N5170

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 541 OF 2010

THE STATE

V

MARTIN WILLIE

Kimbe: Toliken AJ
2012 : 07th, 12th December

CRIMINAL LAW – Sentence – Persistent sexual abuse of a child – Circumstances of aggravation (relationship of trust, dependency and authority) – Plea of Guilty – Facts do not establish existence of a relationship of trust, authority and dependency – Allegation of circumstances of aggravation abandoned – State to indict only for charges that are supported by evidence – More so on plea matters where statements in the committal depositions which are not sworn nor tested by cross examination are relied upon - Plea confirmed only on principal charge of persistent sexual abuse – Criminal Code Act Ch. 262 (as amended to date), ss. 229D (1) (6).

CRIMINAL LAW – Sentence –Factors in mitigation – Plea of guilty - First time offender - No force or violence used –Prisoner co-operated with police – Did not impregnate or infect complainant with sexually transmitted infection – Some element of consent - Complainant not too far below age of consent -Aggravating factors - Sexual Penetration – Prevalence of offence – Effect of imprisonment on prisoner's father considered – Sexual abuse of child a scourge to society – Stiff punitive penalty required - Appropriate sentence – Head sentence of 10 years less pre-sentence custody period. 

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Allen Peter Utieng -v- The State; SCR 15 of 2000 (Unreported and un-numbered judgment
The State -v- Pennias Mokei (No: 2) (2004) N2635
The State -v- George Taunde (2005) N2807 
The State -v- Titus Soumi (2005) N2809
Saperius Yalibakut –v- The State (2006) SC 890 (27 April 2006)
Stanley Sabiu -v- The State (2007) SC866 (27 June 2007)
The State -v- Biason Benson Samson (2009) N2799
The State -v- Steven Siname (2009) N3908
The State -v- Joe Mui, CR 1495 of 2010 (Unreported and un-numbered).
The State -v- Danny Tutuvo (2011) N4400 
The State -v- Ben Sakias (2011) N4238 

Counsel:

F. Popeu, for the State
D. Kari, for the Prisoner

JUDGMENT ON SENTENCE

12th December, 2012

1.	TOLIKEN, AJ: The prisoner Martin Willie pleaded guilty to one count of persistent sexual abuse with circumstances of aggravation under Section 229D (1) (6) of the Criminal Code Act (as amended to date).

2.	The allegations are that he:

".... between the 12th day of November 2009 and the 08th day of December 2009 at Kimbe... on the two (2) occasions pursuantively engaged in the following conduct –

1.	That he on the 12th day of November 2009 at Gigo settlement in Kimbe engaged in an act of sexual penetration with one Dorothy Desmond Galai a child under the age of 16 years, by inserting his penis into her vagina.

2.	That he on the 08th day of December 2009 at Gigo settlement in Kimbe engaged in an act of sexual penetration with one Dorothy Desmond Galai, a child under the age of 16 years, by entering his penis into her vagina.

And at this time the said Martin Willie breached an existing relationship of trust authority and dependency namely that of an adult living in the same house as the child."

THE FACTS

3.	The brief facts are as follows. The State alleged that there were two incidents of sexual abuse of the child by the prisoner. The first being that on the 12th of November 2009, the complainant one Dorothy Desmond Galai, then aged about 15 years of age, had gone down to a nearby creek to fetch water at around 12.00p.m. The prisoner was in his garden near the creek when he saw the complainant. He approached her and took her to his garden. There he removed her clothes, put her down on ground and had sexual intercourse with her by inserting his penis onto her vagina.

4.	Then on the 08th day of December 2009, again at Gigo settlement, the complainant was at the family house. Sometime around 3.00p.m her father left the house. Seeing this the prisoner took the complainant into the living room, removed her clothes, put her down onto the floor and sexually penetrated her by inserting his penis into her vagina.

5.	The State alleged that at the relevant time the prisoner and complainant were living in the same house hence there was an existing relationship of trust, dependency and authority.

6.	The prisoner admitted these facts, however, when I perused the statements in the committal depositions I noted that whilst there was some evidence supporting the two acts of sexual penetration, there was no evidence of the existence of the circumstance of aggravation alleged by the State, namely that the prisoner and the victim lived in the same house let alone any evidence suggesting any sort of filial or other relationship of trust between them. 
 
7.	I put this to both counsel. Both counsel admitted that there is nothing in the statements supporting any relationship of trust and the State didn't pursue the issue further. I therefore only confirmed the plea in so far as it concerned the allegation of persistent sexual abuse only with no circumstances of aggravation.

8.	At this juncture I think it is worth reminding counsel for the State of his duty to indict only for charges that he can support through relevant evidence. This is particularly so on plea matters where statements in the committal depositions which are not sworn nor tested by cross examination are relied upon.

9.	Defence counsel should also be equally vigilant. I understand that there was some plea bargaining in this matter and it would have been obvious to both counsel that any allegation of circumstances of aggravation would not have been supported by the material in the committal deposition.

10.	Most offenders that come before the courts for serious crimes like this one are invariably the less educated and unsophisticated members of society. As it is, most if not all are over-awed by the criminal process they must go through and I doubt that all of them understand fully what they go through in court.

ANTECEDENTS

11.	The prisoner is a 28 year old bachelor. Though born in Kundiawa in the Chimbu Province he has lived most of his childhood and adult life here in Kimbe. He is only educated up to grade six (6). He attends the Four Square Pentecostal Church.

12.	He has no prior convictions.

ALLOCUTUS

13.	On allocutus the prisoner said that he had first revealed what he said was an incestuous relationship between the complainant and her father in 2010 and he is surprised that it is him who is now in court for incidents that happened in 2009.

14.	He pleaded for mercy because he is the only one looking after his father who is now very old. Both his brother and mother are dead. He asked for probation.\

SUBMISSION ON SENTENCE

15.	Mr. Kari for the prisoner submitted that the following particular circumstances should be taken into account by the Court. These are that no weapons were used in the commission of the offence, the prisoner acted alone, the complainant was not physically assaulted to sub-due her and that she was not impregnated.

16.	Furthermore the prisoner pleaded guilty to the offence and that he is a first time offender.

17.	Counsel referred the court to several cases which attracted sentences between 2 – 14 years (Saperius Yalibakut –v- The State (2006) SC 890 (27 April 2006); The State -v- Biason Benson Samson (2009) N2799; State -v- George Taunde (2005) N2807; The State -v- Titus Soumi (2005) N2809. Counsel submitted that the circumstances of these cases have some similarities with this matter. I will return to this later on in this judgment.

18.	Counsel therefore submitted that a sentence of between 2 – 10 years would be appropriate in the circumstances, less the period spent in custody – two (2) years and eight (8) months.

19.	Mr. Popeu on the other hand submitted an appropriate sentence should between ten (10) – twelve (12) years given the fact that this case is quite different to those that were cited by defence counsel. Those cases involved single acts while this one involved two instances – i.e. Persistent abuse of the complainant.

20.	Counsel referred to the cases of Stanley Sabui -v- The State (2007) SC866 and The State -v- Joe Mui, CR 1495 of 2010 (unreported and un numbered).

THE LAW

21.	The offence of persistent sexual abuse of a child is provided by Section 229D of the Code in the following terms:

229D.	Persistent sexual abuse of a child.

(1)	A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty:	Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
(2)	...
(3)	...
(4)	...
(5)	...
(6)	If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

22.	Parliament's intention here is very clear. It differentiates between one act of sexual offences against children such as sexual penetration (S.229A), sexual touching (S.229B) or indecent acts (S.229C), from repeated or persistent acts. And where the act of sexual abuse is penetration the maximum penalty is a very heavy one – life imprisonment. The law views the persistent sexual abuse of children as a very serious matter because of the emotional as well as physical trauma that such atrocious acts can have on children. The scars are ones that victims or survivors as we might call them will carry for life.

23.	So how have the courts treated this type of cases?

SENTENCING TREND

24.	At this juncture I must say that except for the case of the State –v- Joe Mui which I unfortunately only have a copy of the warrant of commitment for, none of the cases referred to me by counsel are relevant to the charge under enquiry. 

25.	However my brief research yielded a few cases which I tabulate below.

No	CASE	PARTICULARS	SENTENCE	
1	The State -v- Danny Tutuve (2011) N4400; Ipang AJ. 	Trial – one count of persistent sexual abuse – two separate occasions of penile penetration of 9 year old child by 55 years old prisoner – huge age difference. 	18 years less pre-trial custody period.	
2	The State -v- Ben Sakias (2011) N4238; Sawong J. 	Plea – prisoner sexually penetrated niece on two different occasion – Prisoner 28 years old/ victim 14 years old – mitigating factors – Plea saved victim from giving evidence in court – expression at remove – unsophisticated village – first time offender – No violence – Aggravating factors – Breach of trust – victim became pregnant – Prevalence of offence.	12 years less pre-sentence custody period.	
3	The State -v- Joe Mui CR: 1495 of 2010; Cannings J.	Convicted of one count of persistent sexual abuse (penetration) of child - No particulars available to the court.	12 years less pre-sentence custody period.	
4	The State -v- Steven Siname (2009) N3908; Lenalia J.	Plea – 3 counts of persistent sexual (penetration) abuse – biological brother/sister relationship – victim 15 years old – mitigating factor – plea of guilty, first time offender – no injuries – Aggravating factors – victim became pregnant - Not one after incident. 	For cont 1 & 2 = 28 years cumulative. Count 3 – 10 years concurrent. Total 28 years less time in pre trial custody.	
5	The State -v- Kuyaps Toki Jonathan (2008) N3315; Kandakasi J	Plea- persistent sexual penetration of 13 years old girl – breach of trust – use of threats and force – victim become pregnant – no compensation – First time offender – Prevalent offence – Prisoner 22 years old.	18 years less period in pre-sentence custody period.	

26.	As we have seen from the above cases, sentences have ranged from twelve (12) to twenty eight (28) years – the higher sentences being those where there existed relationships of trust authority and dependency.

27.	But perhaps what needs to be reiterated here is what the Supreme Court said in Stanley Sabui -v- The State (Supra) – that Parliament had clearly spoken that sexual penetration of children should be severely punished and that the sexual penetration of children under 12 is more serious hence attracting the maximum penalty of life imprisonment.

28.	The Supreme Court there was dealing with an appeal against sentence for a conviction against S.229A of the Code. In the context of an offence of persistent sexual under Section 229D (1) (6) of the Code it is also clear that Parliament has taken a similarly very strong view that those who persistently sexually penetrate children must be visited upon by the same maximum penalty – life imprisonment.

29.	The people have spoken very clearly through Parliament that they will not tolerate this kind of the most brutal and diabolical abuse of our most vulnerable and defenceless members of our society. And it falls on the courts to ensure that offenders – who invariably are people who stand in positions of trust – are appropriately punished.

30.	So what would be an appropriate sentence for the prisoner?

APPROPRIATE SENTENCE

31.	The maximum sentence that can be imposed here is life imprisonment. However, it is well settled that the maximum penalty is always reserved for the worst category cases. (Goli Golu -v- The State [1979] PNGLR 653. And of course actual sentences depend very much on the peculiar circumstances of each case.

32.	In sentencing offenders for sexual penetration of children generally, the Supreme Court in Stanley Sabui -v- The State (Supra) adopted what Cannings J. considered in The State -v- Pennias Mokei (No: 2) (2004) N2635 and The State -v- Biason Benson Samson (supra) to be relevant factors. These are:

(1)	The age difference between the offender and the victim.
(2)	How far below the age of 16 years the victim was.
(3)	Whether there was consent
(4)	The number of offenders
(5)	Whether the offender use a threatening weapon or aggravated physical violence.
(6)	Whether the offender cause physical injury or infect the victim into a sexual transmitted infection.
(7)	Whether there was existing relationship of trust, dependency or authority and if there was, how close 
(8)	Whether it was an isolated incident and from time to time in each particular case. For instance in a lot of the cases surveyed above the courts took into account whether the offender impregnated the victim.
(9)	Whether the offender surrendered after the incident 
(10)	Whether he co-operated with police
(11)	Whether he has done anything tangible such as offering compensation to the victim of her family or apologizing or reconciling with them personally or publicly.
(12)	Whether he has caused further trouble to the victim and her family since the incident.
(13)	Whether he has pleaded guilty
(14)	Whether he has shown genuine remorse
(15)	Whether he is a first time offender
(16)	Whether he can be regarded as a youthful offender or his personal circumstances are such that they should mitigate the sentence.
(17)	Whether there are other circumstances of the incident or the offender that warrant mitigation of the head sentence.

33.	In approving the above considerations, the Supreme Court reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence.

34.	But while the above considerations may seem exhaustive I do not think they are for there may exist other factors and considerations that may arise from time to time in each particular case. For instance in a lot of the cases surveyed above the courts took into account whether the offender impregnated the victim.

35.	The circumstances enumerated above can be taken appropriately as either mitigating or aggravating the offence.

36.	So I turn to the current case to take the following mitigating factors into consideration.

37.	The prisoner pleaded guilty to the charge and made early admissions as evidenced from the record of interview. He also co-operated with police. He is a first time offender. He did not use force or violence on both occasions nor did he cause any physical injuries to the victim. He did not impregnate her nor did he infect her with any sexual transmitted infection. (STI)

38.	I also accept that there are some evidences that the victim consented and only reported the matter after the prisoner revealed what he said was an incestuous relationship between her and her biological father. I also note that at the relevant time the victim was a year shy of the age of consent ie. 16years. To me these are significant mitigating factors.

39.	Now quite apart from the fact that sexual penetration of the victim by the prisoner is a circumstance of aggravation under Subsection (6) of Section 229D of the Code the only other aggravating factor that is present in this case is that the offence is a very prevalent one, not only here in Kimbe, but elsewhere in the country. 

40.	This, however, does not mean that the prisoner will get off lightly. Far from it. The offence carries a maximum of life imprisonment which as we have seen is reflective of the seriousness which the people through their collective voice in Parliament, view the offence. Our children, more so our girls, need to be protected from preying men, old and young. While a few of these girls may consent to being sexually penetrated they invariably are not physically and physiological aware of the consequences that follow, which among other things, include unplanned pregnancies and sexually transmitted infections.

41.	Of course consent on these types of cases is ineffectual law, and rightly so too.

42.	While some child victims of sexual abuse, particularly those who are about to reach or have reached puberty may begin to have strong sexual feelings due to hormonal changes in their bodies, they are still children who cannot at that age take proper care of their sexuality, lesser still fully appreciate the many adverse consequences that come with it.

43.	Unfortunately the victims of sexual abuse are not limited to those who have reached or about to reach puberty. Some are below 12 years old, even at the very tender age of 9 years or even lower.

44.	Sexual abuse of our children, particularly girls, in whatever form or manner, is a scourge to the society that must be arrested and stiff punitive sentences should be visited upon perpetrators most of whom are adult men, who invariably, are known to the victims and some of whom stand in positions of trust, dependency and authority.

45.	So with the above considerations, I feel that a starting point for the prisoner in this matter should be 11 years.

46.	As I have indicated above, there are significant mitigating factors in favour of the accused. In fact numerically they outweigh the aggravating factors.

47.	The submission by defence counsel that a sentence between 2-10 years does not properly appreciate the seriousness of the offence and the need to protect our girls. I therefore do not take that with any degree of seriousness.

48.	Be that as it may, this matter has to be treated on its own merits so that an appropriate sentence can be imposed that will address the conflicting interest of the parties involve – the offender, the State and the victim.

49.	The prisoner took advantage of the victim, not once but twice. He had no respect for the dignity of the victim as a person. He took advantage of the impulsive and emotional response, perhaps, by the victim to hormonal changes in her body and sexually violated her. Fortunately the victim did not fall pregnant or contract a sexually transmitted infection – a fact I have taken in the prisoner's favour.

50.	However, what has this made to the victim? She obviously has permanently been tarnished and will be regarded with very low esteem by people in her community.

51.	Now this sentence will weigh heavily on the prisoner. And obviously but unfortunately it will affect others who are innocent of this crime. He has an old father whom he seems to be the sole carer of.

52.	The prisoner pleaded for mercy because he is worried about what will happen to his father if he goes to gaol. Well, these are things that he should have considered before indulging in or even contemplating this offence. (Allen Peter Utiang -v- The State) SCR 15 of 2000 (Unreported and un numbered judgment).

53.	There is one feature on this case that sets it apart from the cases I have reviewed. And that is the fact that there is no evidence of the existence of a relationship of trust and the breach thereof. I consider this to be significant factor in his favour.

54.	So in the circumstances I consider that an appropriate sentence should be 11 years bearing in mind the prisoner's mitigating factors.

55.	There was some issue with how long the prisoner had been in pre-trial custody. The State said he had only been in custody for a short while and this seemed to be supported by the Corrective Institution but the court depositions indicate otherwise. The prisoner had been held in custody since the 19th of April 2010. I also accept defence counsel's submission that the prisoner was arrested on 01st April 2010. The committal depositions the prisoner was allowed K300.00 bail when he was committed on 19th April 2010 but he never seemed to have posted bail.

56.	I accept therefore that the prisoner had been in pre-sentence custody since 01st April 2010, a period of two (2) years, eight(8) months and eleven (11) days to date. 

57.	Hence, a period of two (2) years, eight (8) months and eleven (11) days are deducted from the head sentence. That should leave a resultant sentence of seven (7) years, three (3) months and nineteen (19) days. None of which will be suspended.

58.	My orders are therefore as follows:

1	Head Sentence	10 years	
2	Amount deducted for pre-sentence custody period	2 years, 8 months & 11 days.	
3.	Resultant sentence	7 years, 3 months and 19 days	
4	Suspension	Nil	
5	Amount of sentence to serve at Lakiemata Corrective Institution.	7 years, 3 months & 11 days	

59.	I order accordingly 

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