N3608
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 201 & 201A OF 2003

THE STATE

V

TIMOTHY BIPI

KIMBE: CANNINGS J

26 MARCH, 14, 23 APRIL 2009

SENTENCE

Criminal Law – sentence – two child sex offences – sexual touching of a child under the age of 16 years, Criminal Code, Section 229B – engaging in an act of sexual penetration with a child under the age of 16 years, Criminal Code, Section 229A – male offender aged 15 years at time of offences, separate female victims, aged 7 years and 9 years – guilty plea.

A 22-year-old man pleaded guilty to sexually touching a 7-year-old girl and, in a separate incident, sexually penetrating the first victim’s nine-year-old sister. The offender was 15 years old at the time of the offences. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) For count 1 (sexual touching) the maximum penalty was 5 years (due to the offence being committed prior to the commencement of the existing law) and the offender was given a notional sentence of 2 years imprisonment.

(3) For count 2 (sexual penetration) the maximum penalty was life imprisonment and the offender was given a notional sentence of 6 years imprisonment.

(4) The total potential sentence was 2 years + 6 years = 8 years imprisonment.

(5) The sentences should not be served concurrently as there were two incidents and different victims.

(6) A sentence of 8 years would not be excessive.

(7) The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, as the victims and their family were not interested in further compensation.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "IO" (2005) CR No 1166 of 2004
The State v Biason Benson Samson (2005) N2799
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
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Kagewa Tanang (2005) N2941
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Paul Nelson (2005) N2844
The State v Sawan Raumo CR No 876/2007
The State v Thomas Tukaliu (2006) N3026
The State v William Patangala (2006) N3027
The State v Willie Dominic (2005) N2938

Abbreviations

The following abbreviations appear in the judgment:

CR – criminal case reference
J – Justice
K – Kina
N – National Court judgment
No – number
Nos – numbers
OK – okay
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
v – versus

SENTENCE

This was a judgment on sentence for an offender who pleaded guilty to two child sex offences.

Counsel

F Popeu for the State
S Maliaki & D Kari for the offender

CANNINGS J: This is the decision on sentence for a 22-year-old man, Timothy Bipi, who has pleaded guilty to two child sex offences. The offences were committed seven years ago when the offender was aged 15. The case has taken a long time to be resolved because the offender jumped bail and went to his home province, East Sepik, and has only recently been re-arrested.

Under the first count on the indictment, he was convicted of sexually touching a five year old girl, an offence under Section 229B(1)(a) and (4) of the Criminal Code. He was living with the girl and her parents at their home at Kapore Primary School, near Kimbe. He called the girl into the haus boi and told her to remove her clothes and lie on the bed, which she did. He opened her legs and touched her vagina for sexual purposes.

Under the second count he was convicted of engaging in an act of sexual penetration with a nine year girl, an offence under Section 229A(1) and (2) of the Criminal Code. The offence was committed in the same family home and on this occasion the victim was the first victim’s sister. Her parents had gone into town and she was left playing with other children at a nearby river. The offender called her from there into the house. She came inside and he told her to sit on a cushion, then he put his fingers through her shorts and fondled her vagina. After that, he told her to go into a bedroom and lie on the mattress. He told her to remove her shorts, which she did, then he lay on top of her and sexually penetrated her by inserting his penis into her vagina.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

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 very sorry for what I have done. I paid compensation of K1,000.00 and shell money worth K100.00. I thought that my case would end there. I went to my mother’s place trying to further my education. I got married and had a son. He is one year old, but there has been a bride price problem. I am unable to meet the in-laws’ demands so I came back to Kimbe, then I heard my name on the tok save on the radio. I did not run away. I was cooperating with the court and somehow ended up in custody. I ask for mercy and probation.

OTHER MATTERS OF FACT

As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that he has paid some compensation and that he did not deliberately abscond.

PRE-SENTENCE REPORT

Timothy Bipi is 22 years old. His parents are from Kulelukum in the Maprik district of East Sepik Province. He was born and raised in West New Britain, on his parents’ oil palm block at Kapore. He is the last born child in a family of five. He presently lives with his parents who are strongly supportive of him, however they acknowledge that he has brought shame to the family.

He got married in 2006 in the East Sepik. His wife and child are still there. He is educated to grade 8 and would like to continue his education if given the chance. He has never been formally employed. He survives financially by getting a share of the oil palm harvest. His health is OK. He has been an active member of the Catholic Youth Group at Kapore. His community record is sound. The local ward member and Village Court Magistrate were interviewed and did not comment adversely on him.

The most significant part of the report is the record of the interviews with the victims and their parents. The girls are now aged 14 and 16. They still feel shame and embarrassment over what the offender did to them. It has affected their schooling. Neither of them is interested in further compensation. They just want to see him punished. The attitude of their parents is the same. The father said that the family has experienced frustration, stress and embarrassment for seven years. The mother, who is a schoolteacher, said she is still broken-hearted over what happened to her daughters and she and her students have suffered too. She has not been performing as a teacher to the best of her ability. She wants the court to severely punish the offender. She wants no more compensation as what happened will continue to torment the family.

The report concludes that Timothy Bipi appears to have an attitude problem that needs to be addressed through counselling. The crimes he committed have had a very great impact on the lives of the victims and their family. There is no strong recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Kari urged the court must take into account the guilty pleas, which are very significant in this case as the offender has saved the victims the stress and embarrassment that would have been caused if they had been required to come to court and give evidence. A sentence of no more than 3 years was warranted for count 1 and 5 to 7 years for count 2, he submitted.

SUBMISSIONS BY THE STATE

Mr Popeu highlighted the tender age of the victims. Although the offences were committed seven years ago, they are still young girls and it is evident from the pre-sentence report that they are still suffering from what the offender did to them. A sentence of 3 years for count 1 is warranted and 10 years for count 2; and the sentences should be served cumulatively, he submitted.

DECISION MAKING PROCESS

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

- step 1: what is the maximum penalty for each offence?
- step 2: what is the starting point for each offence?
- step 3: what sentences have been imposed for equivalent offences?
- step 4: what is the head sentence for each offence?
- step 5: should the sentences be served concurrently or cumulatively?
- step 6: what is the effect of the totality principle?
- step 7: should the pre-sentence period in custody be deducted?
- step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

The offences were committed in 2002, prior to the commencement of the present child sex offence provisions of the Criminal Code. The maximum penalty for each offence is the lesser of the maximum penalties available under the present law and the equivalent provision in the old law (The State v John Ritsi Kutetoa (2005) N2814).

For count 1, the maximum penalty under Section 229B(1)(a) and (4) is 12 years imprisonment. Under the equivalent provision of the old law (the former Section 217 (indecent treatment of girls under 16)) the maximum penalty was 5 years. Therefore the maximum in this case is 5 years.

For count 2, the maximum penalty under Section 229(1) and (2) is life imprisonment. The equivalent provision of the old law (the former Section 213 (defilement of girls under 12)) also provided for life imprisonment, so that is the maximum penalty in this case.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

For count 1, I will use the middle of the available range: 30 months imprisonment. For count 2, given that the maximum penalty is life imprisonment, 20 years imprisonment is a useful starting point.

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

For count 1, sexual touching, sentences have tended to fall within the range of three to six years imprisonment. Examples are shown in table 1.

TABLE 1: RECENT SENTENCES FOR SEXUAL TOUCHING

No	Case	Details	Sentence	
1	The State v Paul Nelson (2005) N2844, Cannings J, Kimbe	Guilty plea – offender aged 65 – victim a 12-year-old girl – touching of vagina with fingers.	3 years	
2	The State v A Juvenile, "IO" (2005) CR No 1166 of 2004, Mogish J, Waigani	Trial – offender aged 15 – victim a 6 year-old girl – offender rubbed his penis against victim’s vagina.	4 years 
	
3	The State v Kagewa Tanang (2005) N2941, Kirriwom J, Finschhafen	Guilty plea – offender aged 41 – victim a 10-year-old girl – touching of vagina with fingers and attempted penetration of vagina with penis and rubbing of penis on vagina.	6 years
	
4	The State v Thomas Tukaliu (2006) N3026, Lenalia J, Kokopo	Guilty plea on two counts – offender an adult male – victim a 10-year-old girl – touching of vagina with fingers.	5 years
	
5	The State v William Patangala (2006) N3027, Lenalia J, Kokopo	Guilty plea – offender an adult male – victim a 14-year-old girl – fondling of breasts and sucking of nipples.	5 years

For count 2, sexual penetration, the sentences have been much higher. Examples of sentences I have imposed are shown in table 2. 

TABLE 2: SENTENCES FOR ENGAGING IN SEXUAL PENETRATION WITH A CHILD UNDER 16

No	Case	Details	Sentence	
1	The State v Biason Benson Samson (2005) N2799, Kimbe	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 13 – lack of consent – no aggravated physical violence – offender cooperated with police.	5 years	
2	The State v George Taunde (2005) N2807, Buka	Guilty plea – offender aged 33 at time of offence – victim, a girl, aged 13 – uncle/niece relationship – lack of consent.	10 years	
3	The State v John Ritsi Kutetoa (2005) N2814, Buka	Guilty plea – offender aged 39 at time of offence – victim a girl, aged 10 – stepfather/stepdaughter relationship – lack of consent – physical injury caused to child.	17 years	
4	The State v Willie Dominic (2005) N2938, Madang	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 14 –– no compensation attempted.	4 years	
5	The State v Ian Unawing CR No 392/2005, 19.08.05, Bialla	Guilty plea – offender aged 26 at time of offence – victim, a girl, aged 13 –offender cooperated with police – no compensation attempted.	8 years	
6	The State v Johnson Roman CR No 1924/2005, 23.03.07, Kimbe	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 15 – no aggravated physical violence – no compensation attempted.	5 years	
7	The State v Charles Rome CR No 502/2007, 13.07.07, Kimbe	Guilty plea – offender aged 31 – victim, a boy, aged 10 – no aggravated violence – relationship of trust – no compensation attempted.	12 years	
8	The State v Paul Gule CR No 686/2006, 24.08.07, Kimbe	Guilty plea – offender aged 60 – victim, a girl, aged 11 – no aggravated violence – no compensation attempted.	8 years	
9	The State v Sawan Raumo CR No 876/2007, 18.09.07, Buka	Guilty plea – offender aged 25 – victim, a girl, aged 6 – no aggravated violence – digital penetration – no compensation attempted.	10 years	
10	The State v Francis Guandi Borie CR No 289/2007, 16.10.07, Madang	Guilty plea – offender aged 35 – victim, a girl, aged 11 – no aggravated violence – penile penetration – no compensation attempted.	10 years	
11	The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09, Kimbe	Guilty plea – offender aged 15 at time of offence, aged 22 at time of sentence – victim a five year old girl – penile penetration.	7 years	

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

The offender is being sentenced for two offences. The court must therefore arrive at a notional sentence for each offence before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

Count 1: sexual touching

Comparing this case with the cases shown in table 1 and bearing in mind that the maximum in this case is only 5 years imprisonment compared to the maximum in those other cases being 7 or 12 years imprisonment, I will impose a sentence of 2 years imprisonment.

Count 2: sexual penetration

As the maximum is life imprisonment, the discretion available to the court is very wide. 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.

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 victim? No. The offender was aged 15 and the complainant 9, an age gap of 6 years.

2. Is the victim not far under the age of 16 years? No.

3. Was there consent? No.

4. Was the form of penetration other than penile penetration? No.

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 victim? Yes.

7. Did the incident have only a minimal impact on the child? No. The pre-sentence report shows that the emotional scar is severe, adverse and permanent.

8. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? No. The offender was living in the victim’s family home and was like a big brother to her.

9. Was it an isolated incident? Yes.

10. Did the offender give himself up after the incident? Neutral.

11. Did the offender cooperate with the police in their investigations? Neutral.

12. Has the offender done anything tangible towards repairing his wrong? Yes, some compensation has been paid.

13. Has the offender not caused further trouble to the victim or her family since the incident? Yes.

14. Has the offender pleaded guilty? Yes.

15. Has the offender genuinely expressed remorse? Neutral.

16. Is this his first offence? Yes.

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he was a juvenile at the time.

To recap, mitigating factors are:

- No 5 – no weapon or aggravated violence;
- No 6 – no physical injury;
- No 9 – isolated incident;
- No 12 – compensation;
- No 13 – no further trouble;
- No 14 – pleaded guilty;
- No 16 – first-time offender;
- No 17 – juvenile offender.

Aggravating factors are:

- No 1 – large age gap;
- No 2 – tender age of victim;
- No 3 – no consent;
- No 4 – penile penetration;
- No 7 – severe impact on victim;
- No 8 – breach of trust.

There are eight mitigating factors and six aggravating factors. The sentence must be under the starting point of 20 years.

Apart from the guilty plea, the strongest mitigating factor is that the offender was aged only 15 at the time of the offence. This means that the sentence will be well under the starting point. However, his age will not allow him to escape a severe penalty for what he has done. Boys of that age are at the stage of their lives where the community expects them to be sexually responsible. Many fulfil that responsibility. Others, such as this offender, do not.

As for aggravating factors, the strongest are the emotional effect that this crime has had on the victim and her attitude and the attitude of her parents to the offender. There has been no forgiveness. They want no more compensation. They just want to see the offender punished.

This case has many similarities with a recent Kimbe case referred to in table 2, The State v David Kisiluvi Buso. The offender was a 15 year old boy when he committed the offence and the victim was a 5 year old girl. Unlike the present case, the girl’s parents had forgiven the offender and did not want to see him sent to jail. The sentence was 7 years imprisonment (though 3 years was suspended in view of the favourable pre-sentence report).

I think this case is slightly less serious than Buso, so using that case as a guide and taking into account all the mitigating and aggravating factors, the sentence I impose is 6 years imprisonment.

Total potential sentence

It is:	2 years (count 1) + 6 years (count 2) = 8 years	

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88).

Here, there were two different incidents and two different victims, so the sentences should be served cumulatively, a total of 8 years, subject to the totality principle.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

I now look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive.

The offender is now 22 years old. The victims want him punished severely. In all the circumstances I do not consider that 8 years would be excessive.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

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 which is 2 months.

STEP 8: SHOULD THE SENTENCE BE SUSPENDED?

This is another part of the decision making process where the attitude of the victims is very significant. The victims do not want to see the offender in their community for a long time. There is no strong recommendation in the pre-sentence report for probation, so I will not suspend any part of the sentence.

SENTENCE

Timothy Bipi, having been convicted of one count of sexual touching of a child under the age of 16 years contrary to Section 229B of the Criminal Code and one count of engaging in an act of penetration with a child under the age of 16 years contrary to Section 229A of the Criminal Code, is sentenced as follows:

Length of sentence imposed	8 years	
Pre-sentence period to be deducted	2 months 	
Resultant length of sentence to be served	7 years, 10 months	
Amount of sentence suspended	Nil	
Time to be served in custody	7 years, 10 months	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.
_________________________

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