N4891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 269 OF 2012

THE STATE

V

DAVID MATANU

Buka: Kawi J
2012: 16th October

CRIMINAL LAW – Indictable offence – Criminal Code section 229A(1) – Sexual Penetration of a child under 12 years of age –accused pleaded guilty to one count of sexual Penetration - on presentation of Indictment-Accused used fingers to touch and penetrate Vagina of a young girl –girl under 16 years of age -- in fact girl was 12 years old at the time of sexual Penetration Sentencing factors to be taken into account – case of digital penetration as opposed to penile penetration.

Facts

The accused is a serving Policeman based here in Buka Island, Autonomous Region of Bougainville. He was indicted on one count of sexual penetration contrary to section 229A (1) of the Criminal Code. He immediately pleaded guilty to the charge in indictment and the facts alleged against him on the basis of which he was charged and pleaded guilty. 

Held: 

(1)	Sexual penetration of a girl who is 12 years old is a serious matter and warrants a custodial sentence. In the circumstances the accused should be given a deterrent sentence which should be punitive in nature.

(2)	Policemen should uphold the rule of law at all times. Transgressions and deviations in their application and conduct results in ordinary people mistrusting police in their enforcement of the law.

(3)	If the accused had wanted to pay compensation, to reconcile and make full restitution with the parents and family of the victim, then this should be done immediately before the accused is taken into custody. This would show that the accused is very genuine in his attempts at restitution and reconciliation.

Cases cited:

Counsel:

Mr. Francis Popeu, for the State
Mr. Michael August, for the Accused

DECISION ON SENTENCE

5th November, 2012

1. KAWI J: The accused David Matanu is from Tohatsi village, Haku here on Buka Island, in the Autonomous Region of Bougainville. He is charged with one count of Sexual Penetration proffered under Section 229A(1) of the Criminal Code. The State alleges that the accused under the pretext of attending to a Law and Order complaint went up to his house and met the victim. He spoke to her inside his house and while talking he pushed his fingers under her skirt and touched her vagina. Having touched her vagina, and he went further and pushed his fingers and penetrated the vagina of the victim. At that time the victim, a Melita Bisai was a child under 16 years. She was 12 years old and the alleged offence was committed in the house of the accused at Kubu here on the Island of Buka on the 4th day of October 2011. 

2. The charge was brought against the accused under section 229A(1) which is stated in this terms:

Section 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 subsection 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 1is guilty of a crime, and is liable, subject to section 19,to imprisonment for life. 
 
In this case it is accepted that the child, Melita Bisai who was the victim of the sexual penetration here is 12 years at the time of the offence.

ISSUES

3. The first issue for determination is was there sexual penetration? The second issue for determination by this court is what is the sentence that the court should impose upon the accused?

4. In determining these issues, it must be noted from the outset that sentencing is not an exact mathematical science where fixed formulas are applied to find fixed problems to find fixed answers. Rather sentencing is a discretionary process guided by several legal principles to achieve one or more objectives of sentencing. To arrive at these objectives, the court is usually guided by quite a number of legal principles. And one of the principles I take into account is that I must take into account mitigating factors operating in favor of the accused and the aggravating factors operating against an accused person. Some aggravating factors may be mildly aggravating while others may be strongly aggravating. The same goes for mitigating factors.

ARRAIGNMENT

5. When the accused was arraigned, he pleaded guilty and I entered a provisional plea of guilty subject to me reading the depositions and confirming the State allegations. Having confirmed the allegations by the State, I then confirmed the plea to a full guilty plea. The accused was then convicted as charged and he became a full prisoner of the state. 

ALLOCUTUS

6. When the allocutus was administered upon him, the accused expressed sorrow and begged the court for mercy and leniency in sentencing him. He pleaded the court to give him a suspended sentence so that he can go home and pay compensation to the family and relatives of the victim as well as to reconcile with them. He told the court that the compensation he was proposing to pay consisted of three live pigs, food stuff from both the garden and the shops. In addition he told the court that he will pay K700.00 in cash. At the time when the plea was taken, the accused has not made any payments for compensation.

SENTENCING PROCESS

7. Sentencing is not an exact science. It is a discretionary process guided by some principles of law. In considering an appropriate penalty to be imposed upon you, I will take into account some of the following factors:

(1)	Your antecedent report
(2)	Your statement in allocotus
(3)	Your mitigating and aggravating factors
(4)	The Submission of defence and prosecution counsels;
(5)	Sentencing guidelines and tariffs for murder cases.
(6)	Those guidelines are applied to this case and a head sentence is then fixed.
(7)	Consideration is given to whether part or whole of the head sentence should be suspended or not.

CLASSIFICATION OF YOUR OFFENCE

8. I will now consider whether your case can be categorized as a case belonging to the worst case category or whether you as the offender can be described as a worst offender. The offence of Sexual Penetration which you committed is a very serious offence as it involves sexual exploitation of women and very young children. I cannot describe you as a serial offender nor can I describe your case as belonging to the worst category of cases. In my view whilst this is a one off sexual penetration, I note that no weapons were used to threaten the victim nor were weapons used to harm or injure her to achieve the desired purpose nor was she forced to submit herself to the accused. I also accept the prisoner's submission that no venereal diseases or other sexually transmitted infections were passed onto the victim by the accused. This is confirmed by the medical report which was produced by the State. The prisoner did ask for a suspended sentence so that he will go back to his village and pay compensation to the victim and his family. I will therefore be very reluctant to accede to your request made in allocutus to release you to your community, to reconcile and make peace with the relatives of the family and relatives of the deceased. This is a case of digital penetration and not penile penetration. 

ANTECEDENT REPORT

9. After your guilty plea was accepted by the court, the learned State Prosecutor informed the Court that the State does not allege any prior convictions against you. This simply means that you have never been in conflict with the law before and you have never been before a court of law before the commission of this offence.

MITIGATING FACTORS

10. The Supreme Court in the Steven Loke Ume Case, described mitigating factors in this way:

 "As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender, guilty plea, early confession to police, remorse, poor health and restitution or compensation.

11. The Supreme Court went on further to say that;

"there is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances, relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences as with all serious crimes of violence, the gravity of the offence determined in light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant": John Elipa Kalabus –v- The State [1988]PNGLR 19.

12. Operating in favor of the accused, are the following factors:

The prisoner is a first time offender.
He expressed remorse and begged the court's mercy when the allocutus was administered.
He is a member of the Catholic Faith.
He was a good law abiding citizen before the commission of this senseless offence.
The prisoner is an educated man. At the time of committing this offence the accused was employed as a Policeman and stationed at the Buka police station. He was attached to the criminal Investigation Division (CID). He was a policeman for 12 years and had a very clean and unblemished record. 

SUBMISSIONS BY THE PRISONER

13. Mr. August for the prisoner submitted that you are in your late 30s. You are married with a wife and three children. Of the three children, one is a female aged three years and the other two are infant boys who are only one month old. You clearly have a big parental responsibility to maintain your wife and the children from that union. These three children are all infants and with you serving a custodial sentence, your wife will have a hard time tending to the needs of the family.

SUBMISSIONS BY THE STATE

14. Mr. Popeu for the State argued that sexual penetration of any sort was a serious matter, especially in cases such as this where young children are the victims. For that reason the penalty regime prescribes the penalty at no less than 25 years jail to life imprisonment. In this case the perpetrator was no ordinary man, he was a Policeman, responsible for enforcing law. People look up to Policeman when they have a complaint to make. In such cases, the policeman and the complainant may be said to be in a relationship of trust, authority, and dependency. The sexual penetration in this case consisted of the act of pushing one's fingers into the vagina of a young 12 year old girl as opposed to a penile penetration. He submitted that penile penetration was far more serious than digital penetration on a comparative basis. 

FACTORS FOR AND AGAINST YOU

15. I have already outlined the factors operating in your favour. I now consider the following factors operate against you:

a)	You did not respect those who came to you for assistance, in this case it was a young female child. But in this case you decided to sexually exploit the child for your own satisfaction,

b)	You sexually penetrated her while in the comfort and safety of your house.

c)	You tried to conceal your actions but you were caught and reported. You never made any attempts at reconciliation with the victim and her parents and family .If you had wanted to reconcile with the victim and her family, you would have done something tangible. Usually taking tangible actions like making a payment of compensation, to the victim of your action would demonstrate how genuine you are in saying sorry for your crime and your guilt. But whether that saying sorry is a genuine sorry is something I am not prepared to accept. The fact that you are yet to pay compensation proves to me that you are not too genuine in saying sorry from your heart. This is a big factor that will be used against you in determining your eventual sentence. 

16. Taking into account all factors for and against you and balancing them, I find that those against you tip the scale. However this alone does not render your case as falling within the worst offence category. Neither can it be taken as a criteria to brand you as a worst offender.

SENTENCING GUIDELINES

17. It is now a well settled principle of law that the courts will only consider imposing the maximum penalty for those cases categorized as falling in the "worst offence" category, and the offenders being classified as worst offenders or high risk offenders. (See Goli Golu v The State [1979] PNGLR 563. I will now pose to consider the two issues I posed above. Was there sexual penetration of the vagina in this case? And the second issue is that of sentencing is dependent to a large extent on my finding and answers to the first issue. Was there sexual penetration of the vagina? Sexual penetration is adequately defined by section 6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 as follows:

"6. SEXUAL PENETRATION

When the expression "Sexual Penetration" or "sexually penetrates" are used in the definition of an offence, so far as it regards that element of it, is complete where there is-
 
(a)	The introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person;

(b)	 The introduction, to any extent, by a person of an object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith or for medical or hygienic purposes".

18. In this case there is evidence which I accept that the accused used his fingers to push them into and thereby penetrating the vagina of the young victim. And I also accept that the victim was of a very young tender age. The accused penetrated her vagina for sexual purposes. Penetrating the victim's vagina in this case was not done for medical reasons. It was done for pleasure only. The young tender age of the victim is another factor to be taken into account in sentencing apart from considering all factors for and against the accused. And I consider and fix a jail term of 13 years to be served at the Bekut jail outside Buka town. Taking into account the unblemished years of the accused as a policeman, the fact that the accused is a family man, with three infant children, I now exercise my discretion pursuant to section 19 of the Criminal Code and suspend seven years from the head sentence of 13 years. This will leave you with the remaining balance of six years (6 ) to be served at Kerevat jail outside Rabaul. There will be no further allowance made for time spent in pre trial custody as in my view that is taken care of by the 7 years suspended from the head sentence. The six years will be spent in light labour. 

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused