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State v Kupin [2009] PGNC 289; N3641 (22 May 2009)

N3641

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 475 OF 2009

THE STATE

V

TONNY KUPIN

Wabag: Makail, J.
2009: 13th & 22nd May

CRIMINAL LAW - Sentence - Guilty plea - Sexual penetration - Victim, a female child under 12 years - Big age gap between offender and victim - Victim aged 9 - Offender aged 50 - Sentence of 10 years imprisonment imposed - Less 8 months and 14 days in pretrial custody - Deduction of time spent in pre trial custody sufficient - Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 - Section 229A(1)&(2).

Cases cited:
The State -v- Kigl Philip Petrus: CR No 618 of 2007 (Unnumbered & Unreported Judgment of 10th April 2008)
The State -v- Kolton Duen Songones: CR No 778 of 2007 (Unnumbered & Unreported Judgment of 22nd November 2007)
Ben Wafia -v- The State (2006) SC851
Stanley Sabiu -v- The State (2007) SC 866
The State v Mitige Neheya [1988-89] PNGLR 174
The State v Kiddi Sorari (2004) N2553
The State -v- Soeto Wembo: CR No 229 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

Counsel:
Mr. S. Kesno, for the State
Mr. P. Kumo, for the Offender

SENTENCE

22nd May 2009

1. MAKAIL J: On 13th May 2009, the offender pleaded guilty to one count of sexual penetration of a child under the age of 12 years on 22nd August 2008 at about 12 midday at Tendep village in Laiagam, of the Enga Province contrary to section 229A(1)&(2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. At that time at Tendep village, the offender met the victim, a female child aged 9 and told her that he would buy her some food and drinks at a nearby trade store. She accompanied him to the trade store. On the way at a place called Yakumas, the offender took her into the nearby bush and had sexual intercourse with her. He did that by inserting his penis into her vagina. At that time, the victim was under the age of 12 years.

3. The offence carries a maximum penalty of life imprisonment. The victim is aged 9 and the offender is aged 50. The offender is unmarried and lives in his village. He completed Grade 3 many years ago and is a subsistence farmer although from time to time, he assists a businessman in his village to look after his trade store by cleaning and manning it and receives about K20.00. He is a first offender and cooperated with the police in the investigation of the offence. In fact, he admitted the offence. He has pleaded guilty, thus saving the Court time and money to conduct a trial to determine his guilt. He was severely beaten up by the relatives of the victim after they discovered the offence.

4. On his allocutus, he pleaded for leniency.

5. The offence that the offender has committed is a serious one. It is an act of exploitation of innocent young girls in our country like the victim in this case. I have said in The State -v- Kigl Philip Petrus: CR No 618 of 2007 (Unnumbered & Unreported Judgment of 10th April 2008) that:

"Sexual abuse of very young children and the women in this country has been adequately addressed by the Parliament by passing the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 which came into effect on 10 April 2003. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even "child prostitution" and "child pornography".

It is hoped that by imposition of severe penalties, the public may be made aware that, there is a law which caters for the interest of the young victims as well as the women folks who may suffer from any form of physical sexual abuse. The worse form of sexual abuse is the type that takes place within the home environment between members of the same family or the extended family unit as was the case in the instant case. It is for this reason that the legislature included in section 229B (5) the situation where there is a breach of the relationship of trust, authority and dependency".

6. That was a case of sexual touching of a girl under the age of 12 under section 229B of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 which carries the maximum penalty of 12 years imprisonment. The victim child was a niece of the offender and there existed a relationship of trust where it was breached. The offender rubbed his penis outside the victim's vagina. I sentenced the offender on his guilty plea, to 4 years imprisonment.

7. In the case of The State -v- Kolton Duen Songones: CR No 778 of 2007 (Unnumbered & Unreported Judgment of 22nd November 2007) by His Honour Canning J, sentenced the offender, aged 29 to 8 years imprisonment on his guilty plea of sexually penetrating the vagina of a 10 year old victim with his fingers.

8. I have considered both counsels' submissions on the mitigating and aggravating factors and will comment on them in the course. It has been held that a sentencing judge has discretion to impose a sentence on any offender. In the Supreme Court judgment of Ben Wafia -v- The State (2006) SC851, the Supreme Court reaffirmed this principle in the following way:

"A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605."

9. What is the starting point? Mr. Kumo of counsel for the offender suggests 20 years as the starting point. The Supreme Court in Stanley Sabiu -v- The State (2007) SC 866 suggested that:

"The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment".

10. I will use 15 years imprisonment as a starting point in this case. The offender is a first offender but the guilty plea should not be used to avail him of the consequences and gravity of the serious offence he has committed against the victim.

11. The first serious aggravating factor present in this case is that, the victim suffered injuries to her vagina. The Medical Report of Laiagam District Hospital dated 11th November 2008 reported that:

"2. The vagina:

21. Detected not fully developed genitor-urinary organs externally.
22. Wet and slippery at external left and right laibiais of vagina and at pubic area.
23. Detected multiple bruises and reddish at external vaginal cavity.
24. Urethral opening and undeveloped inner vaginal os revealed intact.
    

..............................

After a week later she was reviewed and found the multiple bruises got infected and pus formation".

12. She was treated with antibiotics and according to that Medical Report, a final review was done after completion of medication and she was seen fully recovered or improved from the multiple bruises to her vaginal area.

13. I must say that quick medical treatment has prevented what could have been a life threatening injury. But the Medical Report shows that the victim suffered bruises to her vagina and was infected before she recovered. I also note from the Statement of the victim that after the act, the victim found it difficult to walk and was dizzy. Later that day, she reported the incident to her mother and her mother took her to Laiagam Police Station to report the matter and then to Laiagam District Hospital for medical treatment. I find this factor operating against the offender.

14. I am also sure the victim has been traumatized by the ordeal. As His Honour Kandakasi J, observed in the case of The State v Kiddi Sorari (2004) N2553, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. This is another factor that operates against the offender.

15. Next, at the time the offence was committed upon the victim there was and is a big age gap. I accept that the victim is a young girl of 9 years while the offender is an adult of 50 years. This is a classic example of a case of a minor and an adult having sex and according to the case of The State v Mitige Neheya [1988-89] PNGLR 174, there is a very big gap in the age difference. The age gap is 41 years. To my mind, it is another aggravating factor.

16. Finally, the offence was committed in the broad day light in an isolated location on the road where the victim was helpless as it is suggested in her Statement that the offender grabbed her and dragged her into the nearby bushes and had sex with her. I find that the commission of the offence was by force. The victim was also induced by the offender when he offered to buy her some food and drinks and the store and lured her to go with him there. On the way, he committed the offence. All these factors operate against him.

17. But I find that no weapons were used against the victim. This operates in the offender's favour. Next, the offender is a first offender. Further, he has pleaded guilty to the commission of the offence. I accept that this has prevented the victim from coming to Court to testify against him and relive the bad memories. It has also saved the Court time and money to conduct a full trial to determine his guilt. I also take into account that the offender has expressed remorse. Finally, I take into account that he is 50 years old. That means he is not a young man. I will treat this as a special mitigating factor. This means that the sentence will be reduced to accommodate the offender's age. See The State -v- Soeto Wembo: CR No 229 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008) where I had applied this principle. I take all these mitigating factors into account in my assessment of the sentence.

18. In the end, I have decided that 10 years imprisonment in hard labour is appropriate and I so order. I deduct 8 months and 14 days for time spent in pretrial custody, thereby giving the offender 9 years, 3 months and 16 days to be served.

Sentence accordingly.

_____________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner