N5248

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 718 of 2012

THE STATE

V

RAY JOHN

Kokopo: Lenalia, J.
2013: 20th & March, 2nd April & 20th & 22nd May

CRIMINAL LAW – Asexual penetration of underage girl – Plea of guilty – Factors for consideration – Criminal Code, Amended s.229A (1). 

CRIMINAL LAW – Sexual penetration of underage girl – Guilty plea – Accused age not so different from the victim – Grade 9 student – Sentencing principles – Sentence

Cases cited.

Taiba Maim-v - Sma [1972] PNGLR 49 
The State-v-Peter Lare (2004) N 2557
The State v Ezra Hiviki (2004) N2548
The State-v-Esrom Tiama (2006) N3054
The State-v-Thomas Angup (2005) N2830
The State-v-Kaminiel Okole (2006) N3052
The State-v-John Ritsi Kutetoa (22.3.05) N 2814
Stanley Sabiu-v-The State (2007) SC 866
The State-v-Maris Sola (2010) Cr. No. 636 of 2008

Counsel

Mr. A. Kupmain, for the State
Mr. G. Kerker, for the Accused

May 22nd 2013

SENTENCE

1. LENALIA, J: The prisoner pleaded guilty to one count of sexual penetration of the victim who was under the age of 16 years. The offence took place at Malakuna No.5 village, Bitapaka Local Level Government, Kokopo District, East New Britain Province. This offence is contrary to s. 229A(1) of the Criminal Code Amended. 

2. The victim of this case Sila (Sheila) Wass gave her statement to the police investigating officer on 14th February 2012 on which she alleged that on 5th day of February 2012, she went to their garden with her small sister Mina Wass. As they returned, her sister took a lead and ran ahead. Sila walked alone and on the way, the accused came from her back and held her by her hands. She got surprised and screamed but her sister did not hear her. 

3. Taking advantage of this, the prisoner pointed a knife at her and produced it to her. Seeing the bush-knife, she stopped screaming and the prisoner held on to her hands and led her into nearby bushes where he sexually penetrated her. The victim said, she felt pain in her vagina and told the prisoner that she felt pain in her vagina but the prisoner continued penetrating her until he released his sperm. 

4. After releasing himself, he told the victim that if she went home and tell her mother, he would cut her. He stopped her from telling anyone about what he had committed against the victim. She cried from there to the place where she found Lucas and told him about the story. When Lucas asked her why she was crying, she told him that the accused had raped her. 

Addresses on Sentence

5. On his last say in allocutus, the prisoner said he is sorry for the offence he committed against his cousin sister. He said sorry to the victim and her family, to the community and to the Court. He asked the Court to consider giving him a suspended sentence with good behavior bond. 

6. For the prisoner, Mr. Kerker submitted that, this case cannot be considered to be the worse type case and the Court should consider leniency on this case. Counsel referred to a list of cases which he relied on in his submission. On mitigations, counsel asked the Court to consider the prisoner's the prisoner's guilty plea and submitted that whatever sentence imposed by the Court now should not disturb the prisoner's education. The prisoner is currently doing his Grade 9 at George Brown High School. Counsel said this was an isolated incident and submitted for the Court to consider there was no great age difference between the victim and the prisoner. Documents show at the time of the offence the victim was 14 years while the prisoner was 17 or 18 years old. 

7. Although Mr. Kupmain raised the issue that rape is a serious case f counsel for the State replied to the defence submission that the offence committed by the prisoner is aggravated by Subsection (2) of s.229A of the Criminal Code, he submitted that because of the prisoner's education, he should be given a suspended sentence. On Subsection (2) of the above proviso, it states that where an offence of sexual penetration is committed with a victim under the age of 12 years, an offender is subject to Section 19 of the Criminal Code liable to imprisonment for life. 

Pre-Sentence and Means Assessment Reports.

8. The Court has also read the pre-sentence and means assessment reports file by the Community Base Correction Office. I have read comments by the victim and that of her mother. The mother says that, the prisoner is related to the victim as they are cousin brother and sister because, the victim is the daughter of the elder sister of the prisoner's mother. She admits that what the prisoner did has affected their family relationship. She reveals that in the preliminary status of the process of settlement, she turned down the idea of compensation and decided to live the matter come up to the Courts so settle so that should serve as a lesson to other would be likely offenders. The father Mr. John Wass expressed great concern over the accused behavior toward his sister. He calls for a remedy through compensation with K1, 000.00 and a life pig.
 
Application of Law.

9. To you, young prisoner, you were charged with the crime of sexual penetration against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The maximum penalty that you can get for this offence is 25 years imprisonment. For purposes of the following discussion, I quote the above section including subsection (3) which provides for the maximum penalty in cases aggravated by any existing relationship of trust, authority or dependency as defined by s.6A (1) and (2) of the Act. Section 229A (1) (2) and (3) states:

"(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." 
 
10. You committed the offence with aggravation under Subsection (2) as defined in that Subsection or s.6A of the Act, and John, let the Court warn you that the highest penalty you can get for committing this offence is life imprisonment. The victim of this case was two years older than the age limit stated in Subsection (1). If the victim was under the age of 12 years, the maximum punishment is life. Your case falls into the second aggravation under Subsection (3). This is because, the complainant is very closely related to you. According to your mother's comments in the pre-sentence report, she says that, she is the sister of the victim's mother. 

11. Your case thus involves breach of trust because there is an existing relationship of trust, authority or dependency between you and the victim. The penalty regime provided for by the Amended provisions on sexual penetration in the Criminal Code are designed to curb sexual behaviour of perpetrators who prey upon women and children who are so physically weak by nature and men take advantage of them to satisfy their sexual appetites. Subsection (3) of the above section says that if the offence is committed with an existing relationship of trust or dependency, an offender can face life imprisonment as well. 

12. A child at the age of 14 years is a child by nature and though she was doing Grade 7 by then, she was at her tender age is not capable of having sexual relations with any men. The Courts have repeatedly said that they view these types of abuses to be very serious. Sometimes, victims can be blamed for their carelessness, but where threats are applied to force a girl or woman into sex, it is very serious. 

13. The prisoner's case was a one off incident. However it was aggravated by two factors. First, the age of the victim was under 16 years. The law protects children and particularly the under aged ones because they are weak and incapable of deciding on what is the difference between good and evil. This is the reason why the new law on sexual offences is very specific. 

14. Say for instance, if someone is charged for rape, that is because, the victim did not consent to have sex with the man. In case of sexual penetration of under age children, the element of consent is not an issue. That is to say, as in the present case, even if there was consent on the part of the victim which the facts do not seem to show, it is irrelevant because s.229A (1) of the Act states that anyone "who engages in an act of sexual penetration with a child under the age of 16 years is" guilty of a crime. Under s.229F of the Act says that, it is not a defence under Division 2A or 2B that a child consented unless at the time of the offence an accused believed on reasonable grounds that the child was age 16 or older. 

15. In considering an appropriate sentence to impose in the present case, the proper approach is to have regard to some of the sentences imposed in cases involving sexual penetration of under age children either under s.229A, 229B, s.229D, s.229E or s.347 of the Code. I take this opportunity to thank both counsels for citing case law authorities in your verbal and written submissions to guide the court in the important aspect of the criminal process, namely, the consideration of an appropriate penalty which the Court should consider and what penalty should be impose. The principle of precedence is important as it guides Judges or Magistrates on decision making. 

16. I set out below some examples that I think demonstrate the sentencing trends for the offence under consideration where guilty pleas were entered in relation to various charges laid under the new Amended Act. 

17. In The State v Ezra Hiviki (2004) N2548, the prisoner was convicted of the rape of a girl aged ten (10) years by an older relative contrary to s.347 (1) of the Code on a guilty plea. The prisoner aged sixteen (16) years was the victim's first cousin. The offence occurred in a breach of trust situation. Vaginal injuries required medical repair, there was expression of remorse, and the prisoner was a first time young offender. The Court sentenced the prisoner to thirteen (13) years imprisonment in hard labour. 
 
18. On sexual penetration of girls under the age of 16 years, sentences vary from case to case depending on the nature of each case. For instance, in The State-v-Thomas Angup (2005) N2830 where the prisoner was charged with various counts of sexual penetration and sexual touching of an underage girl. He was convicted on his plea. The victim was age 12 and the prisoner was 34 years. It was a case involving breach of trust. Retired Judge, Lay J, sentenced the prisoner to 20 years imprisonment.

19. In The State-v-Esrom Tiama (2006) N3054, the prisoner pleaded guilty to one count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was merely 9 years. The accused must have been almost 50 years. He was sentenced by this Court to 12 years. Two years were suspended with condition to be placed on bond after service of the total sentence. 

20. In The State-v-Kaminiel Okole (2006) N3052, this court sentenced the prisoner to a term of 17 consecutive years of imprisonment and another 5 years ordered to be served concurrently on the head sentence. The accused in that case was charged with two sexual penetration cases and one case involving breach of trust, authority and dependency. 

21. In another case that of The State-v-John Ritsi Kutetoa (22.3.05) N 2814 a case in Buka, Cannings J; sentence the offender to 17 years for a similar offence. The victim in that case was under the age of 12 years. That case was aggravated by a number of factors such as the age, very large age difference, and there was no consent from the victim. As well the offender caused physical injuries to the victim. 

22. In The State-v-Peter Lare (2004) N 2557, Kandakasi J imposed a sentence of 20 years on the offender who pleaded guilty. The victim was an uncle to the prisoner. He repeatedly had sex with the victim. There was substantial age difference between the victim and the offender. The offender did not express any remorse. In The State-v-Maris Sola (2010) Cr. No. 636 of 2008, the offender pleaded guilty to two counts of sexual penetration pursuant to s.229A(1) of the Act. He was the first time offender. Davani, J sentenced him to 5 years imprisonment but the sentence was fully suspended with conditions.

23. Having considered your guilty plea and counsels' addresses on sentence and the comments made in the pre-sentence report, I am satisfied that the prisoner is a student at George Brown High School and his education should not be disturbed. The Court must say that, students who want to commit crimes must think twice before committing heinous crimes like the instant case or any other crimes. 

24. The Supreme Court case of Stanley Sabiu-v-The State (2007) SC 866 discussed seventeen (17) considerations which National Court Judges should consider when sentencing offenders for the offence of sexual penetration. I have considered all those points and apply them to the instant case and of course, I have covered some of those on this short discussion. Just to mention a few of them, in your case there was no consent by the victim. You used a bush-knife to threaten her to obtain what you wanted. You were lucky to be indicted with sexual penetration under s.229A(1) of the Criminal Code. If you were charged with rape, or had the State invoked Subsection (2) of the above Section, you would have exposed yourself to the maximum penalty of life imprisonment. 

 25. What you did does not reflect well on what is supposed to be reflected by students attending Christian Institutions who are supposed to be light-bearers to their peers in government schools. 

26. In the instant case, having considered all mitigations submitted in favour of the prisoner on one hand and the aggravating circumstances put against him. I have also considered the principle enunciated in previous cases which say that the maximum penalty should be reserved for the worse type case as stated in Taiba Maim-v - Sma [1972] PNGLR 49. 

27. In the circumstances of the present case, I consider a sentence of 7 years imprisonment appropriate. He is sentenced to 7 years. The court suspends the whole sentence on the following conditions: 

1.	Within 7 days from today, the prisoner shall pay compensation in the sum of K1, 000.00 together with 50 fathoms of Tolai shell money to the victim and her relatives. The bail money shall be converted toward such payment.

2.	You shall keep the peace and be of good behavior for a period of 2 years.

3.	In the event that you breach the terms of this Order, the sentence of 7 years will be reactivated immediately and you will serve the full term in custody.

___________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused