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State v Kulami (No.2) [2009] PGNC 261; N4473 (29 June 2009)

N4473

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 737 0F 2007

THE STATE

V

ARNOLD KULAMI (NO 2)

Bialla: 20 May 2009
Kimbe: 25 May, 26 June 2009
Cannings J

SENTENCE

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – sentence after trial – offender a 50-year-old man; victim, a 6-year-old girl – Criminal Code, Section 229A(1) – sentence of 17 years.

A 50-year-old man was found guilty after a trial of engaging in an act of sexual penetration with a child under the age of 16 years, a 6-year-old girl who is his niece. There was no aggravated physical violence.

Held:

(1) The maximum penalty in this case was life imprisonment and a useful starting point is 20 years imprisonment.

(2) Mitigating factors are: offender acted alone; no weapon or aggravated violence; no STD; isolated incident; no further trouble; first-time offender.

(3) Aggravating factors are: large age gap; tender age of victim; no consent; did not give himself up; no co-operation with police; no reconciliation; did not plead guilty.

(4) A sentence of 17 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Joe Nawa v The State SCR No 16/2006, 02.03.07
Saperus Yalibakut v The State (2006) SC890
The State v Arnold Kulami (2009) N3632
The State v Charles Rome CR No 502/2007, 13.07.07
The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09
The State v Francis Guandi Borie CR No 289/2007, 16.10.07
The State v John Ritsi Kutetoa (2005) N2814
The State v Kolton Duen Songones CR No 778/2007, 22.11.07
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Sawan Raumo CR No 876/2007, 18.09.07
The State v Timothy Bipi (2009) N3608

SENTENCE

This is a judgment on sentence for an offence under Criminal Code, Section 229A(1).

Counsel

A Kupmain, for the State
S Maliaki, for the offender

26 June, 2009

1. CANNINGS J: This is the decision on sentence for a 50-year-old man, Arnold Kulami, convicted after trial of engaging in an act of sexual penetration with a child under the age of 16 years, a 6-year-old girl, "M", who is his niece. The offender committed the offence under Section 229A(1) of the Criminal Code on 28 August 2007 at Tiauru in the Bialla area of West New Britain. He took M into his house at about 7.00 pm while his relatives were outside mourning the death of his brother, Andreas Kulami. A haus krai had been set up and the wife of the deceased, M's mother, Elizabeth, was making sleeping arrangements for her sons. He took the opportunity, while he was alone with M, to sexually penetrate her by inserting his penis into her vagina. M reported to her mother that the accused had done bad things to her, so the mother examined M's genital area and then took her to Bialla Health Centre. M underwent a medical examination that night. There was semen over her vagina and minor bleeding from scratches and she was traumatised. Further details of the offence are provided in the decision on verdict (The State v Arnold Kulami (2009) N3632).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I am a sick man and because I have been going to and from court many times I am now even more sick. I will leave everything up to the court. I want the court to know that because of this case they have taken all my personal property and destroyed my house. I thank the court and ask for mercy and for a non-custodial sentence so I can look for some money to compensate the victim and her family. I do not have any immediate relatives in West New Britain. I am here by myself and this has caused me to suffer a lot.

PRE-SENTENCE REPORT

4. Arnold Kulami is a Chimbu man who came to live at Tiauru 23 years ago. He was living with his brother Andreas until he died in 2008. He has not been back to Chimbu for a long time. He is the second-born in a family of four. His two brothers have died and his sister, who lives in Chimbu, comes to visit occasionally. Both his parents are deceased. He has been married twice. His first wife died and his second wife left him. He has no children. He has had no formal education or employment. He was surviving financially by earning income from his brother's oil palm block. However, since the incident in August 2008 he has been shut out of the place that he was living and prevented from harvesting the oil palm. He claims that his poor health is due to a 'grade 3 spleen' (but there is no medical evidence to support that contention). He is a Roman Catholic but is 'not committed'. He appears to have no family or community support. The report concludes that he would be a danger to the community if released from custody. He is not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Ms Maliaki highlighted three mitigating factors. First, that the victim, although of tender age, did not sustain serious physical injuries. Secondly, the offender has no prior convictions. Thirdly, he is of an advanced age and in poor health. Therefore the court must ensure that it does not impose a sentence that would be crushing. Seven years imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Kupmain, for the State, submitted that a sentence of 15 to 17 years should be imposed, in light of the fact that penetration was by force and that the offender had pleaded not guilty, necessitating a trial. The tender age of the victim made it a very serious case and the offender's belated offer to pay compensation – coming after he had put the victim and her mother through the further trauma of a trial – should be dismissed as non-genuine. As for his claimed poor medical condition, there is no evidence before the court but even if there were evidence the condition he has described is not serious and can be treated while he is in custody. A suspended sentence would only lead to more problems, Mr Kupmain submitted.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. There were two circumstances of aggravation charged in the indictment and they were both proven beyond reasonable doubt: the child was under the age of 12 years and there was an existing relationship of trust, authority and dependency between the offender and the child. The maximum penalty is therefore life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. As the maximum penalty is life imprisonment I consider that a useful starting point is 20 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

10. I will summarise in table 1 the sentences I have imposed for offences of this nature where the victim has been less than 12 years old. In table 2 two Supreme Court cases are summarised.

TABLE 1: NATIONAL COURT SENTENCES ON SECTION 229A –
CHILD UNDER THE AGE OF 12 YEARS

TABLE 2: SUPREME COURT SENTENCES ON SECTION 229A –
CHILD UNDER THE AGE OF 12 YEARS

STEP 4: WHAT IS THE HEAD SENTENCE?

11. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

12. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the complainant? No, the offender was aged 50 and the victim 6; an age gap of 44 years.
   
2. Is the victim not far under the age of 16 years? No.
   
3. Was there consent? No. The victim was so young she was not capable of consenting.
   
4. Was there only one offender? Yes.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Neutral. I accept that the physical injuries suffered were not serious but injuries were inflicted and they were not so minor as to amount to a mitigating factor.
   
7. Did the incident have only a minimal impact on the child? Neutral.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such a relationship, was it a distant one? No.
   
9. Was it an isolated incident? Yes.
   
10. Did the offender give himself up after the incident? No.
    
11. Did the offender cooperate with the police in their investigations? No.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
13. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
14. Has the offender pleaded guilty? No.
    
15. Has the offender genuinely expressed remorse? No.
    
16. Is this his first offence? Yes.
    
17. Can the offender be regarded as a youthful offender? No.
    
18. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. The offender is of an advanced age and probably not in good health.
    

13. To recap, mitigating factors are:

• No 4 – offender acted alone;
• No 5 – no weapon or aggravated violence;
• No 9 – isolated incident;
• No 13 – no further trouble;
• No 16 – first offender;
• No 18 – age and state of health of offender.
  

14. Aggravating factors are:

• No 1 – large age gap;
• No 2 – tender age of victim;
• No 3 – no consent;
• No 8 – relationship of trust;
• No 10 – did not give himself up;
• No 11 – no co-operation with police;
• No 12 – no reconciliation;
• No 14 – did not plead guilty;
• No 15 – no remorse;
• No 17 – not a youthful offender.
  

15. The other factors are neutral.

16. There are six mitigating factors compared to ten aggravating factors, which provides justification for sentencing above the starting point of 20 years. This is certainly not a case that warrants a sentence of only seven years imprisonment, which was the sentence contended for by the defence counsel. This is a more serious case than all the cases shown in table 1, given the age of the victim and that the offender did not plead guilty. For the same reasons this is a more serious case than the two Supreme Court cases shown in table 2. A sentence higher than the highest of those sentences (17 years) might therefore be warranted. However, I will place considerable weight on the advanced age of the offender and the probability (though it has not been proven) that he is in a poor state of health. I consider that a sentence of 25 years would be warranted in this case were it not for those factors peculiar to this offender. I accept Ms Maliaki's submission that the court should avoid imposing a crushing sentence on a 50-year-old, unhealthy man. I have therefore decided to impose a sentence of 17 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is eight months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. The pre-sentence report is not a favourable one, especially as the offender has not attempted to apologise or reconcile with the victim or her family. Therefore I will not suspend any part of the sentence.

SENTENCE

19. Arnold Kulami, having been convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child, is sentenced as follows:

Sentenced accordingly.
_________________________

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