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

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 11 December 2009
• Court: National Court
• Citation: (2009) N3907
• Docket Number: CR.NO. 1032 OF 2005
• Year: 2009
• Judgement Number: N3907

Full Title: CR.NO. 1032 OF 2005; The State v Sou Mesak, Lavuvat Rereke & Billy Turmur (No 3) (2009) N3907

National Court: Lenalia, J

Judgment Delivered: 11 December 2009

N3907

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1032 OF 2005

THE STATE

-V-

SOU MESAK, LAVUVAT REREKE & BILLY TURMUR (N0.3)

Kokopo: Lenalia, J

2009: 16th November & 11th December.

CRIMINAL LAW – Pack rape – Sentence after finding of guilty –Criminal Code (Sexual Offences and Crimes Against Children) Act, s.347.

CRIMINAL LAW – Sentencing principles on rape cases – No

breach of trust – No weapons used – No injuries– First time offender – Prevalence of offence –Effect of – Sentence of 18 years imposed.

Cases cited.

Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439

Goli Golu v The State [1979] PNGLR 653

The State v Andrew Tovue [1981] PNGLR

Avia Aihi v The State (No.3) [1982] PNGLR 653

Ure Hane v The State [1984] PNGLR 105

John Aubuku v. The State [1987] PNGLR 267

John Elipa Kalabus v The State [1988] PNGLR 193

The State v Sottie Apusa [1988-89] PNGLR 170

The State v Kenneth Penias [1994] PNGLR 48

The State v Thomas Waim [1995] PNGLR 187

The State v Lawrie Patrick & 3 Ors. [1995] PNGLR 195

James Mora Meaoa v The State [1996] PNGLR 280

Lawrence Hindemba v The State (1998) SC 593

The State v Alphones Apou (2003) N2431

The State v Pais Steven Sow (2004) N2588

The State v. Nick Teptep (2004) N2612

The State v Moses Jafisa Winga (No.2) (2005) N2952

The State v James Yali (2006) N2989

The State v Chris Nawa (No.2) (29.7.09) N3732

The State v Henry Umue (21.10.09) Cr.No.454 of 2008

Counsel

L. Rangan, for State

M. Efi, for Accused

11th December, 2009

1. LENALIA, J: The prisoner was amongst a group of three men who were accused of one count of aggravated rape contrary to s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. Only accused Lavuvat Rereke was tried and found guilty on 8th December 2009. The other two co-accused are still at large and the following judgment on sentence only relates to accused Lavuvat Rereke.

3. To understand the nature of the offence and for purposes of the discussion on sentence, I quote the above sections in the following terms:

“347. Defenition 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.”(Emphasis added)

4. Circumstances of aggravation were not pleaded on indictment but the evidence on trial clearly indicates that, the prisoner was in the company of two other accomplices. In the circumstances of the instant case, aggravating factors are highlighted in the interpretation section in s.349A of the Act. It states 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 tortuous 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 accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

(Emphasis added).

5. Section 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.”

6. The prisoner’s case falls under the above definition. He committed the crime although a one off incident committed it together with two co-accused and although the aggravating factors are not pleaded on the body of the indictment, there is no reason why the Court can not make reference to circumstances of aggravations.

7. For purposes of discussion on sentence, let me recapitulate on what evidence transpired on trial. The following pieces of documents were tendered by consent. The record of interview, in Pidgin and the English translation were marked Ex. “1” and Ex. “2”.

8. The statement by the corroborating officer Policewoman Constable Kolish Moab was marked Ex. “3” and that of the interviewing officer was marked Ex. “4”. The interviewing officer of this case was Policewoman Constable Sunema Vue. The certificate of birth of the victim Ex. “5” and the medical report and its annexure Exs. “6” and “6.1”.

9. The victim in this case gave evidence that on Sunday 6th February 2006, she went down to the river to have a swim with her sisters, Elsah Kilang and Wanatuna Kilang. After they arrived at the river, she decided to go to the next village to collect her camera from her uncle’s house. She went up there but found no one was in the house so she decided to return.

10. On her way back, she met Sou Mesak who pulled her by her hand to a secluded location where he raped her. After raping her she decided to run away. However, Lavuvat Rereke (now the prisoner) and another co-accused Billy Turmur came to the scene.

11. The victim’s evidence shows that the prisoner pushed her down to the ground and sexually penetrated her against her will. The last person also had his turn. After raping her, they held the victim captive until 5.30 pm that day.

12. Two other witnesses were called, Elsah Kilang (the victim’s elder sister) and their mother March Kaludia were called as witnesses by the State. They corroborated the victim’s evidence that the victim Makila Kilang arrived very late on the evening of the date she was raped.

13. Their evidence was also accepted as evidence of recent complaint and that she was in a very distressed condition in terms of the principles stated in Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439 and The State v Andrew Tovue [1981] PNGLR 8.

Counsels submission on sentence

14. For the prisoner, Mr. Efi cited a series of cases in support of his submission that, the present case is not a worst type case and the starting point for a sentence should be 8 years. Counsel cited the case of The State v Peter Kaudik [1987] PNGLR 201 and John Aubuku v The State [1987] PNGLR 267 for the tariffs set on those cases. Counsel asked the Court to consider the prisoner is the first offender.

15. For the State, Mr. Rangan submitted on the aggravating circumstances such as the instant case was a pack rape by three men one of whom was the prisoner. Counsel asked the Court to consider the victim was at the age of 15 years when she was raped and the fact that, she was held captive from about 12 noon to about 5.30 pm on the date of the offence. He also raised the issue of indignities caused to the victim when she was being raped by the accused when two co-accused were watching like it was a movie show.

Discussion & Application of law

16. The case before me is one of rape. The offence of rape is always serious because it offends against humanity’s standard of decency and analogous to the crime of robbery. You know in armed robbery cases, a robber steals from someone who helplessly watches what is going on and he or she is robbed of whatever property they may have. Likewise, in a rape case, sexual intercourse is forced upon the victim against her wish. When sex which is the intimate relationship is had without consent, there is no love.

17. The prescribed penalty is a reflection of how serious the Parliament thought these crimes are. It is trite law that each case must be considered in the light of the different and peculiar circumstances under which they were committed. On this head, the Court will look at circumstances under which a crime is committed. Whether it was committed with aggravation or not and if there was what where those aggravations?

18. On considering an appropriate penalty for the prisoner, I am reminded of the principle that the maximum penalty ought to be reserved for the worst type case encountered in practice: Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105.

19. In considering an appropriate sentence to impose in a rape case, the proper approach would be for the court to have regard to the guidelines for sentencing rape offenders set out in John Aubuku v. The State [1987] PNGLR 267. There the Supreme Court suggested the starting point of 5 years for rape by an adult without any aggravating factors and eight years is the starting point where two or more persons gang rape a victim. But that was some 22 years ago and how about today.

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