N2807

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1064 0F 2004

THE STATE

V

GEORGE TAUNDE

BUKA: CANNINGS J
10, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – offender aged 33 years, child aged 13 – offender married to victim’s father’s sister – uncle/niece relationship – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – 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 – limited educational background – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – no pre-sentence report available – not appropriate to suspend whole or part of sentence – sentence of 10 years. 

Cases cited:

Public Prosecutor v Don Hale (1998) SC564
The State v Eddie Trosty (2004) N2681
The State v Kemai Lumou (2004) N2684
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Lare (2004) N2557
The State v Sottie Abusa [1988-89] PNGLR 170

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 was 13 years old and was the niece of the man.

BACKGROUND 

Incident

The incident giving rise to the charge took place at Hahon village, Kunua, Bougainville, on 3 March 2004. It was alleged that the accused engaged in an act of sexual penetration with a girl under the age of 16 years, who is referred to as the complainant.

Indictment

On 10 March 2005 he was brought before the National Court and faced the following indictment:

George Taunde of Hahon village, Kunua, Bougainville, stands charged that he … on the 3rd day of March 2004 engaged in an act of sexual penetration with Evodia Philip [the complainant], a child under the age of 16 years and that at the time of the act of sexual penetration there was an existing relationship of trust between [the complainant] and George Taunde.

The indictment was presented under Section 229A of the Criminal Code.

FACTS 

Allegations

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

At about midday on 3 March 2004 the accused and the complainant, a girl aged 13, were at their village at Kunua. The complainant went to a spot away from her house, near a creek, to go to the toilet. The accused followed her. Just after she finished relieving herself, the accused set upon her and had sexual intercourse with her. The accused knew that she was under the age of 16 years. There was an existing relationship of trust between him and the child. He is married to her father’s sister. He is her uncle. 

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 just want to say that it is true that I did this thing. They took me home to sort it out. They got the home guard and they hit me and then told me that was the end of it. But the next day they got the police. I am sorry for what happened. I am sorry for my family. I am sorry I ended up here. This is my first time to be before the court. 

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Siminji referred 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. There was no aggravated physical assault on the victim.

Personal particulars

The prisoner is married with four children. His wife and children are at home. He is now aged 34. He attends the Catholic Church. He has no formal education or employment. He is a subsistence farmer.

Precedent

Mr Siminji submitted that the court should apply the sentencing guidelines in The State v Sottie Abusa [1988-89] PNGLR 170, National Court, Brunton AJ. These are:

•	where the offender and the victim are of similar age or where the victim consents: up to 20 months imprisonment;

•	where the offender is a mature man and there are no circumstances of aggravation: 20 to 40 months;

•	where there are aggravating circumstances, eg a relationship of trust and dependency: 40 months to five years.

Mr Siminji submitted that the present case falls into the third category but because of the absence of aggravated violence a suspended sentence would be appropriate. 

SUBMISSIONS BY THE STATE

Mr Rangan submitted that Sottie Abusa was of little use as a precedent. It was decided 17 years ago. It dealt with an offence that carried only five years as its maximum penalty. The court must pass a heavy sentence in view of the fact that the maximum penalty is life imprisonment. The penalty should reflect the intention behind the new law. 

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

It 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

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the key issue is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them. 

Mr Rangan submitted that the prisoner was regarded as an uncle of the complainant. I accept the submission that there was an existing relationship of trust under Section 6A(2)(c).

Therefore the prisoner is liable to imprisonment for life, under Section 229A(3).

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 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

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 deal with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case the starting point is not immediately clear. Section 229A of the Criminal Code is still a 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. I accept Mr Rangan’s submission that the guidelines in Sottie Abusa’s case are no longer applicable. The criteria identified in that case are still relevant. But the tariffs suggested are outdated and, as Mr Rangan suggested, the court must arrive at sentences that reflect the Parliament’s intention in making substantial amendments to the Criminal Code.

Previous cases

I will summarise recent National Court decisions in the table below and then identify a starting point for this case.

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. That was the sentence in Pennias Mokei (No 2), which has some similarities with the present case in that the offender was regarded as an uncle by the complainant and complainant was aged 13 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 to the family of the victim, engaging in a peace and reconciliation ceremony, 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 or are his personal circumstances such that they should mitigate the sentence?

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 13 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 20 years. The offender was aged 33 at the time of the incident and the victim was 13.

2	No the victim was still well under the age of 16 years.

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	Yes the offender did not cause physical injury and did not pass on a sexually transmitted disease. 

7	No there was an existing relationship of trust. 

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 mentioned in his allocutus that he was beaten up by the home guard and he had the impression that the problem had been sorted out in the village. There is, however, no evidence of these things.

12	Yes he has not caused further trouble.

13	Yes he has pleaded guilty.

14	The offender has expressed remorse but not in an entirely convincing way.

15	Yes this is his first offence.

16	No he cannot be regarded as a youthful offender. 

17	Yes the other aspect of his personal circumstances that is relevant is that he comes from a limited educational background. 

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 less than 15 years. I regard consideration Nos 1, 2, 3 and 7 as serious aggravating factors. However, there are strong mitigating factors in Nos 10, 12 and 13. The other factors are either not significantly aggravating (9, 11 and 16) or not significantly mitigating (4, 5, 6, 8, 15 and 17). 

I accordingly fix a head sentence of 10 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 also not be considered.

SENTENCE

The Court makes the following order:

1	George Taunde, having been convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years, is sentenced to 10 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.
______________________________________________________

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