N3076

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.662 of 2005

THE STATE

V

JOSHUA MAKATA
TONY EPESO
PETERSON JOHN
GARRY ANDREW &
KOLENA STEVEN

Alotau: Jalina J
2006: 11 & 23 May

CRIMINAL LAW – sexual penetration -sentence - plea of guilty – offenders aged 19 years, female child aged 15 years and 4 months- lack of consent- offence committed in circumstances akin to pack rape– no weapons used to threaten victim- no aggravated physical violence or physical injury-breach of trust situation – isolated incident –offenders cooperated and admitted to police – expressed remorse – young first offenders-custodial sentence necessary as deterrent- Criminal Code (Sexual Offences & Crimes Against Children) Act 2002, s. 229A (1) .

Cases Cited: 
The State v Biason Benson Samson (2005) N2799
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 George Taunde (2005) N2807
The State v Titus Soumi (2005) N2809
The state v John Ritisi Kutetoa (2005) N2814
The State v Nick Teptep (2004), N2612:

Counsel:
Mr. A. Kupmain, for the State
Mr. J. Mesa, for the Offenders

23 May, 2006.

1. JALINA J. These offenders have pleaded guilty to a charge of sexual penetration of a child under the age of 16 years contrary to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002(Act No. 27 of 2002). Section 229A provides:

"229A. SEXUAL PENETRATION OF A CHILD.

(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.

2. For better understanding by the layman and the uninformed, Cannings J has quite ably summarized the penalty regime under s, 229A in The State v Biason Samson (2005) N2799 where His Honour stated that:

"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."

"Sexual Penetration" is defined in Section 6 of the Criminal Code as follows:

"6. SEXUAL PENETRATION.

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 any 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."

"Relationship of trust, authority or dependency" is defined in Section 6A of the Criminal Code, as follows:

"(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."

3. It appears from the allegations put to the Court by the State Prosecutor for purpose of arraignment and the evidence of the victim that on the night in question she was at Mrs. Wakudede’s house upon request by Mrs.Wakudede for her to spend the night there. At about midnight, while she was sleeping, Joshua Makata and Peterson John woke her up and asked her to go with them to get some betel nuts at Joshua Makata’s house. She woke up and followed them believing them that they would give her betelnuts but when they reached the house, they pulled her into the room and the 5 of them took turns in having sex with her starting with Tony Epeso and ending with Kolena Steven. She struggled to free herself but to no avail as they over powered her. After they finished having sex with her she returned to Mrs. Wakudede’s house.

4. According to her mother who had sworn a Statutory Declaration, the victim was born on 17 September, 1989 so she was about 15 years and 4 months old at the time of the incident. 

5. This case having been one where the offenders have pleaded guilty, the question of whether or not the victim was penetrated sexually does not arise. The offence also being a technical one founded on the age of the victim, consent by the victim, if true as claimed by these prisoners, is immaterial as far as criminal culpability is concerned. Consent however, can be an important mitigating factor in determining sentence in cases involving sexual penetration depending on the age gap between the offender and the victim. The greater the age gap, the less likely for real consent to exist. Sexual penetration in circumstances which demonstrate lack of consent is tantamount to rape so it could attract a sentence equivalent to a sentence for rape.

6. Sexual penetration is a relatively "new" offence which was brought into the statute books in this jurisdiction only about 4 years ago in June 2002. The purpose of the new law was to protect children from exploitation and abuse by adults, sometimes even by close relatives, which were becoming widespread not only in towns and cities but also in villages where one did not normally expect such a thing to happen. The prescription of very high penalties reflects the abhorrence with which Parliament viewed this crime. It is the people at large speaking through their elected representatives that sexual abuse and exploitation of our children, who would be our future leaders, should no longer be tolerated.

7. In view of this offence being "new", there are not many cases in the National Court to serve as a guide as to the appropriate sentence. As far as I am aware, there is no Supreme Court decision on this "new" offence. The few cases that have come before the National Court are first of all, The State v Peter Lare (2004) N2257, where Kandakasi J sentenced a 40 year old man who pleaded guilty to sexually penetrating his 12 year old adopted daughter to 20 years. Not only was it a breach of trust case but also one where there was persistent abuse over a period of 2 years during which the offender passed a sexually transmitted disease to the victim. 

8. The next case was that of The State v Penias Mokei (No.2) N2635, where Cannings J sentenced a 33 year old uncle of the victim who was aged 13, to 15 years. It was a breach of trust case with no aggravated physical violence.

9. In The State v Eddie Trosty (2004) N2681, Kandakasi J sentenced a 21 year old man to 6 years for committing the offence on his 15 year old girlfriend who consented. In fact they had had consensual sex on several occasions previously. 

10. Then in The State v Kemai Lumou (2004) N2684, Kandakasi J sentenced a 22 year old man to 17 years for committing the offence on the 14 year old victim who was his niece. A bush knife was used to threaten the victim who was also infected with a sexually transmitted disease. The sentence followed conviction after a trial during which the victim no doubt had to relive the trauma of having been sexually violated by her own uncle in a breach of trust situation.

11. In The State v Biason Benson Samson (2005) N2799, Cannings J sentenced a 17 year old offender to 5 years for committing the offence against the victim who was aged 13. No weapons were used and no aggravated physical violence or physical injury was present. It also did not involve a breach of trust. The offender was ordered to serve 2 years and 3 years were suspended.

12. In The State v George Taunde (2005) N2807, Cannings J sentenced a 33 year old offender to 10 years for committing the offence with his niece who was aged 13 years. There was lack of consent but with no weapons were used. Also no aggravated physical violence but involved a breach of trust.

 13. In The State v Titus Soumi (2005) N2809, Cannings J sentenced a 30 year old offender who was married to the victim’s older sister to 2 years. The victim was aged 14 years. No threats or physical violence was used and the act was consensual. With respect, it seems to me to be rather odd that only 2 years was imposed in a case where there was a 16 year age gap between the offender and the victim.

14. In The state v John Ritisi Kutetoa (2005) N2814, Cannings J sentenced a 39 year old step-father of the victim to 17 years. The victim was aged 10 years. Although no weapons were used, the victim sustained physical injuries. There was also a breach of trust.

15. So those few cases (there may be more), demonstrate the different sentencing trends for the offence of sexual penetration. In deciding the appropriate sentence in this case, I have taken into account their respective statement on the allocutus as well as their plea of guilty which has saved this young girl the trauma of reliving what she experienced that night. I have also taken into account their expression of remorse and the fact that they are young first offenders. The age gap is also not too great. I have also taken into account the submission of both the counsel for the defense and the prosecution.

16. Let me say however that in this case, notwithstanding the factors that I have alluded to above and the absence of use of weapons and physical injuries to the victim, there is a breach of trust to start with. Relationship of trust is not confined to those situations or relationships defined in s. 6A but can include a situation such as this where there is trickery and deception involved. Here, the victim agreed to follow Joshua Makata and Peterson John to Joshua Makata’s house honestly believing that they were going to give her the betel nut they told her they had, but it turned out that they had something else in mind. Joshua Makata told police in the record of interview that he believed she liked him and thus consented because she asked for him during a soccer game previously. If he believed she was consenting (which is immaterial) then how and why it was that Tony Epeso was the first one to have sex with her. Not only that, this 15 year old girl had to suffer the indignity of being sexually violated in a room right next door while the others were sitting outside listening to what was going on inside. It also seems to me that they all took it as fun as they had sex with her one by one. It seem to have been a miracle that this young girl has not sustained any major physical injuries to her vagina through the act of sexual intercourse which ended with each one of you releasing his sperm into her vagina. It seems to me that the victim was a mere sex object to you and in this regard I express the same sentiments that my brother Sevua J expressed in a rape case (which this case is akin to) in The State v Nick Teptep (2004), N2612:

"Rape has become a very prevalent violent crime. Respect for the dignity of our women folk has diminished because people like the prisoner treat women like sex objects rather than human beings who have equal rights and opportunities as men do. The community has had enough of this kind of abuse and violation of women. I believe that the sentence of the Court must reflect some of these values, but more so, the society’s utter revulsion of this kind of violation and degradation of women. I know that the Courts in recent times have been increasing sentences for rape and pack rape and this, in my view, reflect the attitude that enough is enough and that the women folks look to the Courts for protection."

17. In all the circumstances of this case, and bearing in mind the mitigating as well as the aggravating factors that I have sought to demonstrate above, I consider that a punitive custodial sentence must be imposed as a deterrent to these offenders as well as others who may contemplate committing sexual penetration that is akin to pack rape. With the prevalence of sexual violation and abuse of the female members of our communities, there is an urgent and immediate need for them to be protected from the male members who appear to be full of lust and only seek to use them as mere sex objects.

18. The sentence I consider appropriate therefore, is a period of 20 years imprisonment in hard labour on each of them which I so impose. I deduct from that sentence the 1 year, 4 months and 4 days that they have been in custody awaiting trial which leaves 18 years, 7 months and 26 days in hard labour.
____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders