The State v Peter Paitapo (Prisoner) (2014) N5638

• Jurisdiction: Papua New Guinea
• Judge: Murray J
• Judgment Date: 21 March 2014
• Court: National Court
• Docket Number: CR NO. 364 OF 2011
• Citation: (2014) N5638
• Year: 2014
• Judgement Number: N5638

Full Title: CR NO. 364 OF 2011; The State v Peter Paitapo (Prisoner) (2014) N5638

National Court: Murray J

Judgment Delivered: 21 March 2014

N5638

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 364 OF 2011

THE STATE

v

PETER PAITAPO

Prisoner

Bulolo: Murray J

2014: 21 March

CRIMINAL LAW – sentencing – prisoner found guilty after trial on charges of rape – victim first wife of prisoner - rape of victim under circumstances of aggravation – victim now deceased – victim subjected to sexual acts in front of co-wife – aggravating circumstances outweigh mitigating factors – sentence of 13 years 9 months imposed – s347 Criminal Code Act

Cases Cited

Family & Welfare [1983] PNGLR 424

Allan Peter Utiang v The State Unreported Unnumbered Judgment delivered in Wewak on 23 November 2000 in CR 15 of 2000

State v Ferdinand Nakap Penge (2002) N2244

State v Sinai (No.2) (2004) N2541

State v Donald Engavia & Ors (2004) N2590

State v Ilam Peter (2006) N3090

State v Kamilus (2009) N3760

State v Felix (2011) N4156

State v Clarence Tenemogi (2011) N4364

State v Seke Kapian, Unreported Unnumbered Judgment in CR 108 of 2012

Counsel

Ms M. Zurenuoc, for the State

Mr. E. Sasingian, for the Prisoner

DECISION ON SENTENCE

21 March, 2014

1. MURRAY J: Introduction: Peter Paitapo, this is a Ruling on your Sentence. You had on 7 May 2013 pleaded not guilty to a charge that on 1 January 2010 at Bulolo, you sexually penetrated one Lucy Kaupa without her consent. Following your plea of not guilty, a trial commenced on the same date and on 10 May 2013, this Court found you guilty of the charge of Rape pursuant to s 347 of the Criminal Code Act and convicted you on the same date for the said charge. On 15 May 2013, your lawyer applied for a Pre Sentence Report to be furnished of which I granted the application and adjourned submission on sentence to 20 May 2013. On 20 May 2013 I heard submissions on sentence and reserved my ruling to today.

Facts

2. The facts to which you pleaded not guilty to, resulting in a trial, from which I found you to be guilty of the charge of rape, are set out in my decision on verdict. I do not wish to repeat those facts again, but for purposes of this decision on sentence, I set out the following facts:

You had two wives. The first is the victim, who is now deceased and the second is named Doris, who has since your arrest, left you.

On 1 January 2010, the victim was with her father, at New Camp when you went to her and with force took her to your house.

When you got to your house, Doris, your second wife was already in the house, sleeping on the bed. You then ordered the victim to remove her clothes, but she refused and when she refused, you using a pistol, a knife and a pair of scissors, threatened to kill her if she did not do as you ordered.

In fear of her life, the victim removed all her clothes and was made to do indecent sexual acts with yourself and Doris, including allowing you to sexually penetrate her from behind.

When you were done, you told both women not to report the matter to the police.

Law

3. You were charged and convicted on the charge of Rape which is a serious offence under s 347 of the Criminal Code Act. That section reads:

“(1) A person who sexually penetrates a person with 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.”

4. The punishment prescribed in this section only reflects the seriousness of the offence and it is intended to protect women and girls from sexual predators such as yourself.

5. As you had been convicted the issue now for me to determine is, “what penalty I should impose on you.”

6. In order to determine that, I had to consider what you said in allocutus, your lawyer said on your behalf and compare to what, Counsel for the State has said and at the same time consider and compare your case to similar cases that have already been decided by other Courts.

Allocutus

7. In allocutus, you firstly expressed remorse for what you did and then you asked for mercy from this Court and asked for a lenient punishment in that you asked if this Court can put you on good behaviour bond. When making your request for a lenient sentence you also said that your father is old but is taking care of your children, and if you are not given a lenient sentence your father who has grown old will not be able to look after your children and so there will not be anyone else to do that.

Your Lawyers Submission

8. Your lawyer had firstly asked that this Court take into account the matters and recommendations set out in the Pre Sentence Report which was prepared and submitted to this Court in support of your request for leniency in your sentence.

9. It was also submitted on your behalf by your lawyer that this Court should also take into account mitigating and aggravating factors.

10. As to mitigating factors your lawyer asked this Court to consider, provocation by the victim in a non-legal sense. By that your lawyer submitted that you did what you did because of the following: Firstly the victim left you in 2007 with two children. She then returned in 2010 she had affairs with other men which resulted in you taking her to Court where she was found guilty of adultery and never paid the fine as ordered by the court and so you were provoked into committing the offence.

11. As to the aggravating factors, your lawyer submitted that this offence is a prevalent one in this society.

12. Having made those initial remarks, your lawyer submitted that as you were found guilty of one count of aggravated rape, the starting point for sentences in similar type of offences is 15 years imprisonment which can be adjusted up or down. Your lawyer then went on to submit that I should consider and impose a sentence of 15 years as the starting point and taking into account what you said in allocutus and what is reported in the pre sentence report in particular the recommendation, I should impose a head sentence of 10 years imprisonment.

State Lawyer’s Submission

13. Counsel for the State on the other hand submits that under the provision of the Criminal Code Act where aggravated factors are pleaded which is the case here, the penalty would be life imprisonment and the starting point would be 15 years whilst in all other cases of rape under s 347 of the Criminal Code Act sentences would range from 8 to 18 years. The following cases were cited by Ms Zurenouc: State v Camilus (2009) Unreported N3760; State v Ilam Peter; State v Felix (2011), Unreported N4156; and State v Seke Kapian (2012).

14. Of the three cases cited, it was submitted that the victims and prisoners were related to each other whilst the relationship in your case is one of “a marriage” which is a holy sacrament which you have violated. The victim was not only threatened by you as the husband but was also abused in full view of your other wife. Further it was also submitted that as if it was not enough, you further subjected the victim to assault.

15. In response to your lawyers submission that there existed defector provocation which should act in your favour, Ms. Zurenuoc submitted that the Court had already believed the victim who is now not alive and not here to respond to the matters raised in the defector provocation and so the Court should find there is no such provocation.

16. In conclusion it was submitted by Ms. Zurenuoc that an appropriate sentence for you would be 25 years and that you should be sentenced to 25 years imprisonment in hard labour.

The Seriousness of the Offence

17. Rape is a very serious offence. Courts have from time to time said that rape is a violent crime which involves traumatising a victim. Under the Criminal Code Act as Amended by the Criminal Code (Sexual & Crimes against Children Act) where there exist circumstances of aggravation in the commission of the offence it attracts the maximum penalty of life imprisonment subject to s 19 of the Criminal Code Act and in cases where no aggravation exist the maximum penalty is imprisonment for 15 years. Considering the penalty under the Criminal Code Act as Amended the offence of rape is a very serious offence.

18. In State v Donald Engavia & Ors Unreported Judgment of Justice Kandakasi delivered on 29 April 2004 in the proceedings CR No. 256 of 2004, His Honour in defining the meaning and purpose of the Amendment to the Criminal Code Act, held that:

“What this means in my view is that where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise then this amendment has no meaning and purpose because it makes no difference between the previous position and the new provisions.”

Sentencing Trend

19. Prior to the amendments, sentences range from as low as 5 years where Courts held the view that circumstances of a case...