The State v Benson Kekene (No.2)

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 28 March 2014
• Citation: (2014) N5768
• Court: National Court
• Year: 2014
• Judgement Number: N5768

Full : CR.NO.790 OF 2012; The State v Benson Kekene (No.2) (2014) N5768

National Court: Lenalia, J

Judgment Delivered: 28 March 2014

N5768

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.790 OF 2012

THE STATE

-V-

BENSON KEKENE

(NO.2)

Kokopo: Lenalia, J.

2014: 11th, 20th & 28th March.

CRIMINAL LAW – Three counts of aggravated rape – Sentence after findings of guilty to each count – Principles of sentencing

CRIMINAL LAW – Rape cases aggravated by threats of violence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2).

CRIMINAL LAW – Weapon used to threaten victim – No injuries or other aggravating factors – First time offender – Prevalence of offence – Parliament amending law on sexual crimes – Effect of – Sentence of 15 years imposed - Section 347 of Criminal Code.

Cases cited:

The Secretary for Law v Suares [1974] PNGLR 288

The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

John Aubuku v The State [1982] PNGLR 267

State v Peter Kaudik [1987] PNGLR 201

Thomas Waim-v-The State (1997) SC519

Lawrence Hindemba v State (1998) SC593

The State-v-Alphones Apou (2003) N2431

The State-v-Pais Steven Sau (2004) N2588

The State v Nick Teptep (2004) N2612

The State-v-Dibol Petrus Kopal (2004) N2778

The State-v-James Yali (2006) N2989

The State v Tomitom (2008) N3301

Counsel

Mr. L. Rangan, for the State

Mr. P. Kaluwin, for the Accused

28th March, 2014

1. LENALIA, J: On 11th this month, the prisoner, Benson Kekene was found guilty on three counts of aggravated rape pursuant to s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, (the Criminal Code). He was found guilty on the evidence which established that, on 23rd day of May 2012 at Kinabot Stage 1, Kokopo town, he sexually penetrated Serra Ronny against her will.

2. The evidence on trial was that, at the relevant date, the prisoner allured the victim into a banana patch on the top of the hill, he then used a small bush-knife to threaten her and thereafter, he sexually penetrated her against her will. After releasing his sperm, he rested for some time and he repeated sex two other times. Whilst doing what he did to the victim, he used his hands to block the mouth of the complainant to stop her from calling out and at the same time, threatened to cut her if she shouted.

3. What remains for the court to do now is to determine what penalty should be given to the offender.

Addresses on Sentence.

4. On his address on his final say, the prisoner said, he is sorry for committing this offence. He said sorry to the victim and her parents, to his parents and to the State and asked if the court could consider giving him a good behaviour bond.

5. Mr. Kaluwin of counsel representing the prisoner submitted the following mitigations and asked the court to consider them on sentence:

· First time offender,

· No injuries were caused to the victim,

· There may have been prior relationship between the prisoner and victim,

· The court to consider the pre-sentence and means assessment reports and comments by the victim asking for K1,000.00 compensation and a good behaviour bond be given to the prisoner.

6. Counsel submitted that his is an appropriate case where the court should consider restorative justice and the court should consider imposing a term of not more than 5 years and have it fully suspended.

7. Mr. Rangan of counsel for the submitted State that since this were rape cases aggravated by threat of violence, the court should consider punitive penalties and to take into account the fact the three offences were committed together and that they arose out of the same set of circumstances and the court should consider concurrent sentences.

Law

8. The three charges on which you were found guilty of are all serious in nature. They are serious because, the law on sexual penetration without consent of the victim, the prisoner could be sentenced to long terms of imprisonment. In the instant case where circumstances of aggravations were established by the prosecution evidence, the prisoner can be sentence to life imprisonment. This is subject to the sentencing discretion provided by s.19 of the Criminal Code.

The phrase “circumstances of aggravation” is referred to in s.347 (2) of the Criminal Code but it does not clearly identify what constitutes circumstances of aggravations. I quote both Subsection (1) and (2) of the above section. It states:

“347. Definition 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.”

9. Note the difference between ordinary cases of rape and those cases which are aggravated by circumstances of aggravations. Circumstances of aggravation were pleaded on indictment as well the evidence on trial clearly established that, the prisoner used his hands to close the victim’s mouth to stop her from calling out for help. He also had laid his bush-knife near where they were having sex and he warned her then threatened her that if she shouted, he would cut her up.

10. Circumstances of aggravations are not fully defined in Subsection (2) of the above Section, but s.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.”

11. Further definition of the term can be found in s.349A (a)(i) of the Criminal Code. There may be other forms of aggravations and as such. The phrase or definition cannot be limited to what is defined in that provision. It 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 tortures 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 complainant was pregnant at the time of the offence; or

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

12. The prisoner’s case falls under Subsection (b) of the above section. He committed the crime three times so that the offences you committed occurred one after the other and although the prisoner said in his evidence that the acts of sexual intercourse it may have been consensual acts, he is liable to a greater punishment than one where he would have been liable if circumstances of aggravation were not present.

13. In fact, Benson, you must understand that today, you could be sentenced to life imprisonment according to s.347 (2) of the Act. The public must be made aware and be warned of the seriousness of such crimes as rape or other sexual crimes that there is law protecting victims from sexual abuse from predators who take advantage of young girls like the one you raped.

14. As the evidence shows, within that one or two hours hold up of the victim, you repeatedly had forceful sexual intercourse upon her. You said in your evidence that sex was consensual. You were represented by able counsels who know well the law about sexual penetration on the Criminal Code Amendment Act where s.229F provides that, in cases of sexual offences brought under Division 2A, consent is not a defence.

15. The Supreme Court which is the final Court of Appeal and the National Court have often called for strong and punitive sentences as a means to deter the crime of rape: John Aubuku v The State [1982] PNGLR 267. In the above case the Supreme Court said that an offender who commits an offence of rape without any aggravations sentences should range from 5 years and upwards. But that range is now outdated but the discussion of the law is good. The Supreme Court has often expressed sentiments that rape is violation of the women’s right of privacy. In Lawrence Hindemba v State (1998) SC593 the Supreme Court said:

“The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court...