N2799

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1197 0F 2004

THE STATE

V

BIASON BENSON SAMSON

KIMBE: CANNINGS J
18, 25 FEBRUARY 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 17 years, child aged 13 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – no existing relationship of trust, authority or dependency – isolated incident – 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 – youthful offender – limited educational background – 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 5 years – 2 years must be served – balance of 3 years may be suspended on application to the National Court.

Cases cited:
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

Counsel:
F Popeu for the State
O Oiveka 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.

BACKGROUND 

Incident

The incident giving rise to the charge took place at Mamota, West New Britain, on the afternoon of 16 July 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 18 February 2005 he was brought before the National Court and faced the following indictment:

Biason Benson Samson of Lambe, Vitu, Talasea in West New Britain Province stands charged that he on the 16th day of July 2004 at Mamota in Papua New Guinea engaged in an act of sexual penetration with one Kesia Gaga a child under the age of 16 years.

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:

On 16 July 2004, around 3.00 pm, the accused was at his parent’s house, at block No 1025, with the complainant. The complainant resides on the neighbouring block, No 1024. The accused sent the complainant to her house to bring him a spade to dig for some wildfowl eggs. He told her to bring the spade to the boundary of the blocks. The complainant did as she was told. When she brought the spade, the accused pulled her into the bush and forced her to the ground. He then removed her shorts and proceeded to have sexual intercourse with her, without her consent. He told her not to report the matter. However, she told her mother who reported the matter to the police. 

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:

It is true that I committed this offence. This is the first time that I have done this kind of thing. I have a block to look after. I live there with my younger brothers and sisters. My father is deceased. My mother has remarried and gone to live elsewhere with her new husband. I ask the court for mercy. If the court gives me a non-custodial sentence I will be able to compensate the victim for what I have done.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka 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. He committed the offence at a tender age. He was only 17. He cooperated with the police. He is a first offender.

He attends the Catholic Church. He is educated to grade 4. He has lived on an oil palm settlement all his life. He lives at the block with his uncle. He is willing to pay compensation but the complainant’s family refuse to accept any.

SUBMISSIONS BY THE STATE

Mr Popeu submitted that it was important to consider the prevalence of this offence. It was a serious offence and the court’s decision should aim to deter similar behaviour by others.

AGE 

During the course of the proceedings an issue arose as to the prisoner’s age. The committal documents had him aged 17. He was committed on 17 September 2004. I asked him in court and he said he was 17, still. The pre-sentence report has him aged 19. It is an important issue in this case and I need to make a finding. I give the benefit of the doubt to the prisoner. He looks young. I find that he was 17 when he committed the offence (7 months ago) and that he is still only 17.

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. 

I asked Mr Popeu to address that issue. He said it was not part of the State’s case that the prisoner and the child were related or that there was in any way an existing relationship of trust, authority or dependency. I accept that Section 229A(3) does not apply.

Therefore the prisoner is liable to imprisonment for a term not exceeding 25 years, under Section 229A(1).

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 is no readily available specialised medical services to help the 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.

Previous cases

I will summarise the 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. 

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 deceased, 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 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	Yes there is a relatively small age difference of four years. The offender was aged 17 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	Yes there was no existing relationship of trust, dependency or authority.

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 victim or her family or engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did. 

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	Yes at age 17 he can be regarded as a youthful offender. This is a strong mitigating factor. He is approaching the age at which this would not be a mitigating factor at all. But when he committed the offence he was young and at an age when many males are actually or wishing to be sexually active and when they are prone to act impulsively, immaturely or stupidly. That is a fact of life. This is why it was important for the court to make a finding of fact as to his age. 

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 considerably less than 15 years. I regard consideration No 3 as a serious aggravating factor: there was no consent. However there are strong mitigating factors in Nos 1, 10, 12, 13, 14, 15 and 16. The other factors are either not significantly aggravating (2, 9 and 11) or not significantly mitigating (4, 5, 6, 7, 8, and 17). However the mitigating factors significantly outnumber the aggravating factors and their combined effect is to reduce the sentence that would otherwise have applied. 

I accordingly fix a head sentence of 5 years imprisonment.

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

Request

This is a case where it was appropriate to consider suspending part of the sentence, given the age of the prisoner and the circumstances in which the offence was committed. To help me in making a decision on this issue I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the prisoner. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service. 

Report 

According to the report Biason Benson Samson resides at block No 1035, Mamota, in the Bialla District of West New Britain. He has lived there all his life. He is the oldest in a family of eight children. He is single. He was educated to grade three. His father died in 1998 and his mother later left the family home to remarry. He takes full responsibility for looking after his brothers and sisters. He is self-supporting through the money he earns from the sale of oil palm and the earnings of a small trade store. He has the financial resources to pay compensation of several thousand kina. His health is excellent. He is involved in community sports. Once his case is over he plans to return home and avoid further trouble. 

The report was unable to make an assessment of the community feeling about the offender. Nevertheless it recommended that he is a suitable candidate for probation supervision for an extensive period. The assessment given of the prisoner is encouraging. It gives the impression that he is a young man of his own means, occupying a responsible position as breadwinner to his seven brothers and sisters. 

Assessment of report

However, even accepting the report at face value, I do not consider it to be sufficiently detailed to warrant, at this stage, suspending the sentence. The problem is that no firm conditions are recommended and there is no guarantee that if the prisoner were released into the community he would have the support of the community.

Qualified sentence

I will nonetheless qualify the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoner and the victim of his crime and her relatives, carried out in accordance with local custom, and would be viewed favourably.

The prisoner will be at liberty to, at any time, make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment. 

Step 3

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

SENTENCE

The Court makes the following order:

1	Biason Benson Samson, having been convicted of the crime of engaging in an act of sexual penetration of a child under the age of 16 years, is sentenced to 5 years imprisonment in hard labour, 2 years of which must be served and the balance of 3 years of which may be suspended by order of the National Court if and when an application for suspension is granted.

2	For the avoidance of doubt:

(a)	suspension of the above sentence will only come into effect if and when ordered by the National Court; and 

(b)	there shall be deducted from the term of imprisonment the 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