The State v Ulelo Kera (No. 2)

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 24 August 2016
• Citation: (2016) N6540
• Court: National Court
• Year: 2016
• Judgement Number: N6540

Full : CR No 183 of 2014; The State v Ulelo Kera (N0.2) (2016) N6540

National Court: Lenalia, J

Judgment Delivered: 24 August 2016

N6540

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.183 OF 2014

THE STATE

V

ULELO KERA (N0.2)

Kokopo: Lenalia, J

2016: 18th& 24thAugust

CRIMINAL LAW– Rape of two biological daughters –Sentence after finding of guilty – Sentence – Factors for consideration – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2)

CRIMINAL LAW – Sentence after finding of guilty for six (6) counts of rape, one (1) count of indecent act, one (1) count of assault – Both victims daughters of accused – Charges involved serious aggravating circumstances including breach of trust, authority and dependency.

Cases Cited:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Ian Napolean Setep v The State (2001) SC666

John Aubuku-v-The State [1987] PNGLR 267

Lawrence Indemba v The State (1998) SC593

Robert Solomon v The State (2007) SC871

The State v Peter Kaudik [1987] PNGLR 201

The State v Kenneth Penias [1994] PNGLR 48

The State-v-Penias Moke (No.2) (2004) N2635

The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569

The State v Luke Sitban (11.6.04) N2566

The State v Philip Komo (19.11.09) N3816

The State v Jerome Deila (20.8.09) N3840

The State v Steven Tari Nangimon Garasai (2010) N4155

Other case cited

R v Peter John Kastercum (1972) 56 Cr App R 296

Counsel:

Mr. L. Rangan, for State

Mr. P. Yange, for Accused

25th August, 2016

1. LENALIA, J: The prisoner was charged with eight (8) counts of rape, two counts of indecent acts, one of sexual touching, and two (2) counts of assaults contrary to and s.347(2),s.349 and s.335 of the Criminal Code. He pleaded not guilty and a trial was conducted during which the two victims came to court and testified publicly about what the prisoner, their biological father did to them.

2. He was found guilty of six (6) counts of rape, one for indecent act, and one for common assault. Five of those rape charges were committed against victim J. K. (Joy Kera) and one against R. K (Rachael Kera). Out of the total number of thirteen charges, he was found guilty of eight counts.

Addresses on Sentence

3. On 18th this month, the court heard parties on their addresses on what should be the appropriate penalty. On his last say, the prisoner said sorry to his lawyer and asked for mercy because he is now 53 years old now. He said sorry to the two victims and said, his children have accused him of killing their mother that is his wife. He expressed sorrow to his other children. He asked the court to take into account, the fact that he is from another Province.

4. Mr. Yange submitted that the prisoner has been found guilty of serious charges because, the offences were committed in the family home. Counsel asked the court to take into account the offender has accepted the blame and expressed remorse for what he did to his two biological daughters.

5. Mr. Rangan addressed the court on the seriousness of the charges. Counsel submitted on what he referred to page 17 of the judgment on verdict and said, it could have been a typing error on Count 11. On that page, the court recorded “found guilty & convicted”. I will refer to this later. He asked the court to consider compensation because; the victims are the prisoner’s biological daughters.

Application of Law

6. The National Court and Supreme Court Judges have often expressed great concern over the crime of rape and other sexual offences where men taking the advantage on the weaker members of our societies like on this case. Obviously gender violence must be addressed and contained somehow. The Parliament has legislated and the courts must treat rape and similar cases very seriously. An example of such concern can be found in The State v Kaudik [1987] PNGLR 201 where, Amet J, (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences where the Committee said:

“Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value.”

7. In the National Court case of The State v Kenneth Penias [1994] PNGLR 48, Injia J (as he then was) expressed similar concern where His Honour said:

“Rape constitutes an invasion of the most intimate part of a women’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 or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, in small towns and centres, who once enjoyed freedom and tranquillity, 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.”

8. In Lawrence Indemba v The State (1998) SC593, the Supreme Court there expressed very serious concern about the crime of rape since rape is so prevalent and so violent.

“The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v The State(1997)SC519, and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years”.

9. The crimes that the prisoner committed are very serious indeed. First, the victims are the offenders own biological daughters. There was breach of trust, authority or dependency. The closer the relationship is the more serious breach of trust becomes: The State-v-Penias Moke (No.2) (2004) N2635. This is the reason why the law provides that in an ordinary rape without aggravations, the maximum penalty is 15 years.

10. But where the crime of rape is committed with circumstances of aggravations as defined by Subsection (2) of the section charged and pursuant to the definition in s.347A (2) (a)-(k) of the Code, on circumstances of aggravations, offenders must prepare to meet life imprisonment: The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569.

11. In The State v Philip Komo (19.11.09) N3816, the offender was charged with aggravated rape of his step-daughter breaching the relationship of trust, authority or dependency. The case went through a trial and the offender was found guilty. He was sentenced to 18 years imprisonment. In The State v Jerome Deila (20.8.09) N3840 a similar case as the one before me, aggravated by existing relationship of trust, authority or dependency. The offender was sentenced to 15 years imprisonment.

12. Up to date, the Supreme Court has not set any specific sentencing range for the crime of rape with serious aggravations. However it is clear from decisions on appeals in cases of rape the said Court keeps saying that offences like rape and other sexual offences with aggravations, ought to be met by imposition of high penalties. For instance, in Robert Solomon v The State (2007) SC871 the Supreme Court reduced the sentence of 20 years each on 3 counts of aggravated rape, by 12 years resulting in sentence of 8 years each which were served consecutively making a total of 24 years.

13. The victim in that case was the prisoner’s half-sister. She was subjected to rape and sexual torment at the offender’s hands for over 5 years. The relationship resulted in her getting pregnant and giving birth to a child. He treated her as a sex slave and she was a prisoner in her own home.

14. The...