL LAW—SENTENCE—Rape—Guilty plea—Weapon (Bayonet) used—Two victims raped in the presence of each other - One victim suffered cut fingers—Another victim holding a baby when assaulted - Escapee—Prior conviction for wilful murder—Sentencing trends - Need for punitive and deterrent sentences - Concurrent or cumulative sentences—Totality principle.

The prisoner who was awaiting sentence for wilful murder escaped and committed rapes upon two women after forcing them out of their house at night with a bayonet. He was indicted on two counts of aggravated rape.

Held:

1. The starting point for sentence for an offence under s347(2) Criminal Code—rape with circumstances of aggravation or “aggravated rape”—is 15 years imprisonment, which may be adjusted upwards or downwards depending on mitigating and aggravating factors as well as extenuating circumstances.

2. Guilty plea greatly outweighed by serious aggravating factors.

3. A lengthy jail sentence is warranted to act as a deterrent (personal and public) and protect the community.

4. The appropriate sentence for each count of aggravated rape is 20 years imprisonment:

(a) to be served cumulatively as the offences involved different victims; but

(b) applying the totality principle, the total sentence reduced from 40 years to 24 years imprisonment.

Cases cited:

The State v Kenneth Penias [1994] PNGLR 48; The State v Nick Teptep (2004) N2612; John Aubuku v The State [1987] PNGLR 267; Thomas Waim v The State (1997) SC519; Lawrence Hindemba v The State (1998) SC593; The State v Joe Kanau Tomitom (2008) N3301; Robert Solomon v The State (2007) SC871; The State v Clarence Tema Mongi (2007) N3259; Paul Mase v The State [1991] PNGLR 88; Kesino Apo v The State [1988] PNGLR 182; Public Prosecutor v Sidney Kerua [1985] PNGLR 85

17 May, 2011

SENTENCE

1. KARIKO J: The prisoner was remanded in custody at the Buka Police Lockup for sentence by the National Court after a conviction for wilful murder when he somehow walked out of the cells on Saturday morning 23 June 2007. During the course of that day he got himself intoxicated with home-brew and sometime between 9 and 10 o’clock in the night, he entered the residential yard of two women Fidelma Lahis (Fidelma) and Helen Eron (Helen) who were then living on their own at the hamlet of Kero on Buka Island. Fidelma 24 years old and single, was staying with her aunt Helen and her young children. After the prisoner arrived in the yard, he saw Fidelma getting up from near the flower garden where she had just relieved herself. He approached from behind, grabbed her and threatened her with a bayonet not to shout or else he would stab her. Fidelma managed to struggle free by grabbing the bayonet with her right hand and pushing it away, and then she ran into her house.

2. The prisoner followed her in to the house and found her with Helen who was holding her 1 year old baby. He forced the two women out of the house with the bayonet and marched them to nearby bushes where he forced them to undress and then moved them further to another area amongst banana trees where they were instructed to lay down next to each other facing upwards. He then had sexual intercourse with Fidelma first and then Helen, each against their will. While he had sexual intercourse with each of the victims, he held the bayonet threateningly at the neck of the other as she...