N2814

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 26 0F 2002

THE STATE

V

JOHN RITSI KUTETOA

BUKA: CANNINGS J
14, 16, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, sexual penetration of a child – sentence on plea of guilty – offence occurred prior to commencement of law under which indictment presented – repeal of Criminal Code, Sections 213 (defilement of girls under 12) and 216 (defilement of girls under 16 and of idiots) – whether offender should be charged under old law or new law – Constitution, Section 37 (protection of the law) – Criminal Code, Section 11 (effect of changes in law) – Interpretation Act, Section 63 (effect of repeal) – acceptance of indictment presented under new law, Section 229A – whether maximum penalty is determined by old law or new law – no disparity between penalty regimes due to age of victim – offender aged 39 at time of offence – child aged 10 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – physical injury – existing relationship of trust – offender stepfather of child – isolated incident – offender under influence of alcohol – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – not a youthful offender – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 17 years. 

Cases cited:
Baiza Tadu Avona v The State [1986] PNGLR 148
Kape Sulu v The State (2003) N2456 
Public Prosecutor v Don Hale (1998) SC564
The State v Dibol Petrus Kopal (2004) N2778 
The State v Eddie Trosty (2004) N2681
The State v Jason Rihata (2005) CR No 171 of 2005, unreported
The State v Kemai Lumou (2004) N2684
The State v Kambi Sipris (No 2) (2003) N2453
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Lare (2004) N2557
The State v Thomas Pipon [1988-89] PNGLR 179

Counsel:
L Rangan for the State
L Siminji for the accused

CANNINGS J: 

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years. The girl child was the stepdaughter of the man

BACKGROUND 

Incident

The incident giving rise to the charge took place at Hanahan village, Buka Island, Bougainville, in 2002. 

Indictment

On 14 March 2005 he was brought before the National Court and faced the following indictment:

John Ritsi Kutetoa of Hanahan, Buka Island, Bougainville, Papua New Guinea, stands charged that he … on the 12th day of April 2002 at Hanahan … engaged in an act of sexual penetration with Mecklyn Naneibia Matalaula [the complainant], a child under the age of 16 years and at the time there was an existing relationship of trust between John Ritsi Kutetoa and [the complainant].

The indictment was presented under Section 229A of the Criminal Code (sexual penetration of a child).

PRELIMINARY ISSUES

Query

When the indictment was presented I queried whether it was properly drafted as the alleged offence occurred in April 2002. That predated the commencement of Section 229A by almost 12 months. 

New law

Section 229A is a relatively new law. It was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that its equivalent provisions were Section 213 (defilement of girls under 12) and Section 216 (defilement of girls under 16 and of idiots). Section 213(1) made it a crime to have unlawful carnal knowledge of a girl under the age of 12 years. The maximum penalty was imprisonment for life. Section 216(1) made it a misdemeanour for a person to have or attempt to have unlawful carnal knowledge of a girl under the age of 16 years. The maximum penalty was five years. Sections 213 and 216 were repealed by Act No 27 of 2002.

Act No 27 of 2002 was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.) 

Issues

The State proposed to indict a person under a law that in some respects did not exist at the time he allegedly committed the offence. The law had been enacted by the Parliament. But it had not commenced operation. Is that proper? And if it is, what penalty would be applied to the person found guilty? The penalty under the new law or the penalty under the old law?

These issues are addressed in a number of different laws. 

Law

Section 37(2) of the Constitution (protection of the law) states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

Section 37(7) of the Constitution (protection of the law) states:

No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

Section 11 of the Criminal Code (effect of changes in law) states:

(1)	A person cannot be punished for doing or omitting to do an act unless—

(a)	the act or omission constituted an offence under the law in force when it occurred; and
(b)	doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2)	If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law. 

Section 63 of the Interpretation Act (effect of repeal) states:

(1)	The repeal of a provision does not—

(a)	revive anything not in force or existing at the time at which the repeal takes effect; or
(b)	affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or
(c)	affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or
(d)	affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or
(e)	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

(2)	The repeal of a statutory provision that validated or continued in force any act, matter or thing does not affect the validation or continuance.

Precedent

The effect of those laws on prosecutions brought under the provisions of the Criminal Code, which have been added or amended by Act No 27 of 2002, where the alleged offence pre-dated the commencement of that Act, has been considered in at least three National Court cases.

In Kape Sulu v The State (2003) N2456, Manuhu AJ heard an application to quash an indictment presented under Section 229A. The alleged offence occurred on 3 November 2002, five months before the start of the new law. His Honour dismissed the application. As the old Section 216 is no longer in existence the charge must proceed under the new law. However the penalty that would apply is restricted to what was available under the old law, five years imprisonment.

In The State v Dibol Petrus Kopal (2004) N2778 a man was charged with rape under Section 347 (definition of rape) of the Criminal Code. The alleged offence occurred on 26 January 2000, more than three years before the start of the new law. Section 347 was repealed and replaced by Act No 27 of 2002. The crime of rape was made gender-neutral. The maximum penalty was divided into two categories: 15 years for ‘non-aggravated’ rape and life imprisonment for rape committed in circumstances of aggravation. Complementary provisions defining consent or its absence (Section 347A) and circumstances of aggravation (Section 349A) were added. An issue arose about whether, in light of Section 63 of the Interpretation Act, the accused should be charged under the repealed Section 347 or the new Section 347. Lay J applied the principle developed by the Supreme Court in Baiza Tadu Avona v The State [1986] PNGLR 148, Kidu CJ, Amet J, Cory J, Los J, Wilson J. Looking at the substance, rather than the form, of the new law, although Act No 27 of 2002 speaks of repealing and replacing Section 347, the effect was to amend the old Section 347. Therefore Section 63 of the Interpretation Act has no application. His Honour held that the accused was properly charged under the new Section 347 and convicted him. As to penalty, his Honour applied Section 11 of the Criminal Code. The maximum penalty was the lesser of the penalties provided under the old and the new Section 347. The old Section 347 imposed a maximum penalty of life imprisonment. The new Section 347 also provides for life imprisonment, but only if it is aggravated rape. The indictment did not charge any circumstances of aggravation. Therefore under Section 528(2) of the Criminal Code, those circumstances could not be relied on.

Section 528(2) states:

Subject to Subsections (3) and (4), [which deal with previous convictions] if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.

His Honour held that the maximum penalty to which the offender was subject was 15 years and sentenced him to 14 years imprisonment. 

In The State v Jason Rihata (2005) CR No 171 of 2005, unreported, a man pleaded guilty to sexual assault contrary to the new Section 349 (sexual assault) of the Criminal Code. The offence was committed on 18 August 2001, one year and eight months before the start of the new law. The new Section 349 replaced the old Section 349 (indecent assaults on females). The maximum penalty under the old law was two years imprisonment. Under the new law it is five years for an un-aggravated offence; ten years if committed in circumstances of aggravation. Lay J considered that the offender was properly charged under the new law and sentenced him to six months imprisonment. 

Principles

I agree with the reasoning of Manuhu AJ and Lay J in the above cases. I suggest that the following principles apply whenever an alleged sexual offence occurred prior to 12 April 2003 and a decision is to be made on whether to charge the accused under the old law or the new law brought into force by Act No 27 of 2002:

•	First, check whether the act constituting the offence which the accused has been charged with constituted an offence defined and prescribed by a written law at the time that it took place. If yes, the requirements of Sections 37(2) and the first limb of Section 37(7) of the Constitution and Section 11(1) of the Criminal Code will be satisfied. If no, those requirements will be breached and the prosecution should not be pursued.

•	Secondly, ask whether the new law has, in substance rather than form, repealed or amended the old law. If it is a repeal, Section 63 of the Interpretation Act applies and the charge should be brought under the old law. If it is an amendment, Section 63 does not apply and the charge should be brought under the new law.

•	Thirdly, irrespective of whether the charge is brought under the old law or the new law, the second limb of Section 37(7) of the Constitution and Section 11(2) of the Criminal Code require that the maximum penalty be the lesser of what was in the old law and what is in the new law. 

Present case

Applying those principles to the present case, I find that:

•	The act constituting the offence which the accused is charged with (engaging in an act of sexual penetration with a child under the age of 16 years, in an existing relationship of trust, contrary to Section 229A(1)) would have constituted an offence (under the old Section 213 or the old Section 216) at the time that it took place, in March 2002. Therefore the requirements of Sections 37(2), the first limb of Section 37(7) of the Constitution and Section 11(1) of the Criminal Code are satisfied.

•	Though, in form, the old Sections 213 and 216 have been repealed, they have actually been merged into the new Section 229A. The new law has, in substance, amended the old law. Therefore Section 63 of the Interpretation Act does not apply and the charge has properly been brought under the new law. 

I will address the maximum penalty issue later. 

FACTS 

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On the day of the incident the accused had been drinking alcohol heavily at Hanahan. At about 12 noon he arrived at his house where he found his stepdaughter and stepson. The children’s mother, his wife, had gone to the garden. The accused got his stepdaughter into a room in their house, where he sexually penetrated her. She was about 11 years old at the time. The law forbids males to sexually penetrate girls under the age of 16 years. There was a relationship of trust that was breached, as his stepdaughter regarded him as her father. The accused knew that his stepdaughter was under the age of 16 years.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I say sorry to the court for what I did. This is my first time in court. I had been drinking for two days. I was not in a proper state of mind when I did this to my stepdaughter. I ask the court to feel sorry for me. I have been in custody since I was arrested and my family does not have a man to support them. I have a child in high school, others are in primary school. I think about their future all the time. I ask the court to give me probation. I did this thing when I was drunk. If I had been normal, I would not have done it. My stepdaughter and my wife sometimes visit me in the cell. I have not had time to reconcile at home. If the court gives me probation I will go back home and reconcile with the family. I promise that I will never do such a thing as this again. I have been in custody 2 years and 11 months.

AGE OF THE VICTIM

When I checked the depositions I discovered that the victim’s date of birth was 21 July 1991. So on the day of the offence, 12 April 2002, she was aged 10 years and nine months. Though the prosecutor’s summary alleged that she was aged 11, I have determined the sentence on the basis that she was 10 years old. 

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Siminji conceded that the prisoner was guilty of a very serious offence, especially in view of the age of the victim and the relationship of trust that was breached, and that the maximum penalty was life imprisonment. However he pointed to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. The case therefore does not call for the maximum penalty. 

Personal particulars

The prisoner is now aged 42. He had five children with his first wife and two stepchildren, including the victim, with his second wife. He comes from Hanahan. He attends the Catholic Church and was educated to Grade 10. He was employed in Arawa until the Bougainville crisis erupted.

Precedent

Mr Siminji submitted that, to give effect to the policy in the second limb of Section 37(7) of the Constitution and in Section 11(2) of the Criminal Code, the court should give the benefit of doubt to the prisoner on sentence. He was convicted under a law that did not exist at the time he committed the offence. Even if the court concludes that the maximum penalty in this case is life imprisonment, it should impose a sentence according to the case law and sentencing guidelines that existed when the offence was committed. The leading case on the old Section 213 is The State v Thomas Pipon [1988-89] PNGLR 179, National Court, Brunton AJ. An 18-year old offender pleaded guilty to defilement of a girl under the age of 12, contrary to the equivalent of Section 229A: Section 213 of the Criminal Code. The girl was aged only 18-months. The victim was infected with a sexually transmitted disease. The offender had no prior convictions. He had become a born-again Christian. The offender was sentenced to seven years. That was a particularly bad case, worse than the present one. Brunton AJ’s summary of sentences in sixteen cases decided under Section 213 showed that the average sentence was less than three years. Applying the sentencing guidelines in those cases, the sentence in this case should be less than five years, Mr Siminji argued.

SUBMISSIONS BY THE STATE

Mr Rangan countered by submitting that the maximum penalty under the new law is the same as under the old law. As the prisoner was charged, correctly, under the new law, he should be sentenced under the new law, in a way that reflects the policy underlying the new law. This is a very, very serious case. There are strong aggravating factors: the large age gap between the offender and the victim; the involvement of alcohol; the breach of trust; the child suffered injury; she may endure a lifetime of psychological suffering. A sentence above 15 years is called for, Mr Rangan argued.

RELEVANT LAW

Section 229A

Section 229A makes the maximum penalty subject to two variables. It states:

(1)	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2)	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3)	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

The penalty regime

Under the new law, the penalty regime is as follows:

•	if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but 

•	if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

Relationship of trust, authority or dependency

This term is defined by Section 6A of the Criminal Code, which states:

(1)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2)	A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b)	the accused has care or custody of the complainant; or
(c)	the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or
(d)	the accused is a school teacher and the complainant is his pupil; or
(e)	the accused is a religious instructor to the complainant; or
(f)	the accused is a counsellor or youth worker acting in his professional capacity; or
(g)	the accused is a health care professional and the complainant is his patient; or
(h)	the accused is a police or prison officer and the complainant is in his care and control.

Present case

The child sexually penetrated by the prisoner was under the age of 12 years. This was an aggravating circumstance, in that it could have increased the maximum penalty from 25 years to life imprisonment. However, it was not charged in the indictment. Therefore under Section 528(2) of the Criminal Code it cannot increase the maximum penalty in that way. (See Kopal’s case, cited above.) 

There was an existing relationship of trust, authority or dependency between the offender and the child, under Section 6A(2)(a) of the Criminal Code as the accused was a step-parent of the victim (referred to as the complainant in that provision). This aggravating circumstance was charged in the indictment. Therefore under the new law the prisoner is liable to life imprisonment, under Section 229A(3).

I am now required by the second limb of Section 37(7) of the Constitution and Section 11(2) of the Criminal Code to compare that maximum penalty to the maximum penalty under the old law. If there is a difference the lesser of the two will apply.

Under the old law the maximum penalty depended on whether a person was convicted under Section 213 (life imprisonment) or Section 216 (five years). As the girl in the present case was less than 12 years of age, the prisoner could have been charged and convicted under Section 213. Therefore, the old law authorised a maximum penalty of life imprisonment for this act. I have considered whether the fact that the aggravating circumstance of the child being under the age of 12 years was not charged in the indictment, has any bearing on the task of comparing maximum penalties. Perhaps it could be argued that, as the prisoner was not charged with engaging in an act of sexual penetration with a child under the age of 12 years, that circumstance of aggravation cannot, by virtue of Section 528(2) of the Criminal Code, be relied on for the purposes of determining penalty. However, it was not necessary to charge that circumstance of aggravation in the indictment, as another aggravating circumstance was included. The State does not rely on that aggravating circumstance for the purpose of determining the sentence under the indictment. I conclude that the old law authorised a maximum penalty of life imprisonment for doing the act for which the prisoner is now being punished. 

There is no difference between the old law and the new law. Therefore I accept the State’s submission, conceded to by the defence, that the maximum penalty in this case is life imprisonment. 

Discretion 

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

•	a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

•	a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

•	the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

•	the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

•	the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

SIGNIFICANCE AND PURPOSE OF NEW LAW

As I noted in a recent Wewak case, The State v Pennias Mokei (No 2) (2004) N2635, Section 229A of the Criminal Code is part of a set of new provisions introduced by the Parliament in 2002 aimed at protecting children against sexual exploitation and abuse. The People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea and the People depend on them and their upbringing. 

Kandakasi J has remarked on the same thing in a number of recent cases, the details of which are given below. Concern about the vulnerability of children is growing, not only in Papua New Guinea but also throughout the world. It is an accepted medical and scientific fact that whatever happens in a person’s earlier life remains long in their memories even though there might be no obvious physical harm. This is a serious factor in Papua New Guinea because, unlike countries like Australia, there are no readily available specialised medical services to help victims recover from the effects of such crimes.

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process: 

•	step 1: what is the appropriate head sentence, in terms of years? 

•	step 2: should all or part of the sentence be suspended? 

•	step 3: if all or part of the sentence is suspended, what conditions should be imposed? 

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE? 

Approach

In setting an appropriate head sentence I will take this approach:

•	first, I will identify an appropriate starting point or reference point;

•	secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and

•	thirdly, I will apply those considerations to the facts of the present case.

Starting point

What does it mean?

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being dealt with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

Not clear

In the present case the starting point is not immediately clear, for two reasons. First the court has to consider the effect, if any, of the offence being committed prior to the commencement of the provision under which the offender was charged. Mr Siminji’s submission on that issue calls for careful consideration. Secondly, if his submission is rejected and the sentencing practices under the new Section 229A of the Criminal Code are applied, it must be borne in mind that it is still a relatively new law. There are only a handful of cases in which the National Court has given decisions on the applicable penalty. The Supreme Court has not yet been called on to deal with the matter.

Effect of offence predating new law 

I have closely considered Mr Siminji’s submission on the sentencing patterns applying to the old Section 213. It is clear that for some years the National Court was imposing sentences, often less than three years, which were far below the maximum and which, by today’s standards (see below) were lenient. The most recent reported case on Section 213 is The State v Kambi Sipris (No 2) (2003) N2453, National Court, Jalina J. The offender was aged 18, the victim was aged 6 and was a member of the offender’s extended family. The offender pleaded not guilty. He was convicted and sentenced to seven years imprisonment, all of which was suspended subject to certain conditions, including the payment of K5,000.00 cash compensation to the victim’s family.

Mr Siminji’s submission, which implores the court to adopt the sentencing principles and practices relating to the old Section 213, turns on the second limb of Section 37(7) of the Constitution and to Section 11(2) of the Criminal Code. I will restate those laws, emphasising the apposite elements.

The second limb of Section 37(7) of the Constitution states:

… no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed. [emphasis added]

Section 11(2) of the Criminal Code states:

… the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law. [emphasis added]

I need to pose a question. If it is accepted that sentencing guidelines under the new law will lead to a heavier sentence than those under the old law, will the court offend against either of the above laws, if it applies the new sentencing guidelines? No. Under the old law the maximum penalty that might have been imposed was life imprisonment. That is what was authorised. Provided the actual penalty imposed is life imprisonment or a term of years less than life, it will not be more severe in degree or description than life imprisonment; and the offender will not be punished to any greater extent than that. Neither Section 37(7) of the Constitution nor Section 11(2) of the Criminal Code will be breached. 

Therefore there is no express prohibition that prevents the court applying the sentencing guidelines under the new law. Nevertheless should the court as a matter of discretion err on the side of the prisoner, give him the benefit of the doubt on the issue of sentencing, and apply the old guidelines? No, not in this case. I am persuaded by Mr Rangan’s submission that the court needs to give effect to the policy behind the new law, which is to treat sexual offences against children more seriously and severely. It accords with common sense to sentence a person according to contemporary principles, guidelines and practices rather than harking back to how he might have been dealt with if he had been brought to trial when the offence was committed. The court’s decisions on sentencing must so far as possible keep pace with the times. Another thing I have considered is the close proximity in time between when the offence was committed (April 2002) and when the new law was passed by the Parliament (March 2002). The law did not commence operation until April 2003, but it was actually made by the Parliament in the month preceding the commission of the offence. It is possible to imagine a case where a person is, say, in 2005, convicted under the new law of an offence that happened, say, in 1988. There would perhaps be an argument that in those circumstances the old sentencing guidelines should be applied. The present case is, however, completely different.

For all those reasons, I reject Mr Siminji’s submission and will apply the current sentencing practices and guidelines to arrive at a starting point.

Sentencing practices under new law

I summarise the National Court decisions in the table below.

TABLE 1 – NATIONAL COURT SENTENCES ON SECTION 229A

No	Case	Details	Sentence	
1	The State v 
Peter Lare, (2004) N2557,
Kandakasi J,
Goroka	Offender aged 40 charged with one count of sexual penetration – victim, a girl, aged 12 – offender was the girl’s adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to victim – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years	
2	The State v Pennias Mokei (No 2), 
(2004) N2635,
Cannings J, 
Wewak	Offender aged 33 charged with one count of sexual penetration – victim, a girl, aged 13 – offender was the girl’s uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with victim or family since commission of offence.	15 years	
3	The State v Eddie Trosty, (2004) N2681, Kandakasi J, 
Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – victim, a girl, aged 15 – victim was the offender’s girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	6 years	
4	The State v Kemai Lumou, (2004) N2684,
Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – victim, a girl, aged 14 – offender was the girl’s uncle – no consent – aggravated physical violence: used bushknife to threaten victim and sexual penetration was forceful – no evidence of physical injuries or infection of victim with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that victim was his girlfriend, aged 17 and sex was consensual – pleaded not guilty: victim forced to relive crime – no evidence of offender saying sorry to victim and her relatives – no compensation attempted – first offender. 	17 years	

In light of the above cases the starting point I will use for the present case is 15 years. 

Relevant considerations

In Pennias Mokei (No 2) I set out the factors I considered should be taken into account in determining sentence in cases such as this. I have since had the benefit of considering the three judgments of Kandakasi J referred to above. So I will restate the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point. The relevant considerations are:

1	Is there only a small age difference between the offender and the victim?

2	Is the victim not far under the age of 16 years?

3	Was there consent?

4	Was there only one offender?

5	Did the offender not use a threatening weapon and not use aggravated physical violence?

6	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? 

7	Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8	Was it an isolated incident?

9	Did the offender give himself up after the incident?

10	Did the offender cooperate with the police in their investigations?

11	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the victim or personally or publicly apologising for what he did?

12	Has the offender not caused further trouble to the victim or the victim’s family since the incident?

13	Has the offender pleaded guilty?

14	Has the offender genuinely expressed remorse?

15	Is this his first offence?

16	Can the offender be regarded as a youthful offender?

17	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. 

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence. The presence or absence of consent is very important. Absence of consent is not an element of the offence. So, as in Eddie Trosty’s case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bushknife, as in Kemai Lumou’s case) is used or if there is aggravated physical violence or physical injury caused to the victim. It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare’s case where the offender was labelled a sexual predator.

Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself. 

Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1	No there is a large age difference of 29 years. The offender was aged 39 at the time of the incident and the victim was 10.

2	No the victim was well under the age of 16 years. She was only 10 years old, a little girl. Generally speaking the younger the victim the more serious is the offence and the heavier the penalty.

3	No the victim did not consent.

4	Yes the offender acted alone, not in a group.

5	Yes the offender did not use a threatening weapon such as a bushknife and did not use aggravated physical violence.

6	No the offender caused physical injury. The victim was examined at Hanahan Health Centre on 12 April 2002. A vaginal examination revealed multiple bruises with blood clots from the vaginal orifice and a small tear around the perineum. She was hospitalised overnight. Two days later, she was examined at Buka Hospital. She was still in pain and exhibiting signs of psychological trauma.

7	No there was an existing relationship of trust, dependency and authority. The offender was the girl’s stepfather. He was, for all intents and purposes, her father. The offender’s actions undermined one of the most precious relationships known to humankind: the bond between a father and his daughter. 

8	Yes it was an isolated incident.

9	No the offender did not give himself up after the incident.

10	Yes the offender cooperated with the police.

11	No the offender has not done anything tangible towards repairing his wrong, eg offering compensation to the victim or her family or engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did. He says the reason for this is that he has been in custody since soon after the incident. He gives the impression that his wife and the victim are prepared to reconcile. That may be the case, I do not know. It might be in the interests of all concerned, and particularly the young girl, for a custom-based reconciliation to take place. However, there is no evidence before the court. I am not prepared in such a shocking case to accept that the victim and her mother are prepared to try reconciling, and take it into account as a mitigating factor, on the basis of what has been said by the offender in his allocutus.

12	Yes he has not caused further trouble. He has been in custody.

13	Yes he has pleaded guilty.

14	Yes he has expressed remorse. It appears genuine. 

15	Yes this is his first offence. 

16	No he was not a youthful offender. 

17	No there is no other aspect of the circumstances of the incident or the offender that is relevant. The fact that he was drunk is of no consequence.

Conclusion

Taking all the above considerations into account and comparing this case with the four cases referred to above, particularly Mokei (No 2), the head sentence in this case should be more than 15 years. I regard consideration Nos 1, 2, 3, 6 and 7 as serious aggravating factors. However there are strong mitigating factors in Nos 10, 13 and 14. The other factors are not significantly aggravating (9, 11, 16) or not significantly mitigating (4, 5, 8, 12, and 15) or neutral (No 17). 

The prisoner has gained considerable benefit by pleading guilty. If this matter had proceeded to trial and the young girl had been required to relive this incident, the sentence would have been much more severe. This is one of the worst cases imaginable. The prisoner did a despicable, sickening thing to his daughter. He will carry the shame of this for the rest of his life and may have condemned her to long term or permanent psychological damage. 

I accordingly fix a head sentence of 17 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED? 

This is one of a number of criminal cases in the current Buka circuit where it would have been of assistance to the court to have a pre-sentence report prepared, to ensure that the court has all relevant information to hand to make a just and fair decision on the sentence to be imposed on persons who have been convicted of offences.

Normally such reports are prepared by the Community Corrections and Rehabilitation Service. However, as there is no office of that service on Bougainville, I requested that the Provincial Welfare Officer prepare a report.

No report has been forthcoming for this case, apparently due to resource and time constraints. This is regrettable but understandable. The prisoner has been convicted of a very serious offence. In the absence of any written or oral report, and there being no evidence that the people in the community where this offence occurred are willing to forgive or reconcile with or take concrete steps to rehabilitate the offender, I cannot consider suspending any part of the sentence. (See Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J.)

Step 3 of the sentencing process, referred to above, will not be considered.

SENTENCE

The Court makes the following order:

1	John Ritsi Kutetoa, having been convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years, in an existing relationship of trust, is sentenced to 17 years imprisonment in hard labour.

2	For the avoidance of doubt, there shall be deducted from the term of imprisonment any period in custody that the prisoner has already spent in relation to this offence.

Sentenced accordingly. 
______________________________________________________

Lawyer for the State		:	Public Prosecutor
Lawyer for the accused	: 	Public Solicitor