The State v Kapil Omba (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 13 April 2011
• Citation: (2011) N4250
• Court: National Court
• Year: 2011
• Judgement Number: N4250

Full : CR No 1243 of 2008; The State v Kapil Omba (No 2) (2011) N4250

National Court: Makail, J

Judgment Delivered: 13 April 2011

N4250

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1243 OF 2008

THE STATE

v

KAPIL OMBA

(No 2)

Mount Hagen: Makail, J

2011: 08th & 13th April

CRIMINAL LAW - Sentence - Rape - Circumstances of aggravation - Pack rape - Use of weapons - Victim abducted during raid of village - Injuries sustained by victim - Conviction after trial - Long custodial sentence appropriate - Sentence of 18 years imprisonment imposed - Suspension inappropriate - Criminal Code, Ch 262 - Sections 19, 347 & 571(1)(b).

Cases cited:

Ure Hane -v- The State [1984] PNGLR 105

The State -v- Ilam Peter (2006) N3090

The State -v- Flotyme Sina (No 2) (2004) N2541

Ian Napoleon Setep -v- The State (2001) SC666

The State -v- Dii Gideon (2002) N2335

The State -v- Eki Kondi & 4 ors (No 2) (2004) N2543

The State -v- Gary Sasoropa & 2 Ors (No 2) (2004) N2569

The State -v- Donald Poni (2004) N2663

The State -v- Henry Nandiro (2004) N2668

The State -v- James Mora Meaoa [1996] PNGLR 280

Thomas Waim -v- The State (1997) SC519

The State -v- Eddie Peter (2001) N2297

The State -v- Kemou Kumou (2004) N2684

The State -v- Luke Sitban (No 2) (2005) N2566

The State -v- Moses Jafisa Winga (No 2) (2005) N2958

The State -v- Sou Mesak, Lavuvat Rereke & Billy Turmur (NO 3) (2009) N3907

The State -v- Kenneth Penias [1994] PNGLR 48

Counsel:

Mr J Waine, for the State

Mr C Kos, for the Prisoner

SENTENCE

13th April, 2011

1. MAKAIL, J: The prisoner was convicted following a trial on one count of rape of one Dorin Dickson in the early hours of the morning of 31st August 2007 at Kalanga village in the North Waghi District of the Western Highlands Province under section 347 of the Criminal Code, Ch 262. At the time of decision on verdict, he failed to appear and the decision was handed down in his absence pursuant to section 571(1)(b) of the Criminal Code, Ch 262.

2. Following the decision on verdict, a warrant of arrest was issued by the Court for his immediate arrest and detention. When the matter came up for addresses on sentence, he was yet to be apprehended. This has rendered the continuance of the proceeding in his presence impracticable. On the State’s application, I ordered the hearing to proceed in his absence pursuant to section 571(1)(b) of the Criminal Code, Ch 262. This is my decision on sentence.

BRIEF FACTS

3. On 31st August 2007, at about five o’clock in the morning, the prisoner and his tribesmen raided a village called Bunowou near Banz station of the Western Highlands Province. The prisoner and his tribesmen were armed with shot guns and bush knives. They surrounded the house in which the victim and other occupants were in and broke down the door. They went in and threatened the victim and other occupants. They forced the victim out of the house and took her to the main road. As they went further up the road, they cut her clothes with bush knives and when they were some distance away from the house, they forced her onto the ground and sexually penetrated her without her consent. There were six men who sexually penetrated her and the prisoner was the fifth person.

THE LAW

4. Rape is an offence under section 347 of the Criminal Code, Ch 262. 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.”

5. It carries a maximum penalty of life imprisonment if it is committed in circumstances of aggravation. The maximum penalty is usually reserved for the worst case under consideration. This is because the Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser penalty: see Ure Hane -v- The State [1984] PNGLR 105.

PRISONER’S SUBMISSIONS

6. In his address to the Court, counsel for the prisoner submitted the prisoner is about 60 years old and comes from Kalanga village in Banz District in the Western Highlands Province. He is a village elder and was employed by Kimil Health Centre as an ambulance driver for the last 10 years. He is a member of the Roman Catholic church and is married to two wives with 6 children between them. He has no formal education but is a village leader.

7. In submissions in mitigation, counsel submitted the prisoner is a first offender and this was a one off case of rape. There is no direct evidence establishing he used an offensive weapon to procure the commission of the offence although he was in the company of five men and they were armed with bush knives. The victim did not sustain any permanent physical injuries and there is no evidence that she suffered any permanent mental disabilities. There is no evidence she was infected with any sexually transmitted disease or HIV Aids. Very importantly, there is no relationship of trust, dependency or authority between the prisoner and the victim.

8. There was no pre-planning. It was a spontaneous act as while the men raided Bunowou village, they came across the victim and took the opportunity to rape her. She was not subjected to further acts of sexual penetration or indignities. There was presence of de-facto provocation because the raid which led to the rape of the victim was a result of Bunowou village peoples’ failure to pay compensation to the relatives of a deceased person. The prisoner is of good character. He is a respected leader in the community and is not a sexual predator. On 29th October 2007, he was arrested in Mt Hagen when he came to discuss the rape incident with the police and was charged. He was subsequently released on bail and on 14th December 2007, was committed to stand trial in the National Court.

9. His counsel submitted this is not a worst case of rape which would attract the maximum penalty of life imprisonment although he conceded it was a pack rape case. He referred to the case of The State -v- Ilam Peter (2006) N3090 and submitted, in that case, Lay, J applied 15 years imprisonment as the starting point and depending on the aggravating and mitigating factors, the Court may increase or decrease it. He asked the Court to use 15 years as the starting point.

10. He then referred to the cases of The State -v- Flotyme Sina (No 2) (2004) N2541, Ian Napoleon Setep -v- The State (2001) SC666, The State -v- Dii Gideon (2002) N2335, The State -v- Eki Kondi & 4 ors (No 2) (2004) N2543, The State -v- Gary Sasoropa & 2 Ors (No 2) (2004) N2569, The State -v- Donald Poni (2004) N2663 and The State -v- Henry Nandiro (2004) N2668 and submitted, these cases show that in a pack rape case where offensive weapons were used, the Courts have gradually increased the sentences and the sentences ranged from 15 years to 25 years imprisonment.

11. For the prisoner’s case, he submitted a sentence of 14 years imprisonment with a quarter of it suspended would be a fair and appropriate sentence in the circumstances.

STATE’S SUBMISSIONS

12. Counsel for the State argued this was a serious case of rape because a number of circumstances of aggravation were present. First and foremost, the prisoner contested the charge. The State was forced to call the witnesses including the victim to testify against him. The victim had to re-live the bad memories of the ordeal. Further, the State had to spent money to bring the witnesses to testify against him. Secondly, the prisoner was one of six men who raped the victim. It was a pack rape. Thirdly, the victim was abducted from her aunt’s house in the early hours of the morning and taken to a place far from the village and raped.

Fourthly, weapons were used.

13. In this case, the men were armed with bush knives and it does not matter if the prisoner was not armed because he was a principal offender by virtue of section 7 of the Criminal Code, Ch 262. Fifthly, the victim was a young girl of 16 years old. The sixth aggravating feature was that, there was threat of violence made against the victim. The seventh aggravating feature of this case was that, given the prisoner’s absence, no offer of apology has been made and there was no indication that the prisoner made compensation to the victim.

14. He referred to the cases of The State -v- James Mora Meaoa [1996] PNGLR 280, Thomas Waim -v- The State (1997) SC519, The State -v- Eddie Peter (2001) N2297 and The State -v- Kemou Kumou (2004) N2684 and submitted that these cases generally established that sentencing tariff for rape cases whether pack or otherwise have increased. At the time James Mora Meaoa’s case (supra) was decided, the sentences for rape were under 15 years imprisonment. In recent times, the Courts have imposed sentences between 18 and 25 years imprisonment. This was an indication the judges were now fully aware of the prevalence of the offence and the need to combat it. For these reasons, he submitted the Court...