State v Pu-uh [2005] PGNC 172; N2949 (24 November 2005)

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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 ─ first offender ─ defendant 34-38 years of age ─ victim 12 years of age ─ penetration with finger ─ torn hymen ─ victim virgin ─ existing relationship of trust ─ victim defendant’s niece ─ no consent ─ apology not genuine ─ isolated incident ─ co-operation with police ─ offer but no actual compensation ─ pre-sentence report ─ sentence 4 years IHL.

Cases Cited:
The State v Peter Lare (2004) N2557
The State v Pennias Mokei (No 2), (2004) N2635,
The State v Eddie Trosty, (2004) N2681;
The State v Kemai Lumou, (2004) N2684;
The State v Biason Benson Samson (2005) N2799;
CR 236/2005 The State V Mathias Alois, (21/04/05);
State v Thomas Angup (2005) N2830;
State v Binga Thomas (2005) N2828;
The State v Titus Soumi (2004) N2809;
State v Tobby Tani N2063;
R v Gobai Vagi [1973] PNGLR 30;
Public Prosecutor v Tom Ake [1978] PNGLR 469;
Law v Deed [1970] SASR 377;
Koniel Alar and Hosea Biu v State [1979] PNGLR 300;
Imiyo Wamelav The State [1982] PNGLR 269.

LAY J: On a plea of guilty the defendant, aged 38 years, has been convicted of one count of sexual penetration in breach of trust contrary to the provisions of s229A(1) and (3).

The facts put to the defendant on his arraignment were that on 2nd July 2005 at night at Katen Tingau village the defendant met his victim on the road. The accused took the victim to a dark spot and inserted his finger into the victim’s vagina. The victim was just beyond 12 years of age at the time. The victim was taken to the hospital and the medical report describes a torn hymen. The defendant is an uncle to the victim.

On his allocutus the defendant said: "I want to apologise for what I have done and ask for mercy. I want the court to allow me to go back and do something such as compensation seeing we are relatives. I am married, I have 4 children. 2 are in school and 2 in the village. I am working with TSL Construction."

The Defendants lawyer submitted that the defendant is 34 years old, ( in the record of interview the defendant says he is 38 years of age) his first child is aged 16 years in grade 7, 2nd child in elementary school. His mother is alive his father deceased. He is 4th in a family of 8. He attends the Evangelical Lutheran Church. He was educated to grade 6 then as a mechanic at vocational school. He was employed by Department of Works as a mechanic from 1983-1991. He had employment 1998-2001 as a security guard and from 2004 as a mechanic with TSC Construction.

The guilty plea, its consistency with the general admissions made in the defendant’s record of interview, his apology to the court, his request to be allowed to make compensation, he is a first offender, an industrious man who left school at grade 6, became a mechanic and has had employment most of the time since 1983.

It was further submitted that I should note that there was no detail of the relationship of trust provided by the State that the offence took place close to a residence and I should accept, from allegations in the record of interview that the victim instigated sexual touching, that there was some element of consent.

I was urged to disregard the allegations of force in the depositions. I should draw the conclusion that the blood on the medical officers examination glove after vaginal examination was from the tearing of the victim’s hymen.

I was referred to State v Titus Soumi N2809 (22/09/05) (Cannings J); The State v Pete Lare N2557 (Kandakasi J); State v Pennias Mokei (No 2) N2635 (Cannings J) and State v Eddie Trosty (10/9/04) (Kandakasi J).

At the request of counsel for the defendant a pre sentence report was requested.

It is now over 2 years since Parliament amended the Criminal Code to provide a large number of new offences to protect children, of which s229A is one. A person who sexual penetrates a child under 16 years of age commits a crime and if there was an existing relationship of trust between defendant and victim the maximum penalty for the crime is life imprisonment. Thus it is in the same category of crime as aggravated rape or murder. As a number of judges have observed, this is an indication that the people of Papua New Guinea want the Court to treat the violation of children seriously.

"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is-

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

It is clear therefore that the introduction of a finger into the vagina of a child, is, within the meaning of s6(b) and the Code "sexual penetration" unless for medical or hygiene purposes.

In The State v Biason Benson Samson (2005) N2799 (Cannings J) some of the sentencing decisions under s229A were digested as follows:

Case	Details	Sentence
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 –Goroka pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years
The State v Pennias Mokei (No 2), (2004) N2635, – Cannings J,	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 Wewak family since commission of offence.	15 years
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
The State v Kemai Lumou, (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual 17 years penetration – victim, a girl, aged 14 – offender was the girl’s uncle – no consent – aggravated physical violence: used bush knife 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

I add to those cases those decided since and my own numbered and unnumbered decisions:

The State v Biason Benson Samson (2005) N2799 (Cannings J)

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.

CR 236/2005 The State v Mathias Alois, (21/04/05), Lay J, Kokopo

– guilty plea – first offence – remorse not genuine – no consent – girl aged 12 years –defendant 21 years─ no circumstances of aggravation charged –2 acts of intercourse on one occasion ─ victim lying on sick bed outside house when taken into bush ─ no compensation (no opportunity to arrange)─threats not to tell parents.

sentence ─term of 8 years IHL imposed.

State v Thomas Angup (2005) N2830, Lay J, Kokopo

sexual penetration of child under 12 years—sexual penetration of a child under 16 years—Guilty plea—Offender with no prior convictions—Substantial age difference between prisoner and victim—prisoner aged 34—Offences committed in charged breach of trust situation—No expression of remorse—pattern of abuse over 6 years—victim defendants stepdaughter ─ age difference of 19 years between victim and defendant ─ victim became pregnant and had child before age 16 years ─ A punitive and deterrent sentence called for.

Sentence of 20 years imprisonment imposed

State v Binga Thomas (2005) N2828, Kokopo, Lay J

Guilty plea ─ first offender– defendants version of events preferred – prisoner aged 50 – victim aged 15 and some months – offence charged part of series of offences against same victim – 44 separate occasions admitted in record of interview ─ defendant said paid K530 fo sex ─ breach of trust – prisoner treated like brother of victims father – plea of guilty.

Sentence─12 years IHL.

The State v Titus Soumi (2004) N2809, Buka, Cannings J

sentence on plea of guilty – offender aged 30 years, child aged 14-15 years – offender married to complainant’s older sister – consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – existing relationship of trust, – two separate incidents – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – expression of remorse – first offender.

Sentence of two years – one year must be served – balance of one year may be suspended on application to the National Court.

I accept the matters that defence counsel has put forward in regard to mitigation with the following reservations. First in relation to the record of interview it was submitted that I should note, and presumably accept, the defendant’s assertion that the victim initiated the sexual contact.

It has been the practice of the Court to take the version of events most favourable to the accused, in the absence of evidence from the State to the contrary: State v Tobby Tani N2063 (Injia J); R v Gobai Vagi [1973] PNGLR 30 (Raine J) provided it is not utterly unreal. But the "most favourable version" doctrine cannot be applied if the prisoner on his plea and on his allocutus makes no challenge to any of the facts sworn to in the evidence: Public Prosecutor v Tom Ake [1978] PNGLR (Prentice CJ, Pritchard and Greville-Smith JJ) 469. For the purposes of applying this principle the allocutus includes statements made by defence counsel from the bar table. If the defendant’s version of events is to be rejected the defendant should first have the opportunity of giving evidence on oath to support this version of events: Law v Deed [1970] SASR 377-378 Bray CJ, cited with approval in Koniel Alar and Hosea Biu v State [1979] PNGLR 300 at 307 and Imiyo Wamelav The State [1982] PNGLR 269 at 280 (Kidu CJ, Andrew and Pratt JJ).

I accept the defendant’s version of events in this case, that the victim initiated the sexual contact, but in the context that this victim was just a little over 12 years of age. The medical report indicates that there was blood on the examination glove after digital examination, the vaginal walls were not perforated, the hymen was torn. As defence counsel has submitted, the logical source of the blood is the freshly perforated hymen. The victim was a 12 year old girl who was a virgin with an intact hymen up until the crime committed by the defendant. And so although I accept the defendant’s version of events I do so in the context that the victim was an innocent and not experienced person in sexual matters. She had had no experience of sexual penetration. So there was no real and informed consent to sexual penetration as the victim could not have known to what she was consenting. In the context of this offence consent is irrelevant except in so far as it may provide mitigating circumstances.

Secondly, I am urged to accept that no undue force was used. Again I accept the defendant’s version of events that no undue force was used in the perforation of the victim’s hymen by his finger. However I do so in the context of the other material available to me in the District Court Depositions. The statement of the witness Alois Loh reads "I heard screaming at the back of my house...this little girl Lilien came in to my house crying, shivering, naked and was painted with mud...Ndrakum stood on the main road and called or shouted, so when this little girl heard Ndrakum’s voice she then left." The victim went to her own house from where she was taken to the clinic. So although I accept that no undue force was used I find that the experience to which the defendant subjected the victim was to her shocking, even terrifying to the point of forgetting modesty and running naked into a neighbour’s house.

Thirdly I was asked to note that there was some vagueness about the relationship of trust. No further particulars are available than are provided in the short facts on arraignment set out above. I do not fully accept that submission. In the record of interview at Q16 and the answer the defendant admits that the victim is his niece and at Q18 and answer the defendant admits that both in custom and in law he is guilty. And of course the defendant pleaded guilty to the charged element of aggravation that there was an existing relationship of trust. All that can be said is that there are no particulars which make the relationship closer or more distant than what might be expected where an uncle and niece are living in the same village. The defendant was an adult, the victim was a child, and there was an existing relationship of trust. The victim should have been able to rely on the defendant to deal properly with her even if she behaved inappropriately.

In The State v Biason Benson Samson Cannings J restated his list of considerations for sentencing, previously mentioned in The State v Pennias Mokei(No 2, which I adopt, and insert the answers applicable to this case after each issue:

The mitigating and aggravating circumstances are closely balanced. The defendant was some 22-26 years older than the victim and related to her. He took advantage of her for his sexual gratification when he had a wife and the responsibility of 4 children. What the defendant did to the victim was frightening to her. It may have detrimental psychological effects on her later sexual experiences. It is not to be treated as a minor incident simply because the penetration was with a finger and not a penis. Not only must the sentence reflect the balance of justice between the defendant and the victim and her family. It must also reflect the outrage of society in general and the determination of the people of Papua New Guinea to protect children.

The pre sentence report considers the Defendant a suitable candidate for probation and that he is willing to pay compensation. From the particulars of his means it is clear a good deal of the compensation would come from his brothers and sisters.

I do not consider a probation order appropriate, nor any order that compensation be paid in this case. Compensation is a matter for the respective families to work out to restore relations. I consider the role of the Court is to send a strong message that it will protect young girls and that offenders cannot buy their way out of proper punishment. The appropriate sentence is one of 4 years imprisonment with hard labour. This sentence includes some degree of leniency and it would be inappropriate to go on and suspend any part of the sentence. The Defendant is sentenced to 4 years imprisonment less pre trial custody.

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

National Court of Papua New Guinea

State v Pu-uh [2005] PGNC 172; N2949 (24 November 2005)