N5825

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 15 OF 2013

THE STATE

V

MELVIN PHILIP

Lorengau: Geita J
2014: 6, 13 November

CRIMINAL LAW – Guilty Plea -Sentence – Particular offence – Sexual penetrating of a girl under 16 years – Small age difference -S. 229A (1) of the Criminal Code Act.

CRIMINAL LAW – Guilty plea – Consensual sex- Mitigating circumstances far outnumber aggravating circumstances – First time youthful offender – Need to give the prisoner second chance – Custodial sentence considered inappropriate - Sentenced to 5 years wholly suspended. 

Cases Cited:
Papua New Guinea Cases 

The State v Moses Kalabond (Cr 782 & 784 of 2014) -Geita J delivered 13 November 2014. 
The State v Biason Benson Samson (2005) N2799 

Overseas Case Cited

R v Taggart (1923) 17 Cr. App. R. 132

Counsel: 

Francis Popeu, for the State 
Tom Kaleh, for the prisoner

JUDGMENT ON SENTENCE
13 November, 2014

1. GEITA J: You pleaded guilty to a charge of sexual penetration of HJ, a girl under the age of 16 years old in her home at Atehin village in Manus Province. You penetrated her vagina with your penis thereby contravening s 229A (1) of the Criminal Code Act, as amended to date. 

The Law

2. The Offence of sexual penetration of a child is prescribed under s229A in the following terms: 

"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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

The brief facts

3. The facts as agreed by the State and Defence on the depositions for the guilty plea are these: On 6 April 2012, you, your friend Newton Worrin and the victim HJ, 15 years at the time were in Atehin village on the West Coast of Manus Island. You both came across the victim whilst she was at her house and you sexually penetrated her with your penis with her consent. Newton Worrin also had sex with her against her will. The next day the incident was reported to police resulting in your arrest and subsequent charge. 

Allocutus

4. In your allocutus, you said sorry for what you had done in the eyes of God and to the court. You said what you did was not good and asked to be considered for Probation. You said you were deceived by the size of her breasts and physical built. 

Mitigating factors

5. The following factors were considered in your mitigation:

a) Your pleaded guilty in spite of penalty being life imprisonment

 b) No prior convictions 

 c) That you had expressed genuine remorse for your behaviour.

 d) No physical injuries caused to the victim

e) That you are a first-time youthful offender

 f) That the act was not persistent, no sexual deceases transmitted. 

 g) Victim not impregnated

Aggravating factors 

6. This was the only aggravating factor: 

 1) Victim under age and 15 years at the time crime committed

Personal particulars

7. 	a) Prisoner now 22 years, was 20 yrs when was crime committed

b) Educated up to Grade 8 at Amik Primary School

c) Single and 5th in family of five children

d) Both his parents are alive, Roman Catholic faith

e) Comes from Amik Island some 1000 miles away out to sea towards the Western Border of Manus Province

Pre Sentence Report

7. The Pre-Sentence Report sets out in great detail all relevant information with a recommendation that you be placed on probation and given another chance due to your youthful age and early guilty plea. To this I must commend Mr Wep Ninau, Probation Officer here in Lorengau. Despite the victim and her family members not included in your pre sentence report, due to isolation and distance of their village from Lorengau, I must commend the Probation Officer for a well researched and balanced report. As I understood from your pre sentence report an approximate distance of 1000 kilometres to and from Lorengau town. Everything that the court needed to know about you is contained in the report. You families willingness to pay compensation of K2000 on your behalf is noted however as I have said in previous rape cases perpetrators wrongs should not be shouldered by his family and friend. He should be made accountable and responsible for his own wrongs. In your case you should be made to pay for your wrongdoing. Your father holds you and his other children in high regard and commends your obedience; hence saw no need for tough disciplinary measures until this crime. Your community leader also holds you in very high regard as skilful and respectful to your elders. Your actions alone in religiously attending your court appearances without fail these past two years are testimony to your fathers' good family upbringing. Your family is commended for this. The aggravating factors against you are minimal however they will be taken into account in your sentence. 

Defence submissions

8. Your Lawyer told me about your personnel particulars and also made submissions on what the appropriate sentence ought to be in your case. In his submissions, your lawyer has urged the Court to take into account in your favour mitigating factors which he says far out-weigh any aggravating factors, such that in the facts and circumstances of this case, the Court should impose a lighter sentence on you. Mr Kaleh submitted that the prisoner has demonstrated his respect for the law knowing full well that in the event the trial is mounted the victim would not be available due to distance and costs of travel into Lorengau. He urged the Court to wholly suspend any sentence that may be imposed and place you on probation with strict conditions. Mr Kaleh submitted that your case was not the worst of its kind of sexual penetration in that you both agreed and had sex. 

State submissions

10. Counsel for the State, Mr Popeu submitted that I use the case of The State v Moses Kalabond (Cr 782 & 784 of 2014-Geita J delivered 13 November 2014.) as a guide. That case involved a father and step daughter in consensual sex. I sentenced the father to serve sentence of 10 years with 5 years to be suspended provided he pays K5000 as compensation with conditions. The court was also referred to two other cases involving sexual penetration with children. (The State v Biason Benson Samson (2005) N2799 and Penial Mokei (No 2). Having had the benefit of considering the above judgments in relation of some pertinent factors one should take into determining sentences in like case I restate and apply them here in this case. The relevant factors include: 

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 the police in their investigations?

11 Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

12 Has the offender not caused 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?

11. To his credit the State Prosecutor Mr. Popeu conceded that the prisoner had cooperated well with police and diligently attended court over the last two years. He agreed that had the prisoner maintained his innocence as he rightly should any chances of securing a conviction would be nil due to difficulties in bringing in witnesses into court from Amik Island, some 1000 miles away from Lorengau town. He conceded that the prisoners mitigating circumstances far outweigh his aggravating factors, deserving of a wholly suspended sentence to which I wholeheartedly agree. 

Community attitudes

12. I have made some observations during my previous circuits to Manus province and I repeat them here again. Those sexual offences against young girls and women appear to be on the increase in our country. On every circuit I make to your province I have dealt with at least one or two cases of this nature and it concerns me greatly. I am sure it must also be a concern to law abiding citizens here in this province. Similar types of sexual offence cases still dominate the crimes list here and this month's circuit is no different. 

Sentence 

13. The issue for consideration is what than is the appropriate sentence that I should imposed upon you. As I understand from the depositions before me yours was a crime of opportunity. When you realised that the victim was alone in her house you approached her and had consensual sex with her. No physical harm was caused to her. 

14. Now applying the guidelines in the two cases mentioned earlier, answers in the affirmative would significantly outnumber the aggravating factors. It follows that a favourable lighter sentence coupled with States' inability to produce its witnesses in the event of a trial, a wholly suspended sentence appears to be the most appropriate sentence in my view. Furthermore as the crime was consensual in nature, you being a youthful first time offender, a prison term under the circumstances in my view inappropriate. I am guided by the remarks made in R v Taggart (1923) 17 Cr. App. R. 132 which was cited often times in many decisions of this Court and the Supreme Court and I quote: "a Judge or Magistrate who sends a young man to prison for the first time takes on a grave responsibility."

COURT ORDER

15. In all the circumstances of this case taking into account your plea of guilty, your expression of remorse, first time youthful offender, a non custodial sentence would suffice. Furthermore yours was not a crime of violence. Accordingly I consider a nominal head sentence of 5 years imprisonment. In the exercise of my discretion under Section 19 of the Criminal Code the whole of the sentence will be suspended. I do not propose to further suspend any part of the sentence other than those already given as this sentence in my view includes ample degree of leniency. 

Your bail of K400 will be returned to you. 

Sentence accordingly.
________________________________________________________________

Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyers for the prisoner