The State v Peter Kuman

• Jurisdiction: Papua New Guinea
• Judge: Liosi AJ
• Judgment Date: 08 September 2017
• Citation: (2017) N6925
• Court: National Court
• Year: 2017
• Judgement Number: N6925

Full : CR No 341 of 2014; The State v Peter Kuman (2017) N6925

National Court: Liosi AJ

Judgment Delivered: 8 September 2017

N6925

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 341 OF 2014

THE STATE

V

PETER KUMAN

Kundiawa: Liosi AJ

2017: 19th April & 8th September

CRIMINAL LAW – Sentence – Rape S. 347 (1) Criminal Code – Guilty plea – Aggravated rape through restraint and use of weapon namely a coffee stick – Sentencing principles and guidelines discussed – Offenders sentenced to 12 years imprisonment in hard labour less pre-trial custody period.

Case Cited:

Goli Golu v. The State [1979] PNGLR 653

John Aubuku v. State [1987] PNGLR 201;

Lawrence Hindemba v. The State [1998] SC 593

Maima v. Sma [1972] PNGLR 49

State v. Kenneth Penias [1994] PNGLR 51

The State v. Kunija Osake [2003] N2380

The State v. Peter Huli Hahe Haite [2003] N2383

The State v. Damien Mangawi [2003] N2419

The State v. Alphonse Apou Dioro [2003] N2431

The State v. Flotyme Sina (No 2) [2004] N2541

The State v. Eki Kondi and 4 others (No.2) [2004] N2543

The State v. Ezra Hiviki (No 2) [2004] N2548

The State v. Julius Ombi (No 2) [2004] N2552

The State v. Luke Sitban (No 2) [2004] N2566

The State v. Junior Apen Sibu (No.2) [2004] N2567

The State v. Gary Sasoropa and 2 Others (No 2 [2004] N2569

The State v. Kapinias [2016] PGNC 95 N6282

The State v. Lui Gura [2014] PGNC 6193

The State v. Dii Gideon [2002] PGNC 17 N2335

The State v. Ludwick Jokar (No.2) (24.04.08) N3362

Counsel:

Mr. Emmanuel Thomas, for the State

Mr. Misil Yawip, for the Offender

DECISION ON SENTENCE

8th September, 2017

1. LIOSI, AJ : The offender pleaded guilty to 1 Count of Rape contrary to S.347 (1)(2) of Criminal Code as amended.

2. The brief facts for purposes of arraignment are as follows. At around 2pm on 8th October 2011, the accused Peter Kuman was at Kulgai just beside the main Okuk Highway in Kundiawa with his other accomplice one Costello Sikman. The victim, an adult female was taking a walk from Kundiawa town to go back to her village. The accused and his friend followed her from behind and caught up with her. The accused grabbed her shirt whilst his friend lifted her legs and they dragged her into the nearby bush. They threatened her not to scream or shout. The accused then pushed her to the ground and stripped her off her clothes. The accused forcefully opened her legs, removed his trousers and inserted his penis into her vagina. When the accused finished penetrating the victim, he went and acted as a “watchman” keeping an eye out for people whilst his accomplice forcefully penetrated the victim by inserting his penis into her vagina.

3. The accused then attempted to penetrate the victim again, but the victim screamed and resisted. The accused then threatened to hit her with a coffee stick and told her not to scream. He then forcefully inserted his penis into her vagina on the second occasion and sexually penetrated her. After the incident, both men ran away into the nearby coffee gardens. The victim got up, dressed herself came down to the main road, met one Kua Arnold and told him of the ordeal and the identity of the suspects involved. She then hopped on a police vehicle, went to pick up her husband in the village, came to the police station and laid an official complaint. After that, she was taken to the Kundiawa General Hospital for a medical examination. State further alleges that the accused and his accomplice sexually penetrated the victim without her consent and is contrary to Section 347(1) of the Criminal Code (as amended).

4. Rape is defined by S.347(1)(2) in the following terms:

(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. On his statement on allocatus, the prisoner expressed remorse and apologised to the Court. He further said that he is now blind and finds it difficult to move around in prison. He did not state what caused his blindness although his counsel has tried to explain that he was assaulted before the arrest loosing complete use of his right eye.

6. The prisoner is from Gond Village, Kundiawa. He is a member of the catholic faith and has no formal education. He was educated up to grade 4 at Angil Primary School. He is married and has 2 children aged 5 and 2 years respectively. Presently the children are with his wife. He was assaulted before the arrest and has lost the complete use of his right eye. Whilst in prison he relies on other prisoners to assist him move around.

7. The maximum penalty without circumstances of aggravation is 15 years. If there are circumstances of aggravation the maximum penalty is life year subject to S.19 of the Criminal Code. S.19 of the Criminal Code provides for various sentencing options available to the Court. It provides Court the discretion to impose penalties according to circumstances of the case. The Supreme Court case of Goli Golu v. The State [1979] PNGLR 653 stands for the proposition that the maximum penalty is normally reserved for worst case offences.

8. In the case of State v. Kenneth Penias, (1994) PNGLR at 51; his Honour Injia AJ as he then was said;

“Rape constitutes an invasion of the privacy of the most intimate part of a woman’s body. Women become sex objects and sex alone to men like the prisoner who prey upon them and rape them. But woman are after all human beings just like men. They have equal rights and opportunities as men guaranteed under the Constitution. They are entitled to be respected and fairly treated.”

9. Thus custodial sentence is a starting point for the fundamental reasons given above. The maximum penalty is life year’s imprisonment if circumstance of aggravation is pleaded.

10. Sentencing guidelines for rape were set in the case of John Aubuku v. State [1987] PNGLR 201;

Sentencing guidelines for rape given in Aubuku’s case – Old Law

No	Circumstances in which rape committed	Starting point
1	Rape committed by an adult without any aggravating or mitigating features:	5 years
2	Rape committed by: One or more persons acting together; or persons who has broken into or otherwise gained access to a place where the victim is living; Person who is in a position of responsibility towards the victim; or person who abducts the victim and holds her captive.	8 years
3	Rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger.	15 years
4	Rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, where the accused is likely to be a danger if at large in the community.	Life imprisonment

11. Depending on the circumstances of each case, the above serve as a starting point. The sentencing trend has increased since then.

Comparable cases

Table 3: Sentencing for rape since 2003

No	Case	Details	Sentence
1	The State v. Kunija Osake (2003) N2380, Jalina J	Offender raped an 11-year old girl – guilty plea – breach of trust.	18 years
2	The State v. Peter Huli Hahe Haite (2003) N2383, Jalina J	Rape of 11 year-old girl – guilty plea – offender had prior convictions for rapes of young girls	20 years
3	The State v. Damien Mangawi (2003) N2419, Kandkasi J	Offender convicted of unlawful	12 years
4	The State v. Alphonse Apou Dioro (2003) N2431, Davani J	Offender pleaded guilty to gang rape of 15-year old girl – over seven hours – use of bush knives and various other weapons.	16 years
5	The State v. Flotyme Sina (No 2) (2004) N2541, Kandkasi J	Offender convicted after trial of rape of a married woman – no prior convictions – no physical injuries – customary compensation paid.	17 years
6	The State v. Eki Kondi and 4 others (No 2) (2004) N2543, Kandkasi J	Gang abduction and rape in broad daylight – offenders armed with bush knives – threats of violence to third parties – conviction after trial.	18-25 years, depending on degree and participation and age
7	The State v. Ezra Hiviki (No 2) (2004) N2548, Kandakasi J	Rape of 10 year –old girl by older relative – breach of trust – vaginal injuries requiring medical repair – guilty plea – expression of remorse – first – young offender	13 years
8	The State v. Julius Ombi (No 2) (2004) N2552, Kandakasi J	Abduction and attempted rape of a relative – breach of trust – conviction after trial – first, young offender – no remorse.	9 years
9	The State v. Luke Sitban (No 2) (2004) N2566, Kandakasi J	Offender raped a 10-year old girl – conviction after trial – no prior conviction – no physical injuries – no customary compensation paid – no remorse.	17 years
10	The State v. Junior Apen Sibu (No 2) (2004) N2567, Kandkasi J	Rape of a 10 years old girl – breach of trust – conviction after trial – no remorse – first, young offender	13 years
11	The State v. Gary Sasoropa and 2 Others (No 2 (2004) N2569, Kandakasi J	Gang rape of girlfriend and relative – repeated act of rape – conviction...