N4648

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 265 OF 2009

THE STATE

V

JESSIE CHADROL

Lae: Batari J

2011: 11 April
: 23 May

CRIMINAL LAW – sentence - sexual penetration of girl under 16 years – accused first offender aged 17 years – victim aged 13 years – boy/girl relationship – plea - sentencing principles – Appropriate approach to sentencing – use of range instead of starting point as guide. 

CRIMINAL LAW – sentence – particular offence - sentencing policy - sexual penetration of girl under 16 years – change in legislation increasing seriousness of offence and penalty – legislative intent not to punish every act of sexual penetration – effect on sentencing discretion - sentence of six years imprisonment wholly suspended appropriate - Criminal Code s292A(1).

Facts

The offender pleaded guilty to one count of sexual penetration of a girl under the age of sixteen, she being his girl friend,13 years of age and the offender being 17 years of age at the time of the offence. The sexual penetration was consensual.

Held

1.	The use of a sentencing 'scale' or 'range' as a guide in sentencing is preferred to a starting point because 'starting points' give the impression of an inflexible sentencing option;

2.	Because there are legal excuses or defences available in some factual circumstances to sexual intercourse with a girl under the age or 12, or 14 years of age, the seriousness of the offence and the aim to protect young children should not be the overriding factors in sentencing sexual penetration cases;

3.	In the circumstances of the case a sentence of 6 years imprisonment, wholly suspended on probation terms is appropriate.

Cases Cited

 Stanley Sabiu v. The State (2007) SC866
John Elipas Kalabus v The State [1989] PNGLR 195
Tau Jim Anis v The State (2000) SC642
Rex Lialu v The State [1990] PNGLR 487
The State v. Pennias Mokei (No 2) (2004) N2635
The State v. Ndakum Pu-Uh (2005) N2949
The State v Rex Lialu [1988–89] PNGLR
The State v Polin Pochalon Lopai [1988-89] PNGLR 48

Counsel

H. Simon, for the State
L. Vava, Jnr., for the Accused

SENTENCE

23 May, 2011

1. BATARI J: Jessie Chandrol will be sentenced on his plea of guilty to sexual penetration of a 13 year old girl.

Background

2. 	The agreed facts which also form the basis for sentence are brief. Jessie and the complainant of Igam Defence Force Barracks have been friends since 2006. Their relationship led to sexual intercourse in January 2007. The complainant was then aged 13 ½ years and attending Igam Primary School. Jessie was 17 and attending a TAFE course at Coronation College, Lae. Attempts by parents to dissuade them failed so; the matter was referred to the police resulting in this case. 

The Offence of Sexual Penetration 

3. 	Section 229A of the Criminal Code creates the offence of sexual penetration with a child under 16 years. It re-enacts and gives a combined effect to the now repealed provisions of s.213 (Defilement of girls under 12) and s.216 (Defilement of girls under 16) of the Criminal Code. The new law is non-gender specific. It also divides the offence into "simple" and "aggravated" acts of sexual penetration. 

4.	The two categories of sexual penetration are set out under s.229A (1),(2) and (3) as follows: 

"(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."

(2) 	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) 	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

5. 	Cases involving victims over 12 years where there is no breach of trust or the offence does not amount to rape come under this provision. If the victim is under 12 years or the offence involved breach of an existing relationship of trust, authority or dependency, the maximum penalty is life imprisonment.
 
6.	Prior to the amendment, the maximum penalty for what was then the offence of "unlawful carnal knowledge of a girl under 16 years" was 5 years and life imprisonment if the victim is less than 12 years. 

Effect of the new law on sexual offences against children

7.	It is relevant to make some observation on what I consider a troublesome task that confronts a sentencing judge under the new law.

8.	By repealing and replacing s213 and s216 of the Criminal Code with s229A of the Code as amended, Parliament clearly intended to provide for a more serious offence of sexual penetration against children. In effect, the scheme of the whole amendment is clearly to give children greater protection by raising the degree of seriousness for all kinds and manner of sexual violations and by treating sexual offences against children much more serious than had been the case in the past. 

9.	Hence, the offence of sexual penetration is now much more serious with increased maximum penalty provisions. And it has been made gender neutral so that it has a wider application. The prominence given to the offence is also apparent from the substitution of the term, "unlawful carnal knowledge" with the more defining term, "sexual penetration." 

10.	However, in my view, the scheme of the new law is clearly not to punish every act of sexual penetration involving children. This intention is evident from exemption of certain classes of child sexuality from criminal responsibility. For instance, s.229F (b) permits sexual penetration between a child over 12 years with a person who is no more than two years older than the child where that person has no existing relationship of trust, authority or dependency with the child and where elements of rape under ss. 347 and 347A are not present.

11.	Section 229G which provides for a statutory defence of marriage is another provision that exempts prosecution under the Act. An accused person will escape criminal liability if he can show that he is married to the child who is 14 years or older. In the third exclusion provision under s.229F (a), the accused person can avoid legal responsibility if he believed on reasonable grounds at the time of the offence that, the child was 16 years or older or (b) the child was 12 years or older and the accused no more than two years older than the victim. 

12.	The law in permitting a child between 12 years and 16 years sexual freedom is logical. It recognizes child psychology and innocence which assumes lack of adult maturity to know and to make informed decisions on his or her sexual behavior. This presumes that a child in that age group still lacks the moral aptitude and mental capacity of an adult to fully appreciate the legal and social implications and consequences of his or her conduct.

13.	Conversely, it is paradoxical that a girl can get married at 14 years. This assumes that a 14 year old girl has the adult maturity, mental capacity and physical ability to appreciate and partake in adult ways and activities. Be it as it may, the Court must interpret and apply the law as it stands. 

Practical considerations on application of new Law

 14.	The enforcement of this offence can present some real practical difficulty from a conceivable view that, the law makes sexual penetration of a child under 16 years a very serious crime at the same time as it recognizes and gives validity to child promiscuity and marriage. In my view, the attribute of "seriousness" of the offence lapses into insignificance if a child over 12 years can lawfully engage in sexual activity and lawful to wed at 14 years. 

15.	What this means in practice is that, if A and B engage in consensus sexual penetration with two 14 year olds and unlike B, A is married to his partner; B will be severely punished whereas A will be excused. In another scenario where A is two years older than his victim, he will be excused from criminal liability whereas B would not. If convicted, B will be severely punished because of the purported seriousness of the offence. 

16.	Hence, the seriousness of the offence and the aim to protect young children should not alone, be the overriding factors in sentencing sexual penetration cases. It is also my firm view that, there can be no real justice and fairness if for technical reasons in the examples given; B must be heavily punished for his crime as well as deter others while A gets off scot-free by operation of the same law. 

17.	The sentence of the Court I am about to impose is considered and arrived at from that perspective. And as an aid to this difficult task of sentencing the prisoner, I am ably assisted from comprehensive pre-sentence report and means assessment report the CBC Office has compiled. The reports will be read into the records. 

Sentencing Policy, Principles and Guidelines

18.	Except for offences with mandatory minimum or maximum penalties, the court has unfettered discretion to impose a term of years colloquially phrased, "appropriate sentence in all the circumstances of the case." The term need not be exact or arrived at with scientific precision. The Court will have regard to basic principles of sentencing that, each case must be sentenced on its own facts and that the maximum is reserved for the worst type case. In Stanley Sabiu v The State (2007) SC866 the Supreme Court after reviewing suggested guidelines for sexual penetration cases in the National Court cases of The State v. Pennias Mokei (No 2) (2004) N2635 and The State v. Ndakum Pu-Uh (2005) N2949, said: 

"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him."

19.	See, John Kalabus v The State [1989] PNGLR 195 for the proposition that, the maximum sentence is reserved for the worse type case of a particular crime. 

20.	To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. The use of a sentencing 'scale' or 'range' as a guide in this exercise is preferred because 'starting points' gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range. 
 
21.	For category one, a sexual penetration offence charged under s. 229A (1), the sentencing range or bracket may be from 3 years at the lower end to 15 years at the upper end (15 years to 25 years for worst or near worst type case). The seriousness of the offence and personal circumstances of the prisoner from both latent and apparent facts and whether the case is contested or uncontested will decide where the case falls within the suggested sentencing range. 

22.	A sentence in the lower end of the scale in this category will be justified in an uncontested case with substantial mitigating factors like; very young age or advanced age or medical state of the offender; little age difference and consensual nature of the offence. A term of imprisonment in the upper range may be justified where circumstances of aggravation were present and there is no mitigating factor. 

23.	Where the victim is under 12 years or circumstances of aggravation like, extreme young age of the victim or breach of trust or persistent sexual penetration are present, a starting point of 15 years has been suggested by the Supreme Court in Stanley Sabiu v. The State (supra). 

24.	In my view, the proper approach is to consider a term within the range of sentences for aggravated sexual penetration. The range will be slightly higher than that for category one offences. I suggest a general range of 7 years to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life jail may be justified. 

25.	Relevant factors to be taken into account as set out by Cannings J in The State v. Pennias Mokei (supra) and approved by the Supreme Court in Stanley Sabiu v. The State (supra) is a useful guide for this approach. 

26.	I have had regard to the case of Stanley Sabiu v. The State (supra) and note where the Supreme Court having reviewed the National Court cases of, The State v Peter Lare (2004) N2557, The State v Pennias Mokei (No 2) (2004) N2635, The State v Eddie Trosty, (2004) N2681, The State v Kemai Lumou (2004) N2684; The State v Biason Benson Samson (2005) N2799; The State v Thomas Angup (2005) N2830, The State v Binga Thomas (2005) N2828, The State v.Kutetoa (2005) N2807, The State v. Alois CR 236/05 Kokopo, The State v. George Taunde (2005) N2807, The State v. Ndakum Pu-Uh (2005) N2949 and The State v. Ella Yasu (2007) CR 961/06, in respect of s.229A Criminal Code, and said:
 
"Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years."

27.	With respect, the National Court cases referred do not represent the wider sentencing tendency of the courts. The sentences in respect of victims between 13 and 15 years of age also appear to represent huge leaps irrespective of the settled principle that an increase of the sentencing tariff must be done progressively and not by leaps and bounds: Tau Jim Anis v The State (2000) SC642. 

28.	A review of sentences in the repealed s.216 cases would assist in the formulation of sentencing guide for s.229A (1) cases. No such review that I know was ever undertaken by the Supreme Court. Further, the penalty for sexual penetration with a child under the age of 16 years in breach of trust now has the same penalty as for sexual penetration of a child under the age of 12. They both carry the maximum sentence of life imprisonment.

29.	So, there must some correlation for the sentences imposed for those two offences. This can be amply achieved by review of sentences in the repealed s.213 cases in the formulation of sentencing guide for the new s.229A (2) and (3) cases.

30.	The short history of sentencing under the new Act shows instant huge leaps in the terms of sentences imposed. With respect, this was done with no or little consideration for progressive increases for the two separate categories of sexual penetration offences. Nor were the sentences imposed supported by or formulated with aid of a sentencing pattern for the repealed s.213 cases (unlawful carnal knowledge of girl under 12). 

31. The enthusiasm with which astronomical sentences was imposed is no doubt in response to the increased penalties in the new law. This has, with respect, unfortunately led to a seriously flawed sentencing guide. It has also resulted in an unlikely sentencing policy where the sentencing range for sexual penetration offences appears on par with and possibly above and beyond the range for murder. 

32.	It is suggested and I agree that there should be some correlation between the sentences imposed for the offences rape, robbery and murder as they all carry the maximum sentence of life imprisonment: The State v Binga Thomas (2005) N2828.

33.	Sentences for murder and manslaughter cases should however be higher than robbery and sexual offences. I agree entirely with Bredmeyer J who, when comparing sentencing tariffs for manslaughter and rape cases in The State v Polin Pochalon Lopai [1988-89] PNGLR 48 held at p.49:

"... the tariff for manslaughter should be fixed slightly higher than for rape because death is a more serious consequence than the injury and trauma suffered in a rape ..." 

34.	In The State v Rex Lialu [1988–89] PNGLR 449 Amet J (then) also suggested that sentences for murder should be higher than the sentences for rape as death is a more serious consequence than rape, at p. 452:

"I consider that our sentences for manslaughter must reflect the serious view which the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community's view against unwanton (sic) killing. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery."

35.	His Honour imposed 6½ years for manslaughter. The sentence was varied and reduced by the Supreme Court on appeal to 4½ years in Rex Lialu v The State [1990] PNGLR 487.

Present Case

36.	In this case, the prisoner is indicted under s. 229A (1). No circumstance of aggravation is charged and the State does not allege or rely on any aggravating factor. Hence, this is a "simple" offence of sexual penetration. I have determined that the circumstances of this case do not call for a lengthy period of imprisonment in the middle or near the maximum term. In my view, this case is nowhere near the most serious or worst type of sexual penetration cases that the Courts and the general community are becoming all too familiar with these days.

Circumstances of the offence 

37.	The facts of the case are fairly summed up earlier. The relationship between the 13 year victim and the 17 year old prisoner had continued unabated from the first act of sexual contact for some 6 months before her parents intervened. Despite repeated attempts to settle the matter internally and as between the parents, the relationship persisted resulting in the arrest of Jessie 2 years after the incident. 

Circumstances of the prisoner
 
38.	Jessie is now 21 years and employed. His other personal circumstances and attributes are set out in the pre-sentence report. It is unnecessary to repeat them. The assessment and recommendations in the pre-sentence report are in his favour. In essence, Jessie has a good personal and family background; he is well educated and is currently in pursuit of productive life through formal employment. 
 
39.	His plea of guilty supported by his expression of remorse have saved the Court and the State time and expenses to mount a trial in which the complainant may well have been forced to give evidence possibly against her own conscience. This is because her intimate relationship with Jessie appears to remain strong. She is now 17 years old. He has no prior conviction and this is his first offence.

40.	The offence arose out of a girl/boy relationship which had persisted despite its unlawfulness and parental disapproval. The community appeared tolerant to the relationship between the two young single persons and there is a good prospect of the relationship continuing into marriage. Hence, the serious culpability of the offence is reduced.

41.	A term of imprisonment must be imposed to reflect disapproval of the court for this type of behavior by young people. I propose to impose a term that will serve both the deterrent and punitive aspects of punishment.

42.	I also consider that Jessie is not a repeat or violent offender. His custodial period would have shown him that, imprisonment is not a place for young men like him. Too, based on the strength of the presentence reports, Jessie can be usefully punished with a suspended sentence.

43.	Jessie is sentenced to 6 years imprisonment. The whole term is suspended and that he be placed on probation on the usual terms under the Probation Act with further orders that:

1)	He performs 1000 hours of community work at a worksite to be nominated and supervised by the CBC Office;

2)	He keeps the peace and be of good behavior at times;

3)	Within 2 weeks of his release on Probation, to join his local church youth group and to participate in all its activities;

4)	If the occasion arises for payment of compensation, the amount be set at no more than K5,000;

5)	The order in paragraph 4 applies only during the period of probation and any compensation agreed on must be sanctioned by the court upon a report from the CBC office, and upon hearing from the parties including the probationer;

6)	The Probation Officer must file a report on the responses and progress of the probationer every quarter with the first report due on 23rd August 2011. 

______________________________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence