N5404

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 992 OF 2009

THE STATE

-v-

JOHN KATI

Mendi: Kassman J
2012: 12th February & 17th April

CRIMINAL LAW – Sentence – conviction after trial – indictable offence – Criminal Code Act, Division IV.2A - Sexual Offences Against Children, Section 229A(1), engaging in an act of sexual penetration of a girl under the age of 16 years – conviction after trial - factors relevant to sentence – application of factors – assessment of sentence – decision on sentence.

Cases Cited:
Papua New Guinea cases

The State –v- James Yali (2006) N2989 
Maima v. Sma [1972] PNGLR 49
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Titus Soumi (2005) N2809
The State v Kemai Lumou 
Simon Kama v The State (2004) SC740
The State v Ndrakum Pu-Uh (2005) N2949
The State v Tiama Esrom (2006) N3054 

Overseas cases cited:

R. v. Harrison (1909) 2 Cr. App. R. 94

Counsel

Joe Waine, for the State
Luke Siminji, for the Offender

SENTENCE

17th April, 2012 

1. KASSMAN J: Introduction: This is a decision on sentence for a man convicted of engaging in an act of sexual penetration with a child under the age of 16 years.

Background

2. On 12 December 2011, the offender John Kati was convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years. The Court found John Kati engaged in acts of sexual intercourse with the victim on three occasions in or about January and February 2009. All such incidents took place in Mendi in a room at the rear of the offender's place of work at the Mendi General Hospital. At that time, the victim was living with her mother and father within the vicinity of the Mendi General Hospital and John Kati was employed as a security guard at the Mendi General Hospital. On each occasion, John Kati lured the victim with money. John Kati would show her some money and tell her to follow him. He walked ahead and she followed him into the hospital yard where he lived at the rear of the hospital. In her own evidence given in tok pisin and interpreted into english, the victim said they entered a small room and he "lay me down on a dirty mattress, he removed my clothes, he removed his clothes and then he slept on top of me. He had sex with me. I felt pain and he told me not to tell my mum, if I tell my mum, he will not give me money." On the last occasion, she was taken to the hospital because she was bleeding. Dr Nolpi Tawang of the Mendi General Hospital gave evidence and presented his medical report dated 19 February 2009. Dr Tawang confirmed that the victim was examined by Dr Raymond Paivut. The court found that medical evidence confirmed the age of the victim to be 14 years at the time of the offence and that the victim had been sexually penetrated and that the last sexual activity took place on 16 February 2009. 

Relevant Law

3. Section 229A(1) of the Criminal Code Act provides:

"(1) A person who engages in an act of sexual penetration with a child under the age of 16 is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for 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."

4. In this case, Subsections (2) and (3) are not applicable as, at the time of the offence, the victim Rebecca Kangap was not under the age of 12 and there was no existing relationship of trust, authority or dependency between the offender and the victim.

5. The maximum penalty is as provided under Subsection (1) and that is imprisonment for a term not exceeding 25 years.
 
6. "The general principle is that the maximum punishment should be awarded only in the worst cases." This was said by Justice Prentice sitting as the Supreme Court of the Territory of Papua and New Guinea in Maima v. Sma [1972] PNGLR 49. His Honor quoted the principle applied as far back as the early nineteen hundreds in R. v. Harrison (1909) 2 Cr. App. R. 94. His Honor also said "The Court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate."

7. The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence and this power is provided under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)]. 

Antecedents

8. The offender has no prior convictions.

Allocutus

9. "I am sorry for what I did. The Court must have mercy on me." He then paused for an extended period and then continued. "They blame me for no reasons so I am sorry for this, the court must have mercy on me."

Submissions by Defence Counsel

10. Counsel handed up written submissions. John Kati was 45 years old at the time he committed the crimes. He is now 48 years old. He has no prior convictions. He is married with eight children though details were sketchy. On each occasion, John Kati lured the victim with promises of money in return for the sexual favors. There was no force used to achieve penetration and neither did he use any weapons. John Kati was never formally educated and lacked sophistication as demonstrated in the trial. His counsel suggested this showed his lack of appreciation of the society's abhorrence of his conduct and that such conduct is a serious crime under the laws of the country.

Submissions by State Counsel

11. Counsel for the State made oral submissions saying this is a very serious offence. The offender was found guilty after trial forcing the victim to re-live ordeal. There was a vast age difference, the offender being 45 years old and the victim 14 years old at the time the crime was committed. The offence is prevalent in the country. The offender demonstrated a lack of remorse for his crime. The victim suffered urinary tract infection.

12. Counsel subsequently filed written submissions. I have found both sets of submissions very helpful especially in gaining an understanding of the approaches to sentencing by the National Court particularly judgments of the court from around the years 2004 and 2005.

Other material

13. The prosecution did not present a victim impact statement. Section 21A of the Criminal Code makes provision for the preparation of such a report for the purpose of determining sentence. The report should describe the harm done to, or suffered by, the victim arising from the commission of the offence. That could describe both physical and emotional harm. 

14. Neither did the defence request a pre-sentence report normally prepared by the Community Based Corrections and Rehabilitation Service. This service is available and, in my time serving in Mendi over the last year, reports have normally been prepared within a month from a request being made following conviction.

15. Though it is desirable that such material be provided, it is not compulsory. I have chosen to proceed with determining sentence without such material.

Decision making process

16. I will follow the process adopted by Cannings J in The State v Biason Benson Samson (2005) N2799 in determining the appropriate penalty.

Step 1: What is the appropriate head sentence, in terms of years?
Step 2: Should all or part of the head sentence be suspended?
Step 3: If all or part of the head sentence is suspended, what conditions should be imposed?

Step 1: What is the appropriate head sentence?

17. I will also adopt the table of cases referred to by Cannings J in The State v Biason Benson Samson (2005) N2799, The State v George Taunde (2005) N2807 and The State v Titus Soumi (2005) N2809 and also by Lay J in The State v Ndrakum Pu-Uh (2005) N2949.

No	Case	Details	Sentence	
1	The State v Peter Lare, (2004) N2557 Kandakasi J, Goroka	Offender aged 40 charged with one count of sexual penetration – victim, a girl, aged 12 – offender was the girl's adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to victim – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years	
2	The State v PenniasMokei (No 2), (2004) N2635, Cannings J, Wewak	Offender aged 33 charged with one count of sexual penetration – victim, a girl, aged 13 – offender was the girl's uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with victim or family since commission of offence	15 years	
3	The State v Eddie Trosty, (2004) N2681,
Kandakasi J, Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – victim, a girl, aged 15 – victim was the offender's girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender	6 years	
4	The State v Kemai Lumou, (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – victim, a girl, aged 14 – offender was the girl's uncle – no consent – aggravated physical violence: used bush knife to threaten victim and sexual penetration was forceful – no evidence of physical injuries or infection of victim with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that the victim was his girlfriend, aged 17 and sex was consensual – pleaded not guilty; victim forced to relive crime – no evidence of offender saying sorry to victim and her relatives – no compensation attempted – first offender	
17 years	

18. I agree with the prosecution and fix the starting point at 15 years. This case in some respects is similar to the circumstances of the Biason Benson Samson and George Taunde cases which were also identified with the Pennias Mokei case. 

Relevant considerations

19. I will now determine whether to increase or decrease the head sentence or leave it at 15 years. I will also adopt the relevant considerations that were identified by Cannings J in the Biason Benson Samson case and the rationale for such method of analysis. 

"The relevant considerations are:

1.	Is there only a small age difference between the offender and the victim?
2.	Is the victim not far under the age of 16 years?
3.	Was there consent?
4.	Was there only one offender?
5.	Did the offender not use a threatening weapon and not use aggravated physical violence?
6.	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
7.	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?
8.	Was it an isolated incident?
9.	Did the offender give himself up after the incident?
10.	Did the offender cooperate with police in the investigations?
11.	Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace reconciliation ceremony, personally or publicly apologizing for what he did?
12.	Has the offender not cause further trouble to the victim or the victim's family since the incident?
13.	Has the offender pleaded guilty?
14.	Has the offender genuinely expressed remorse?
15.	Is this his first offence? 
16.	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
17.	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

"The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above 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.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence. The presence or absence of consent is very important. Absences of consent is not an element of the offence. So, as in Eddie Trosty's case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bushknife, as in Kemai Lumou's case) is used or if there is aggravated physical violence or physical injury caused to the victim. It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare's case where the offender was labeled a sexual predator.
Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered."

Application of considerations

1.	No there is a large age difference. The offender was 45 years and the victim14 years at the time of the crime, that being a difference of 31 years.
2.	No the victim was well under the age of 16 years.
3.	No there was no consent.
4.	Yes the offender acted alone, not in a group.
5.	Yes the offender did not use a threatening weapon and did not use aggravated physical violence.
6.	The medical report stated the victim suffered minor vaginal injuries and suffered bleeding on one occasion. The offender did pass on a sexually transmitted disease to the victim.
7.	Yes there was no relationship of trust, dependency or authority between the offender and the victim.
8.	No this was not an isolated incident as the offender had committed the offence on three occasions over a period of two months. 
9.	No the offender did not give himself up after the incident.
10.	No the offender did not cooperate with police in the investigations.
11.	No there is no evidence that the offender offered compensation to the victim or her family or of the offender engaging in a peace reconciliation ceremony. In fact the offender denied the charges and never saw the need to personally or publicly apologize for his wrongdoing. 
12.	Yes the offender has not caused further trouble to the victim or the victim's family since the incident.
13.	No the offender pleaded not guilty and put the victim to through the indignity of having to relive the ordeal in court before total strangers.
14.	No the offender did not genuinely express remorse.
15.	Yes this is the offender's first offence. 
16.	No the offender is not a youthful offender. He was 45 years old at the time he committed the crime. He is now 48 years old. 
17.	No there are no other circumstances of the incident or of the offender that warrant mitigation of the head sentence.

20. In my analysis, there are 11 aggravating and 5 mitigating considerations. The large difference in age was most alarming particularly considering the offender himself was a parent of young aged children and was expected to show greater compassion for a young and innocent girl. He repeated this despicable act on two other occasions playing on her vulnerability and coaxing her with promises of money. There is no indication he considered his actions as destructive let alone unlawful and it is arguable he would have continued his crimes if the victim's father had not noticed his daughter participating in gambling activity in the nearby market using the money given to her by the offender in return for her gratifying his sexual demands. 

21. Further, the offender put the victim through the distress and anxiety of a full trial. As Kandakasi J observed in The State v Kemai Lumou (2004) N2684 "… you denied the charge. That forced the victim, … to come and relive the crime you perpetrated against her. She was in that way forced to come into Court and describe your forceful acts of sexual intercourse with her. Given that people in our society do not freely talk about such things as sex, you put her under a lot of unnecessary pressure and shame to come to Court and testify against you."

22. Finally, the offender demonstrated no remorse throughout the trial and was unrepentant even after he was found guilty. 

23. I am however not convinced that the aggravating factors are so significant in range such as to warrant an increase in the starting point. I also find the mitigating factors, though less in number are adequate to balance the sway from the aggravating factors. I fix the head sentence at 15 years.

Step 2: Should all or part of the head sentence be suspended?

24. I did not receive any submissions from counsel for the offender in this regard. As stated above, no pre-sentence report was requested so I have not had the benefit of discussion that would assist address this issue. The offender is now 48 years old. He has family of a wife and eight children. In The State v Tiama Esrom (2006) N3054, Lenalia J suspended 2 years from a head sentence of 12 years for an offender who pleaded guilty on a similar charge. He was between 50 and 60 years old. He was ordered to serve 10 years. 

25. I will not make a decision in this regard unless the offender or the State make further representation.

Step 3: If all or part of the sentence is suspended, what conditions should be imposed?

26. This aspect follows any determination in respect of Step 2 above.

SENTENCE

27. I make the following order:

1.	John Kati, having been convicted of the crime of engaging in an act of sexual penetration of a child under the age of 16 years, is sentenced to 15 years imprisonment.

2.	This matter is adjourned to the next crimes call-over on 3 July 2012 for determination as to Steps 2 and 3 above if so desired.

_________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused