N5162

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 13 (NO. 2) OF 2009
 
THE STATE

V

VIRGIL KAGENI

Popondetta: Toliken, AJ
2012: 14th August
26th November

CRIMINAL LAW – Sentence – Sexual Penetration of child under 16 years – Plea – Offence committed when prisoner was a juvenile – Mitigating and aggravating factors considered – Head sentence of 5 years – Period spent in pre-sentence custody deducted – Criminal Code Act Ch.262, s 229A (1), Criminal Justice (Sentences) Act 1986, s 3. 

Cases Cited:

The State –v- Abba Bani (2008) N3863
Wellington Belawa –v- The State [1988-89] PNGLR 496
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-John Ritsi Kutetoa (2005) N2814
The State –v- Michael Siviri (2006) N3382
The State –v- Braun Kawage (2009) N3696
The State –v- John Okuba (2009) N3726
The State –v-Philip Peter (2010) N4011

Counsel:

M. Ruarri, for the State
A. Ninkama, for the accused

JUDGMENT ON SENTENCE

26th November, 2012

1.	TOLIKEN AJ: On 26th of May 2004, around mid-day, at Igora Block, Popondetta, 14 year old Cathy Timothy was walking home from school. She met you on the road. She greeted you but you didn't reply. Instead you grabbed her by her left breast as she walked passed you. She removed your hands but then you grabbed her and carried her down a creek and into the bush where you dropped her on the ground.

2.	You pulled off her skirt and underpants, took out your erect penis, penetrated her vagina and had sex with her without her consent until you ejaculated.

3.	You then took her further into the bush. There you again sexually penetrated her without her consent. After that, she pretended to go and urinate but instead fled the scene and went straight home crying and reported the matter to her mother.

4.	On 14th of August 2012, the State initially indicted you for one count of rape. The Prosecutor, however, withdrew the count of rape and instead indicted you for sexual penetration of a girl under 16 years contrary to Section 229A, Criminal Code Act. 

5.	You pleaded guilty to the charge and also admitted the supporting brief facts which I have recited above.

6.	I confirmed your plea after perusing the committal depositions. I was satisfied that the evidence supported the charge and your plea.

7.	I wasn't able to pass my sentence then so I do so now.

ANTECEDENTS

8.	You come from a family of 3 brothers and a sister. You are the eldest. Your mother is still alive but your father passed away. You have no formal education. You attend the Apostolic Church. You have no prior convictions. I accept that you would have been under 18 years old when you committed the offence.

ALLOCUTUS

9.	In your address to the Court before sentence, you apologized to the victim, her family and relatives.

10.	You expressed remorse saying that you now realized that you had broken the law. You told the Court that you had been in custody for a period of 4 years and 3 months while awaiting trial. You said this is your first offence, hence, you asked for leniency.

SUBMISSIONS

Your Counsel

11.	 Mr Ninkama submitted that while your offence attracts a maximum penalty of 25 years, the maximum penalty is always reserved for the worst category of cases as is well settled. Furthermore, each case should be treated on its own merits and particular facts (Goli Goli –v- The State [1979] PNGLR 653; Lawrence Simbe –v- The StateI [1994 PNGLR 38.

12.	Mr Ninkama submitted that at the time of the offence, you were 17 years while the victim was then 14 years old. Hence you were a juvenile where you committed the offence and should therefore be treated as such under the provisions of the Juvenile Courts Act 1991. Your sentence should therefore be appropriate to a juvenile offender.

13.	Your lawyer submitted that your early plea has saved time and money for the State in that it has not been forced to run a trial.

14.	He also said that there are extenuating circumstances in your case. These are:-

•	The age disparity between you and the victim is only three years, you were 17 years and she was 14 years.

•	The victim did not suffer any permanent physical injuries or get pregnant or contract any Sexually Transmitted Infection (STI).

•	This was a one-off incident.

15.	Counsel however, conceded that against these are the following factors:-

•	This is serious offence over which Parliament had increased the penalty to protect children from sexual abuse and violence and this is reflected in the maximum penalty prescribed.

16.	Mr Ninkama cited several cases to me which he said should assist me in arriving at appropriate sentence for you. These are:- The State –v-Philip Peter (2010) N4011; The State –v- John Okuba (2009) N3726; The State –v- Abba Bani (2008) N3863. I will discuss the details of these cases later as in this Judgment.

17.	He, however, said that your case could be easily distinguished from these cases for the following reasons.

(1)	At the relevant time, you were a juvenile.

(2)	The age disparity between you and the victim was only 3 years as compared to 26 years in the case of John Akuba (supra) which case attracted an 8 years sentence.

(3)	While your case is similar to other cases in that, they were all one-off incidents. There was no pre-meditation or planning on your part. He said this was a crime of opportunity - of instant lust.

(4)	There was not physical injury though he conceded that the victim did lose her virginity. 

18.	Mr Ninkama, therefore submitted that an appropriate sentence for you should be less than 8 years.

19.	He submitted that apart from the age disparity, your case is more similar to the case of Peter Philip (supra) though he was a youthful offender. In that case, the prisoner had pleaded guilty to consensual sexual penetration of a girl under age of 16 years. She was 15 years old while he prisoner was 20 years old. That was a one-off incident. The prisoner was sentenced to 5 years imprisonment of which 1 year and 7 months was deducted for pre-trial custody period. The balance was wholly suspended.

20.	Mr Ninkama, therefore submitted that an appropriate head sentence for you should be 5 years. The period you spent in custody should be deducted from that and the balance wholly suspended.

 Counsel for the State

21.	Mr Ruarri for the State, on the other hand submitted that contrary to what your Counsel said, yours is not an early plea. Because you had previously pleaded not guilty to rape and only charged, your plea when the charge was reduced to sexual penetration of a child. You were committed for trial in 2008.

22.	Mr Ruarri said that there was no consent and that you used force to achieve your purpose.

23.	As to suggestions that you have expressed remorse, Mr Ruarri said that any expression of remorse does not carry any weight without compensation or direct apology to the victim. (Belawa –v- The State [1988-89] PNGLR 496) The State –v- Michael Siviri (2006) N3382).

24.	Mr Ruarri also referred me to several cases where the Courts had imposed sentences ranging from 12 years to 20 years. These cases involved adult perpetrators and were committed against children of varying ages from as low as 10 years old. These are the cases of The State –v- Peter Lare (2004) N2557; Saperius Yalibakut (2006) SC 890; The State –v- Brown Kawage (2009) N3696; The State –v-John Ritsi Kutetoa ((2005) N2814. I will return to these cases later.

25.	Mr Ruarri, therefore, submitted that an appropriate sentence in your case should be 15 years imprisonment.

THE OFFENCE

26.	The offence of sexual penetration of a child under age of 16 years is provided by Section 229A (1) of the Criminal Code Act, Ch. 262. It provides:-

"229A. Sexual Penetration of a Child

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

Penalty: Subject to sub-section (2) and (3), imprisonment for a term not exceeding 25 years.

(2)	…

(3)	…"

27.	The predecessor to Section 229A(1) is Section 216 (Defilement of girls under 16 and idiots) which was repealed by Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) S.11. The penalty under the repealed provision was a term of imprisonment not exceeding 5 years. Furthermore, the offence was a mere misdemeanour.

28.	Parliament, however, increased the penalty for this offence (and similar offences against children) markedly through the Criminal Code (Sexual Offences Against Children) Act 2002 five-fold from 5 years to 25 ears. Sexual penetration of children under 12 years and where there is an existing relationship of trust, authority and dependency and attract life imprisonment (subject to S.19 of the Code) (S.229A (2)(3)).

29.	The increase in penalties and the creation of new offences was Parliament's response partly to the escalating sexual violence and abuse of children in the country and partly in response to our international commitment to the United Nations Convention for the Right of the Child which Parliament ratified.

30.	Be that as it may, sexual abuse and more particularly the sexual penetration of a child, male or female, is a grave offence that must attract appropriately stiff sentences. Sexual abuse of children is a serious and abhorrent violation against the most vulnerable members of our society who most need our protection.

31.	Parliament has responded to that need to protect children by increasing penalties and creating new offences which are aimed at criminalizing conduct which hitherto was merely frowned upon but which unfortunately may have contributed to the abuse and violation of our children.

32.	So it is against that back drop that I must now proceed to first consider what the sentencing trend by the Court has been for this type of offence and secondly what, in the peculiar circumstances of your case would be an appropriate sentence for you.

SENTENCING TREND

33.	Let us consider some sentences by this Court, some of which had been referred to me by Counsel.

34.	In The State –v- Peter Lare (supra), the prisoner pleaded guilty to one count of sexual penetration of a girl under 16 years of age. The victim was orphaned and was adopted when still a baby by the prisoner and his wife.

35.	The prisoner sexually violated the victim over a period of 4 years. These violations started with manual manipulation of the victim's genitalia and kisses, in the river and bushes when she was about 10 years old. This went on for about two years but after that, the prisoner eventually started to sexually penetrate or have sexual intercourse with the victim. This persisted for another two (2) years before the prisoner was reported to the police by relatives of his wife.

36.	Kandakasi, J. considered that there was a breach of trust by the prisoner (though the prisoner was not charged with abuse of trust, authority or dependency – S.229E of the Code), there was a substantial age disparity between him and the victim and there was no expression of remorse. The victim was also infected with a Sexually transmitted Infection (STI).

37.	So despite the fact that the prisoner was a first time offender and pleaded guilty to the charge, His Honour was of the view that the circumstances of the offence called for a stiff punitive and deterrent sentence. He imposed a sentence of 20 years.

38.	His Honour said that whilst he accepted that the courts have a wide discretion under Section 19 of the Code to impose a sentence lower than the prescribed maximum penalty he said however that:-

"…the Courts have a duty to take into account, the prevailing circumstances and the communities desire to prevent if not eradicates such serious offences against children, evidenced by the re-emphasis placed on the offence by parliament. In so doing, the Court is under an obligation to ensure to that the sentences they decided to impose do reflect the wishes of the community, the horror done to the victim, the need to deter, other would be offenders and to help rehabilitate the offender."

39.	In The State –v- John Ritsi Kutetoa, (supra) the prisoner was sentenced to 17 years imprisonment on a plea for sexually penetrating his 11 year old step-daughter.

40.	Cannings, J. considered, among other things, the prisoner's plea of guilty, that he was a first time offender, had expressed remorse and that it was a one off incident. However, His Honour took into account the following aggravating factors; there was an existing relationship of trust. The age disparity (39 years against 10 years), offender met a youthful offender, was under the influence of alcohol, use of physical violence resulting in injury to the victim.

41.	Hence His Honour restated certain considerations which he had laid down previously in the case of The State –v- Pennias Mokei (No.2) N2635 and from Judgments by Kandakasi, J. (The State –v- Peter Lare(supra); The State –v- Eddie Trosty (2004) N2681; The State –v- Kemai Lumou (2004) N2684).

42.	His Honour stated that the following considerations should be taken into account when sentencing offenders under S.229A; the age disparity between the victim and the prisoner; How far below the age of 16 the victim was, whether there was consent; the number of offenders; whether offensive/threatening weapon or aggravated violence was used; whether physical injury was caused or sexually transmitted Infection was passed to victim; whether relationship of trust, authority or dependency existed, whether an isolated incident, where offender gave himself up and co-operated with police; whether offender did anything tangible to repair his wrong eg. Compensation etc; whether he caused further trouble to victim ad family; whether he pleaded guilty or expressed remorse; whether a first time offender; whether youthful.

43.	These are factors that can be taken either as mitigating or aggravating factors. I find these to be very helpful in deciding an appropriate sentence.

44.	In The State –v-Abba Bani (2008) N3863, the prisoner was found guilty after trial for one count of sexual penetration of a child under S.229A of the Code. This was a case of consensual sex. The victim was 12 years old while the prisoner was 19 years old – an age difference of 7 years. The victim lost her virginity.

45.	The court applied the following factors in the prisoner's favour. He was a law abiding citizen prior to committing the offence, he did not infect the victim with STI or impregnate him, he did not use any weapons and that he apologized for his offence.

46.	Against him, however, were the following factors; he was an age different between him and the victim of 7 years, his denial of the charge forced the victim to unnecessarily come to court to testify, the victim suffered lacerations around her genital area and lost her virginity and that his expression of remorse wasn't genuine.

47.	The prisoner was sentenced to 8 years imprisonment less pre-sentence custody period.

48.	In The State –v- John Okuba (supra), the 41 year old prisoner pleaded guilty to sexually penetrating the 15 years old victim. Cannings, J. found that no weapons or aggravated violence were used, the victim was not far under the age of consent (16 years), she suffered no physical injuries and that compensation was paid and the parties had reconciled. The victim also apologized, pleaded guilty and a first time offender.

49.	The aggravating factors were the big age difference of 26 years and the act of penile penetration itself.

50.	The prisoner was sentenced to 8 years less time spent in custody awaiting trial.

51.	The State –v- Braun Kawage (2009) N3696, the prisoner pleaded guilty to sexually penetrating the 14 year old victim. He was 24 years old. There was a relationship of trust and aggravated violence. David, J. imposed a term of 14 years.

52.	In The State –v- Peter Philip (supra), the 20 year old prisoner had consensual sex with 15 years old victim. Sawong J. imposed a sentence of 5 years after considering the relevant mitigating and aggravating factors which included, among other things, that the prisoner pleaded guilty, was a first time offender, a youthful offender and that he was remorseful. But against this, he found one aggravating factor – that there was an age disparity of 5 years between the accused and the victim. His Honour deducted the period spent in custody, fully suspended the balance and placed the prisoner on 18 month's probation with conditions.

YOUR CASE

53.	Now turning to your case. In doing so, I find the guideline and considerations laid down in The State –v- Pennias Mokei (supra) to be very useful and hence I adopt them. 

54.	 I find the following factors as mitigating your offence. Firstly, you pleaded guilty to the offence. I noted, however, that this was only after the State indicted you for the current offence. You were originally indicted for rape. Hence I hold this factor not to be not a very strong but a mitigating factor, nonetheless.

55.	Secondly, I find that you were a juvenile of 17 years when you committed this offence. The State did not negate your claim and your Counsel's submission that you were 17 years at that time so I hold you to have been of that age.

56.	Thirdly, you are a first time offender.

57.	Fourthly, when you pleaded guilty to the offence, you saved the victim from re-living her ordeal had she given evidence on trial.

58.	Fifth, you did not impregnate the victim or infected her with a Sexually Transmitted Infection or caused her any physical injury.

59.	I also take into account that there was an age difference between you and the victim of 3 years. Furthermore, the victim was 2 years below the age of consent which is 16 years.

60.	But against you are the following aggravating factors.

61.	Firstly, this was not an act of consensual sexual intercourse.

62.	Secondly, you used violence on the victim by violently carrying her off into the bush where you sexual penetrated her, not once but twice. And for all we know, you might have continued on had she not escaped from you.

63.	Thirdly, the victim lost her virginity, something which every self-respecting girl or woman views as important - as a mark of a woman's moral worth. You robbed the child of that and her dignity as a person when you violently degraded her.

64.	You have not made any attempt to make reparations or pay compensation to the victim. This is despite the fact that you had ample time to do that since it took several years for the law to catch up with you because you left the village immediately after you committed the offence.

65.	I note from the material in the committal file that the victim referred to you as uncle. While there is no evidence as to the exact nature of your connection to her, for all we know there might not exist a relationship of trust. However, the extended family unit in most Melanesian societies demand a certain degree of mutual respect from those whom we count as being related to us. And it follows that there is an unspoken duty on us to respect and protect the young and vulnerable.

66.	I take this as an aggravating factor but not as strongly as in a situation where there existed a strong and close relationship of trust.

67.	Lastly, this type of offence is very prevalent and this is an added aggravating factor against you.

APPROPRIATE SETENCE

68.	What then should be an appropriate sentence for you.

69.	It seems that your mitigating factors outweigh the aggravating factors. But while that may be so, there should not be any delusion that your offence calls for a stiff punitive and deterrent sentence, taking into account those factors or features that are favourable to you of course.

70.	Sexual Offences against our children of the female gender continue to rise despite the increased penalties that they now attract.

71.	Our children, but more so, our girls must be protected from preying old as well as young men and even juveniles like you. They must feel safe to walk around our villages, cities and town without fear of being sexually harassed or attacked.

72.	There is no doubt that you must be imprisoned for your offence. However, what should be a fair starting point for you. The cases I have surveyed above from 5 years to 20 years. Most if not all offenders were either adults or youthful offenders. You were a juvenile so there alone sets you apart from those cases.

73.	Having considered the peculiar circumstances of your case and bearing in mind that you are a juvenile whose interest I must take particular consideration of, I must impose a sentence that will not only exact punishment on you but most importantly rehabilitate you.

74.	No doubt you have, during the time you have been awaiting your trial, learnt the hard way that crime pays a terrible wage.

75.	So, in the final analysis, the starting point in your case should be 6 years. Your head sentence should be 5 years.

76.	I shall deduct the pre-sentence custody period of 4 years 6 months and 12 days (Section .3(2) Criminal Justice (Sentences) Act) 1986. The resultant sentence shall be 5 months and 18 days.

77.	You shall therefore serve the remaining 5 months and 18 days of your sentence at Biru Corrective Institution.

Orders accordingly.

_________________________________________________________________
Public Prosecutor : Lawyers for the State
Paraka Lawyers : Lawyers for the accused