The State v Clarence Tema Mongi (2011) N4364

• Jurisdiction: Papua New Guinea
• Judge: Kariko, J.
• Judgment Date: 17 May 2011
• Docket Number: CR 575 OF 2010
• Citation: (2011) N4364
• Court: National Court
• Year: 2011
• Judgement Number: N4364

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

National Court: Kariko, J.

Judgment Delivered: 17 May 2011

N4364

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 575 OF 2010

THE STATE

v

CLARENCE TEMA MONGI

Buka: Kariko J

2011: 4, 5 & 17 May

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 section 347(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. Tomitom (2008) N3301

Solomon v. The State (2007) SC871

The State v. Clarence Tema Mongi (2007) N3259

Mase v. The State [1991] PNGLR 88

Apo v. The State [1988] PNGLR 182

Public Prosecutor v. Sidney Kerua and Billy Kerua [1985] PNGLR 85

Counsel:

Mr F Popeu, for the State

Mr M Yawip, for the Defence

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 lay nearby in compliance with his directions.

3. The prisoner was convicted upon his pleas of guilty to two counts of rape with circumstances of aggravation pursuant to section 347(2) Criminal Code.

Allocatus

4. On allocatus, the prisoner again admitted to the offences and asked the court to exercise mercy.

Prisoner’s antecedents

5. The prisoner is aged 26 years, single and comes from Lonahan village, Buka. His parents are alive and he is the last born in a family of seven children. He is a member of the Catholic church. He reached Grade 7 education at Lonahan Primary School in 1999 but did not complete that grade due to difficulties with school fees. Since leaving school, he has never been formally employed.

6. He has a criminal record:

(a) He was convicted for stealing by the District Court in 2000 and fined K100.00; and

(b) He was then convicted for willful murder by the National Court on 17 July 2006 and sentenced to death on 12 December 2007.

The latter conviction is obviously more relevant and significant in considering sentence for the present matter and I will further refer to it later in this decision.

The law

7. Rape with circumstances of aggravation under section 347(2) Criminal Code carries a maximum penalty of life imprisonment.

8. To clearly reflect the view of the general public that sexual offences are repulsive and contrary to common decency and values and that sexual offenders must be severely punished, legislature enacted stern penalties designed to protect the victims of such offences - women and children and other vulnerable persons. The amendment to section 347 Criminal Code in 2002 introduced two penalty provisions for rape – “rape simpliciter” attracts a maximum penalty of 15 years imprisonment while a maximum of life imprisonment is available for “aggravated rape”.

9. Injia, AJ in The State v. Kenneth Penias [1994] PNGLR 48 at p.51 stated this of rape:

Rape constitutes an invasion of privacy of the most intimate part of a woman's body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent offence in this country. Women in towns and in villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence.

10. In The State v. Nick Teptep (2004) N2612, Sevua, J echoed similar sentiments. His Honour remarked:

Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection.

11. I fully endorse these well-expressed statements by their Honours.

12. In John Aubuku v. The State [1987] PNGLR 267 the Supreme Court approved sentencing guidelines for rape, and stated that immediate punitive custodial sentence is required unless there are exceptional circumstances. The guidelines recommended sentences between five (5) years for rape in less serious cases of rape to life imprisonment. Since the late 90’s, the courts have varied and increased the recommended tariffs, considering them as outdated given the increase in such crimes. See Thomas Waim v. The State (1997) SC519; Lawrence Hindemba v. The State (1998) SC593; and The State v. Nick Teptep (supra).

13. In The State v Tomitom (2008) N3301 Kandakasi, J provides a useful discussion on the development of the law and the sentencing trends in rape cases, and observed that sentences for rape has increased in recent years whereby aggravated rape now attracts sentences of over 15 years imprisonment. It appears that in the more serious cases involving gang rapes after abduction of a victim and the use of weapons have incurred sentences of up to 25 years.

14. I note that in discussing the two penalty provisions for rape, His Honour suggests that “rape simpliciter” attracts a sentence of up to 15 years, while the sentence for an “aggravated rape” should be 15 years upwards. I take the latter part of the proposition to be a reference to a starting point for sentence rather than a minimum sentence. I read...