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State v Kopun [2009] PGNC 292; N3871 (29 June 2009)

N3871

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1342 of 2008

THE STATE

-V-

GARAINA KOPUN

Kimbe: Kandakasi, J.
2009: 10th And 29th June

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Guilty plea – First time offender – Substantial age difference – More than one instance of sexual abuse of same victim – Sentence of 15 years imposed – Section 229A(1) of Criminal Code.

Cases cited:
The State v. Larson Magua (2009) N3874
The State v. Eddie Trosty (2004) N2681
The State v. Peter Lare (2004) N2557
The State v Kemai Lumou (2004) N2684
The State v. Thomas Angup (2005) N2830.
The State v. John Ritsi Kutetoa (2005) N2814
The State v Paul Nelson (2005) N2844
Stanley Sabiu v. The State (2007) SC866

Counsel:

F. Popeu, for the State.
J. Yapao, for the Accused.

DECISION ON SENTENCE

29th June, 2008

1. KANDAKASI J: You pleaded guilty to one charge of sexual penetration of child under the age of 16 years, contrary to s.229A (1) of the Criminal Code. I received both yours and that of the State's submission as to an appropriate sentence for you. You have through your learned counsel, Mr. Yapo, asked for a sentence of 5 years whilst the State through its learned counsel, Mr. Popeu asked for a sentence of 15 years.

Relevant Issues

2. The issue for this Court to determine is simple. What is an appropriate sentence for you? A consideration of the relevant facts or the circumstances in which you committed the offence will help determine the issue presented. Also, your personal and family backgrounds, the factors operating both in your favour and those against you and the kind of sentences imposed in other similar cases have an influence on the kind of sentence you should receive. Accordingly, I will give consideration to these factors as well as others as they become relevant and necessary. I start that exercise with a consideration of the relevant facts.

Relevant Facts

3. On 04th September 2008, the victim of your offence (JP), then aged 13 years old was at the residence of Robert Buku at Dagi Oil Palm Settlement Block, here in Kimbe, West New Britian Province. You lived in the same house as did the victim and she took you as an uncle. On the day in question, you asked the victim to accompany you to go and get some bettlenut and she did. You took her into a bettlenut patch and put the victim down on the ground. You then removed here clothes and went on to have sexual intercourse with the victim. After satisfying your sexual desire, you left the victim who went and reported what you did to her to her parents, who eventually reported the matter to the police whereupon the police arrested and charged you. Although, you have been charged and you pleaded guilty to only one count of sexual penetration, you spoke of 7 different instances of sexual intercourse with the victim in your allocutus.

The Offence and Sentencing Trend

4. The offence you committee is created by Section 229A (1) of the Criminal Code and prescribes its penalty in the following terms:

"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."

5. As I said in the case of The State v. Larson Magua,[1] amendments to the Criminal Code in 2002 with the passing of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 increased the penalty from one of 5 years to 25 years.

6. Again, as I have said in a number of cases, as in The State v. Eddie Trosty,[2] Parliament changed the law following calls for the protection of girls, women and children both internationally and internally. That was in the face of many cases of serious sexual abuses of children. Given that reason for the change in the law, I continue to hold the view that, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law.

7. In the Eddie Trosty case, I decided to impose a sentence of 6 years on a guilty plea. There, the prisoner and his victim had a boyfriend and girlfriend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had several consensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease or make her pregnant. These factors influenced me to arrive at the sentence of 6 years.

8. Before that, in The State v. Peter Lare,[3] I imposed a sentence of 20 years. That was again in appreciation of the reasons for the change in the law. In that case, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference between them. The prisoner was 40 years old whilst the victim was under age 12. The prisoner did not express any genuine remorse evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted decease.

9. In The State v Kemai Lumou,[4] I had regard to the sentence and the particular circumstances in which the prisoner committed the offence in Peter Lare case and imposed a sentence of 17 years. The Court convicted Kemai Lumou after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

10. Sometime later, Mr. Justice Lay had regard to my judgment in The State v. Peter Lare,[5] and imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup.[6] From the headnote to that case, I note that, the Defendant was convicted on his guilty plea to one count of sexual touching of a child under 12 years in 1998, one count of sexual penetration of a child under 12 years in 1998, two counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing relationship of trust. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim's schooling got terminated prematurely.

11. Cannings J, in his judgment in The State v. John Ritsi Kutetoa,[7] cited the judgments in The State v. Peter Lare,[8] and The State v Kemai Lumou[9] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. The victim was about 11 years old at the time. There was a relationship of trust being a stepfather and stepdaughter which the prisoner breached.

12. In 2005, Cannings J. in The State v Paul Nelson[10] in my view, gave an excellent summation and a comparable table of nearly all of the cases on sexual penetration under s. 229A of the Code thus far dealt with by the Court since the amendments in 2002. That summation shows that, sentences have ranged from as low as 2 years up to the highest at 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists serious aggravating factors such as, serious injuries, threats or actual use of violence to secure the commission of the offence, or the victim had been exposed to sexually transmitted deceases or had become pregnant.

13. Recently, the Supreme Court in Stanley Sabiu v. The State,[11] upheld a sentence of 17 years I imposed against the appellant in the National Court sitting in Vanimo. That was in a case, where an adult male took his young 6 year old nephew into a nearby bush and sexual penetrated him. I had regard to most of the cases I have already cited above before arriving at the decision to impose the sentence of 17 years. The Supreme Court having regard to the same cases and the particular facts of the case, upheld my decision on sentence.
    

Sentence in Your Case

(i) Mitigating Factors

14. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you. Considering first the factors in your favour, I note that, your conviction was on your guilty plea. That saved the State extra time and money it could have spent on running a trial. It also spared the victim of the shame and trouble you could have put her through to testify against you. At the same time, you save the Court much time it would have taken had you pleaded not guilty.

15. Secondly, I note that, this is your first ever conviction, although you freely admitted to having committed 6 more of the same offence against the same victim. The law has however, not caught up with you and had you charged for those additional six offences and the State did not raise those additional instances in its charge and brief facts in support of the charge. There is no explanation before the Court as to why the State chose not to have you charged or raise those additional offences against you. The law requires me to proceed only on the basis of what has been formally put to the State against you. Hence, I will have no regard to the additional 6 offences you committed. This effectively means that, in so far as the law and the State's records against you are concerned, you have a good record until the commission of the offence for which you are in Court. All of that has now been tarnished by your own senseless conduct against someone you could consider as your own.

16. Thirdly, you did say sorry in your allocatus for what you have done, appreciating that it was wrong. This is consistent with your early admission of guilt and you also admitted to having sexually penetrated the same victim 6 other times with her consent. However, I note that, there is no evidence of you having paid any compensation for the offences you committed. In many other cases, I have taken the view that, a mere expression of remorse is not good enough, unless supported by something tangible such as the payment of compensation for one's commission of an offence. Accordingly, I am of the view that, your expression of remorse in this case without you taking any step that is tangible to pay for your crime means nothing.

17. Fourthly, I note that, you did not use any dangerous weapon such as a gun, bush knife or an axe or anything like that to secure your various acts of sexual intercourses with the victim. An absence of a use of such weapons usually operates in favour of an offender.

18. Finally, I note and take into account your claim that, you had your sexual intercourses with the victim with the victim's consent. If this is true, this may have made it unnecessary for you to use any offensive weapon to secure the commission of the offence. Nevertheless, I note that, consent is not an essential element of the offence with which you have been charged with. Further I note that, even if the victim gave you her consent, I cannot see however that, she could have freely and on her own initiative given you any such consent. There is nothing to indicate that, despite her age, the victim was a mature person and was able to distinguish between what is right and what is wrong in matters of human relations and in particular, entering into sexual relationships. I am therefore of the view that, you played a lead role in securing her sexual intercourses with you.

(ii) Aggravating Factors

19. Turning now to the factors operating against you, I note and take into account the fact that, you engaged in an unlawful act of sexual intercourse with a child. As I already said, Parliament improved the law against sexual abuse of our women, girls and children because they are vulnerable and need our protection and not exploitation by adults. There has been wide spread calls for better protection of our children and girls by the imposition of tough penalties. Despite these efforts, there is a continuing number of men sexually exploiting children, girls and women. In so doing, people like you are having more regard to your own selfish sexual ends and not the protection of our children, girls and women.

20. Secondly, I note and take into account the fact that, you were in a position of de facto trust. The victim was not a stranger. She lived in the same house with you. She took you and treated you as an uncle. In the absence of any evidence to the contrary, I infer from the fact of you and the victim residing in the same place, you must have been closely related to the victim and her parents. There is every indication that, the victim trusted you. This is evidenced for instance by the fact of the victim coming with you to collect bettlenuts. Instead of respecting and looking after her as one of your own children, you destroyed the trust she had in you when you committed the sexual offences against her. It is clear to me that, you exploited her with your sexual exploitation of her at the highest. The law allows for severe punishment of people who commit offences in breach of trusts vested in them as in your case.

21. Thirdly, I note that, there is a huge age difference between you and your victim. You are around 30 years of age, while your victim was under 13 years old at the time of your offence, giving a difference of 17 years. Of the two of you, you were in a better position to appreciate that, what you set out to do in terms of having the unlawful sexual intercourses with her was wrong not only legally but morally too. I note that, it is also against the Highlands' custom to do the kind of things you did. You could have been easily killed, if not, seriously attacked and injured in retaliation. You were fortunate to escape that. That shows that,. the victim's relatives have decided to let the formal legal system to take its normal cause, which is commendable. This must be taken into account when determining an appropriate sentence for you.

22. Finally, you committed an offence that is prevalent. As we have already noted, it is the prevalence of this offence not only in Papua New Guinea but almost the world over that has caused Parliament to amend the law by increasing the penalty from 5 years previously to 25 years now for a charge under s.229A (1). This is necessary because children, young girls and women in our society need the protection of everyone in our society. They have been repeatedly violated and treated by some, only as mere sex objects as if they have no human dignity and a right to life and a right to live in our various societies without fear of sexual predators like you. The courts have followed Parliament's wish and have imposed stiffer penalties compared to what they used to impose prior to the change in the law.

23. In addition to the foregoing, I note and take into account your personal background. In summary, I note you originally come from Kol Village in the Jimmy District of the Western Highlands Province. You have been up to grade 5 primary education and follow the Lutheran Church teaching. Your father is deceased but your mother is alive and you have 3 bothers and 4 sisters. At the time of your commission of the offences, the New Britain Palm Oil Limited employed you as an oil palm cutter.

The Decision

24. Carefully, weighing the factors for and against you, I note that, the factors in aggravation outweigh those in your favour. However, your case is not as worse as was the case in the Peter Lare case or even that of Thomas Angup. Those were cases in which there were repeated acts of sexual penetration over a period of time with serious aggravating factors such as infecting the victim with a sexually transmitted decease in the first case and pregnancy in the second case.

25. I note that, your case comes closer to the Stanley Sibu case. That case was nevertheless a bit more serious than your case because, the offence was committed against the course of nature and also against a close relative. The circumstances, demonstrated a case of rape but the State had him indicted under s.299A.

26. In the particular circumstance of your case, I consider a sentence of 15 years appropriate and I impose that sentence against you. Of that sentence, I order a deduction of your pre-trial and pre-sentence custody periods. This will leave you with the balance to serve, which I order you do so in hard labour at the Lakeamata Correction Service. A warrant of commitment in those terms shall be issued forthwith.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] CR 76 0f 2008, delivered on 29^th June 2009.
^[2] (10/09/04) N2681.
^[3] (20/05/04) N2557.
^[4] (23/09/04) N2684.
^[5] Supra note 2.
^[6] (21/04/05) N2830.
^[7] (22/03/05) N2814.
^[8] Supra note 2.
^[9] Supra note 3.
^[10] (25/05/05) N2844.
^[11] (2007) SC866.