State v Esiko [2009] PGNC 54; N3607 (23 April 2009)

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Criminal law – sentence – sexual assault – Criminal Code, Section 349 – trial – male offender sexually assaulted female victim – no circumstances of aggravation – sentence of 3 years imprisonment.

A man, 22 years old at the time, was convicted after trial of the sexual assault of a woman, then aged 18, who was his neighbour and well known to him. The offender tried to sexually arouse the victim by touching her breasts. After a considerable period of undecidedness she rejected his sexual advances but he persisted, touching her genital area and groin and pulling down her trousers and tearing her underwear before letting her go.

(1) The maximum penalty for sexual assault, without aggravating circumstances, is five years imprisonment, so a starting point of 30 months is appropriate.

(2) Mitigating factors are: offender stopped the assault himself; only one offender; no aggravated violence; no physical injury; no special relationship of trust; isolated incident; some compensation paid; no further trouble; first-time offender.

(3) Aggravating factors are: did not give himself up; took the matter to trial; not a youthful offender.

(4) A sentence of 3 years was imposed. The pre-sentence period in custody was deducted and the balance of the sentence was suspended, subject to a number of conditions, including payment of further compensation and a community work program, due to a good pre-sentence report and reconciliation between the offender and the victim and their families.

The State v Mark Samuel Haupas (2007) N3186
The State v Ima Esiko CR No 1286 of 2004, 23.03.09

CR – criminal case reference
ENB – East New Britain
J – Justice
K – Kina
N – National Court judgment
No – number
OK – okay
v – versus
WNB – West New Britain

CANNINGS J: Ima Esiko, the offender, has been convicted after a trial of the sexual assault of a female neighbour and family friend. He is before the court to be sentenced.

The offence was committed in an oil palm block at Kapore on the evening of 1 September 2004. At the time the offender was aged 22. The victim was 18 years old and doing grade 11 at Kimbe Secondary School.

The offender claimed that the victim was his girlfriend and that he did not touch her. That version of events was rejected. The State proved beyond reasonable doubt that the offender met the victim at the road near where they were living. They talked on the road for about an hour and he asked her for sex. She went into an oil palm block of her own free will with the offender. Once inside the block and in a secluded location he touched her breasts in an attempt to sexually arouse her. After a considerable period of undecidedness the victim eventually resisted, struggled against him and said no to his sexual advances. He then pulled down her trousers and tore her underwear and in the course of doing so touched her genital area and groin.

Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v Ima Esiko CR No 1286 of 2004, 23.03.09).

The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I say sorry for what I have done and promise that I will not do such a thing again.

A pre-sentence report prepared by the Kimbe branch of the Community Correction and Rehabilitation Service is summarised below.

- Educated to grade 10 at Hoskins Secondary School, 1999; later did an electrical trades course at Moramora Technical School

- Has paid K1,000.00 + 1 pig compensation, as a result of mediation witnessed by community leaders

- Victim and her family request K4,000.00 more compensation – do not want to see the offender sent to jail

- Suitable for probation, subject to conditions, including payment of more compensation.

Mr Beli highlighted the favourable pre-sentence report, the payment of compensation and the fact that the victim and her family do not support a custodial sentence. As a first-time offender, a sentence of no more than three years is warranted and it should all be suspended, Mr Beli submitted.

Mr Popeu pointed out that the offender took the matter to trial so he should get a sentence considerably above what would have been appropriate on a guilty plea. He suggested that a sentence of four years was warranted and that a wholly suspended sentence would not be appropriate.

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

The offender was charged with using force against the victim. If proven this would have been a circumstance of aggravation and the maximum sentence would have been ten years imprisonment. However, it was not proven. The offender has been convicted under Section 349(1) of the Criminal Code without aggravating circumstances, and the maximum penalty is five years imprisonment.

I have been unable to locate a suitable precedent, so I will use the mid-point of two years, six months (30 months) as the starting point.

The only recently reported sentence in a sexual assault (as distinct from rape or attempted rape) case is three years imprisonment, which I imposed on a guilty plea in a Bialla case The State v Mark Samuel Haupas (2007) N3186. The offender followed the victim, a woman who was seven-months pregnant, who walked down to a creek to fetch water. He talked to her and when the victim got the water and was walking back to her house, he followed her again, then held her on the neck and forced her to the ground, got on top of her and tried to remove her clothes. She struggled but the offender managed to remove her undergarments and touched her sexual parts, without her consent, before he was disturbed by passers-by and ran away. No circumstances of aggravation were charged in the indictment and the offender was considered fortunate not to have been charged with the more serious offence of aggravated rape. It was a very serious case of sexual assault.

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. The list is based on the considerations identified in Haupas. 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.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the incident. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the sexual assault not progress further due to the offender’s actions? Yes, the offender appeared to give up, once it became clearly apparent that the victim did not want to have sex with him.

3. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.

4. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes.

5. Was there no relationship of trust, dependency or authority between the offender and the victim and was the victim not a vulnerable person due to her age or circumstances? Yes.

9. Has the offender done anything tangible towards repairing his wrong? Yes. He has participated in a mediation and paid compensation.

10. Has the offender not caused further trouble to the victim or the victim’s family since the incident? Yes.

12. Has the offender genuinely expressed remorse? Neutral. He said he was sorry but the apology sounded rather hollow.

15. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.

After weighing all these factors and bearing in mind that there are eight mitigating factors compared to three aggravating factors, the head sentence should be the same as for Haupas (which was a much more serious assault, but it was a guilty plea).

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

I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the pre-sentence period in custody from the date of the offender’s conviction to the date of sentence, which is four days.

Yes, because of the favourable pre-sentence report, in which the victim has expressed the desire that the offender not be sent to jail, I will suspend the balance of the sentence on conditions, including an extra K2,000.00 payable within three months of today.

1. must, within three months after today, pay a further K2,000.00 compensation to the victim;

2. must within 48 hours after today attend the Probation Office and submit to directions from the Senior Probation Officer and arrange a draft community work program;

3. must attend Court on 4 May 2009 at 1.30 pm for ratification of community work program;

4. must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

5. must not leave WNB Province without the written approval of the National Court;

6. must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;

7. must attend his local Church every weekend for service and worship and submit to counselling;

8. must report to the Probation Office at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

11. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

12. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

Ima Esiko, having been convicted of one count of sexual assault contrary to Section 349(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	3 years
Pre-sentence period to be deducted	4 days
Resultant length of sentence to be served	2 years, 11 months, 3 weeks, 3 days
Amount of sentence suspended	2 years, 11 months, 3 weeks, 3 days
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

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

National Court of Papua New Guinea

State v Esiko [2009] PGNC 54; N3607 (23 April 2009)