CR. NO 1007 OF 2010; The State v Robin Andolu (No. 3) (2013) N5129

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 21 March 2013
• Court: National Court
• Citation: (2013) N5129
• Year: 2013
• Judgement Number: N5129

Full Title: CR. NO 1007 OF 2010; The State v Robin Andolu (No. 3) (2013) N5129

National Court: Kirriwom, J

Judgment Delivered: 21 March 2013

N5129

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1007 OF 2010

THE STATE

–v-

ROBIN ANDOLU

Wewak: Kirriwom, J

2012: 22 & 23 November,

10 December

2013: 20 & 21 March

(No. 3)

CRIMINAL LAW – Sentence – Rape – Pack rape – Excessive violence – Use of weapons to gain entry into residence – Perverted sexual acts – Penile penetration of vagina and anus – Insertion of fingers inside vagina – No remorse – Sixteen years imprisonment.

Cases cited:

The State v Peter Kaudik [1987] PNGLR 20

The State v Michael Amuna Koupa [1987] PNGLR 208

The State v John Aubuku [1987] Unnumbered and unreported

The State v Thomas Waim [1995] PNGLR 185

The State v Kevin Mariano [2000] PNGLR 240

The State v Alphonse Apou Diono [2003] N2431

The State v William Kapris Nauna [1997] N1659

The State v Ndrakum Pu-Uh [2005] N2949

The State v Lawrie Patrick and 3 Ors [1995] PNGLR 195

The State v James Yali [2005] N2988

The State v Apolo Kesu [2006] Cr. 685 of 2004 (June 2006)

The State v Francis Kavun and Robin Andolu [2013] Cr.1041 & 1007 of 2010

John Aubuku v The State [1987] PNGLR 267

Counsel:

C. Sambua, for the State

J. Malambaul, for the Accused

REASONS FOR SENTENCE

21st March, 2013

1. KIRRIWOM, J.: Robin Andolu of Kandinge village of Wosera-Gawi LLG was found guilty of rape after a trial and convicted. He raised a defence of alibi and said that at the material time of the offence which was between 5 and 6 o’clock in the morning of 23 June 2010, he was not in Makun Settlement where this incident occurred, he was sound asleep at Boram Bridge Settlement, having gone there previous evening to play cards at Boram beach in the company of Wesley Kakandi. The court found on the overwhelming evidence of the victim, Susan Misha, that Robin Andolu was an active perpetrator in this gang-rape upon her and it was not possible that he could have been in two places at the same time and being two different persons, one sleeping at Boram Bridge Settlement and the other actively and physically involved in sexually molesting the victim in her own house at Makun Settlement. The alibi story was found to be quite weak and had too many holes in it.

2. According to the story, the principal player/instigator in this rape was Francis Kavun who pleaded guilty some months ago and was sentenced to 10 years by His Honour Geita, AJ on 15 March, 2013. A week or so preceding this rape, a relative of the victim was accused or alleged to have committed adultery with Francis Kavun’s wife. The incident was not reported to the police but compensation demand was made of the man and given time within which to meet that demand. Time given was running out and no sign of such reconciliatory move was forthcoming so the prisoner, led by Francis Kavun and other close family members decided to even the score by taking the law into their own hands.

3. In the early hours of the morning of 23rd June, 2010, between 5am and 6am went to the victim’s house forcefully gained entry into the house while armed with one meter long bush knife and a home-made shot-gun after threatening and demanding her to open the door. An in-law who stayed with her, in fear of being harmed opened the door and the prisoner and others namely Francis Kavun, Justin Kavun, Pitts Mali and Alison Mali rushed inside the house and converged upon the victim, violently and physically manhandling her as they removed her shorts down and Justin Kavun was the first to sexually penetrate the victim’s anus from behind with his penis. She was then forced onto the floor and held down when Francis Kavun sat on her chest and wanted to insert his penis into her mouth which she resisted and he blocked and squeezed her nose to suffocate her from breathing. Meanwhile, the prisoner Robin Andolu and Alesan Mali penetrated her vagina with their fingers.

4. She was then thrown down to the ground from the house where Francis Kavun dragged her into the bushes near the house. Pitts Mali cut her ear with a knife as she was being dragged. In the bushes Francis Kavun sexually penetrated her by which time she had been weakened by the amount of physical trauma exerted upon her by the men inside the house and being thrown to the ground. She could no longer put up anymore resistance as Francis Kavun avenged his wife’s adultery with the victim’s young brother and reminding her of why he was doing this to her. By the time Francis Kavun was finished with her she was physically traumatised and done, naked as her shorts had been removed and it was already daylight and she had nothing on her. Francis Kavun had some decency enough to lend her his shorts to wear and he helped her by physically supporting her to walk to an aunt’s place some distance away, where he left her on the lawn and decamped. There she was found by the aunt’s child who alerted her mother and they sought medical attention that morning.

5. Medical Report compiled by Dr G Naboam SMO (O & G) of Boram Hospital where the victim was examined confirmed that she was presented with distressed condition, blood stained t-shirt on left shoulder where her left ear cartilage was cut out which was treated at the A&E. The vulva had some grass on the left labia minor and the perineum was moist. Vaginal vault contained whitish, viscous fluid in the posterior fornix although no lacerations or tears found in the vulva. The doctor’s conclusion was that she was sexually attacked.

6. Under the amended Criminal Code, penalty for rape under section 347 has two types. For what is sometimes referred to as rape simpliciter, a maximum term of imprisonment is 12 years, whereas a more serious case of rape with attendant aggravating features carries a maximum term of life imprisonment. This particular rape was committed with circumstances of aggravation so the maximum penalty is life imprisonment. But whether the prisoner gets the maximum sentence depends on the seriousness of this case. Is this a worst case of rape? The law is quite clear. The maximum punishment must be reserved for the worst case. Is this a worst case of rape or pack-rape?

7. In my view, there have been worst cases of pack-rape than this, cases like The State v Peter Kaudik [1987] PNGLR 201, The State v Michael Amuna Koupa [1987] PNGLR 208. The State v John Aubuku [1987] Unnumbered and unreported, The State v Thomas Waim [1995] PNGLR 185 and the list goes on. If similar cases as these were committed these days, they would be looking at nothing less than 25 years imprisonment.

8. Sentences for pack-rapes or gang-rapes range from 14 years to 25 years irrespective of what the plea is. In the case of The State v Kevin Mariano [2000] PNGLR 240 the prisoner who was a member of a group of persons who raped the victim, a married woman who was grabbed outside her gate as she left for work early in the morning and pack-raped was sentenced to 20 years for rape and 5 years for abduction. Both sentences ordered to be served concurrently. And in The State v Alphonse Apou Diono [2003] N2431 where 10 men broke into the victim’s parents house and after assaulting and threatening her father with bush knives and guns, abducted the victim to a secluded place where they took turns raping the victim, a 15 year old girl. She suffered severe genital and bodily injuries. He was sentenced to sixteen years with hard labour. In the case of The State v William Kapris Nauna [1997] N1659 the prisoner and several other men armed with guns and bush knieves abducted the victim and took her to various locations around Kimbe where each took turns in raping her vaginally and anally as well as performed perversive sexual acts and indignities on her throughout the night before releasing her. She was three months pregnant. He was sentenced to 14 and 15 years concurrent sentences on two counts of rape. The only pack-rape case that attracted sentence below this range was The State v Lawrie Patrick and 3 Ors [1995] PNGLR 195 where Sevua J imposed 12 years on the prisoners who were serving members of the Defence Force Lombrum Naval Base as they only assisted the principal in the commission of rape upon the victim in the confines of the Naval Base by holding her down while their comrade raped her. There were no physical injuries other than forced invasion of her sexually. They were found guilty as aiders and abettors under section 7 of the Code. The Court sentenced them to 12 years imprisonment.

9. In trying to reflect this serious view of the crime of rape with aggravating circumstances not only involving more than one offenders/attackers against the victim, but also other factors like the use of dangerous weapons to induce submission and degree of relationship between the victim and the offender, Cannings, J imposed 12 years, near maximum sentence of the prisoner James Yali, then the serving Governor of Madang Province who forcefully had sex with his de facto’s little sister in his office while holding an important national office and desecrating the office of the Governor of Madang, see The State v James Yali [2005] N2988. This was a non-violent but forceful sexual penetration that the prisoner was able to achieve...