N5959 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 48 OF 2012

THE STATE

V

ERIC PUROPURO

Alotau: Toliken, J.
2014: 21st November

CRIMINAL LAW – Sentence – Two counts of sexual penetration of a girl under 16 years of age –Plea - Offences committed on two different dates within the same 24 hour period – Factors in mitigation – Guilty plea – First time offence – Remorse – Offender uneducated – No violence used – Complainant not impregnated or infected with Sexually Transmitted Infection (STI) – Aggravating factors – Prevalent offence – Huge age difference of 22 years – Need for deterrence – Appropriate sentence – 8 years for 1st count and 9 years for 2nd count – Offences committed within 24 hours of each other - Sentences cumulative – Criminal Code Ch. 262, s 229A. 

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State [1982] PNGLR 92
The State v Wanaisu (2013) N5284 
The State Joseph Pastin (2014) N5623
The State v Pennias Mokei (No.2) (2004) N2635
 The State v Lucas Dantale (2013) N5387

Counsel

R Auka & H Roalakona, for the State
P Palek & Kaumba, for the prisoner
 
SENTENCE

21st November, 2014

1.	TOLIKEN, J: On 21st of July 2014, Eric Puropuro, the State laid an indictment charging you with two counts of sexual penetration of a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code. The charges were:

 Count 1: "that on the 11th day of August 2011 at Alotau, Milne Bay Province in Papua New Guinea [you] engaged in an act of sexual penetration with a child namely Dorah Nesai who was under the age of 16 years then thirteen years old by inserting [your] penis into her vagina."

 Count 2: "that on the 12nd day of August 2011 at Alotau, Milne Bay Province in Papua New Guinea [you] engaged in an act of sexual penetration of a child  namely Dorah Nesai who was under the age of 16 years then thirteen years by inserting [your] penis into her vagina.

2.	The State's allegations were that at all material times, the complainant child was 13 years old. On the 11th of August 2011, you took her to your house at Goilanai and had sexual intercourse with her by inserting your penis into her vagina. You again had sexual intercourse with her the next day, the 12th of August 2011 by inserting your penis into her vagina. When you had sexual intercourse with the complainant on the 11th and 12th of August 2011, you committed the offence of sexual penetration of a child under the age of 16 years which is prohibited by Section 229A (1) of the Criminal Code.

3.	You pleaded guilty to both counts and I convicted you after I had satisfied myself from the Committal Depositions supported your charge and plea. Your lawyer, Ms. Kaumba, however, requested for a Pre-Sentence Report before the allocutus could be administered. I then adjourned the matter to the 10th of September 2014 and ordered that PSR be filed on your behalf. The PSR was filed and I administered the allocutus and heard submissions on sentence. But I was unable to pass sentence. I do so now. 

4.	 In your address to the Court on sentence, you said that you broke the law of this country because of the ways of this sinful world. You apologised to the Court for what you had done. You apologised to the complainant, her parents and their family, to the Police Force, the public and to Jehovah God. You said that we're all sinners and therefore pleaded for mercy and asked for a non-custodial sentence. You asked for forgiveness from the complainant and from her family and from God. You asked God for his mercy. Finally, you said that you pleaded guilty to the offence and this is your first time.

5.	Ms. Kaumba on your behalf submitted that yours is not a worst case and cited the following factors as mitigating your offence. These are:

•	You have no formal education and have never been formally employed.
•	You pleaded guilty to the charge.
•	You have no prior convictions.
•	You have expressed genuine remorse.
•	You co-operated with the police since your arrest.
•	You did not use any violence nor did you cause any injury to the complainant.
•	You did not impregnate or pass an STI on the complainant.
•	You are willing to pay compensation.

6.	She acknowledged though that the complainant was under the age of consent and that the offence is prevalent.

7.	Mrs. Kaumba submitted further that even though there was a big age difference between you and the complainant, (you were 35 years old and she only 13 years old) she looked and behaved like someone older than 13 years so you mistook her for someone older. She also said that how she was able to entice you into having sexual intercourse with her which was not expected from a 13 year old girl.

8.	Counsel said that the complaint was described by a youth leader from the complainant's community as someone who constantly lies, is full of deceit, involved in petty thievery and sexual immorality despite her young age. She hangs around in places at night where she is not supposed to, is undisciplined and one who has no concern for her own welfare.

9.	Counsel further said that the complainant's father said that she had left school sometimes ago and has a 16 month old baby whom she had abandoned and left with her parents to look after and the parents do not know where she is. This information is contained in your Pre Sentence Report.

10.	Ms. Kaumba submitted that an appropriate sentence for you should therefore be 5 – 10 years. She also referred me to a long list of cases previously decided by this court to assist me arrive at an appropriate sentence for you.

11.	Mr. Auka for the State submitted that an appropriate sentence for you should be 10 years for each count. He urged this Court to consider the prevalence of the offence and Parliament's intention for creating this type of offence - the protection of children from sexual abuse.

12.	The Pre-Sentence Report is in your favour. The author is of the view that you are a suitable candidate for probation. Apart from yourself, the following people were interviewed for your report, your brother Felix Mark Puropuro, Andrew Nesai, the complainant's father and Cliff Bamisi, a youth leader of Yabwau Compound, Alotau.

13.	The complainant's father, Mr. Nesai was content with your being released back into the community but with strict or stringent conditions including payment of reasonable compensation in cash and kind to the value of K900.00. He informed the Probation Officer that the complainant had left school several years back and has an 11 month old child whom she had abandoned as is being currently looked after by the parents. At the time of the interview, the complainant had left home and had been away from the house for 2 weeks. Her parents did not know her whereabouts.

14.	Mr. Banasi, the Youth Leader describes the complainant as a constant lier, deceitful and gets involved in petty thefts and sexual immorality despite her age. She hangs out in places young girls of her age are not supposed to hang around at night. The complainant is a spoilt and undisciplined girl who has no consideration for her well-being and welfare.

15.	You stated in your PSR that while you are not formally employed, you are involved in the informal sector selling sundries from which you can earn between K100.00 – K200.00 a day.

16.	The offence you pleaded guilty to carries a maximum penalty of 25 years imprisonment. This does not mean, however, that I will sentence you to 25 years. The prescribed penalty is merely the maximum that can be imposed. Only the worst instances of an offence can attract the maximum penalty. Otherwise what an appropriate sentence will be in a particular case will depend largely on the peculiar facts and circumstances of that case. These matters are settled in this jurisdiction (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State [1982] PNGLR 92).

17.	I will therefore have to consider the circumstances of your case and decide what will be an appropriate sentence for you. Apart from that, I must consider the purpose for which the offence was created by Parliament in addition to the general objectives or purposes of sentencing such as deterrence, punishment and rehabilitation. The Court is also guided by what sentences other judges have imposed in similar cases or what they have said in respect of a particular offence.

18.	Now in respect of offences against children, Parliament's intention – when creating these offences and the penalties is simple – the protection of vulnerable children from all forms of sexual abuse. And this is because children need the protection, love and guidance principally from their parents, close blood relatives and guardians but also from society generally.

19.	The courts have a duty to give effect to Parliament's intention by imposing appropriate sentences which also must serve a purpose as I have said above. For sexual offences against children the principal objective should be deterrence and, punishment where necessary. Where the offence is one of persistent sexual abuse, I should think that the principal objective should be punishment because a serial abuser of a child is not someone who simply stepped out of line once but someone who repeatedly commits abuse fully knowing that what he is doing is wrong and against the law.

20.	Let me now consider a few recent sentences that this Court had imposed on offenders against this offence. And lets start with a few local cases or more.

21.	In The State v Wanaisu (2013) N5284 (24 May 2013), I sentenced the offender to 12 years imprisonment for sexually penetrating a 13 year old girl. He had met the girl in the bush collecting firewood. He hit her on the head and then pushed her to the ground. When she fell to the ground, he grabbed her by the hair and dragged her to a river. There, he sexually penetrated her amidst the girl's pleas for mercy and struggle. This case was akin more to rape but the charge was obviously arrived at through plea bargaining.

22.	In The State v Joseph Pastin (2014) N5623 (23rd May 2014), the 18 year old prisoner sexually penetrated the complainant who was 2 months short of her 16th birthday. This was a consensual act but the complainant became pregnant and also had to leave school. I sentenced the prisoner to 4 years imprisonment.

23.	In The State v Pennias Mokei (No.2) (2004) N2635, the prisoner was found guilty after trial for sexually penetrating the 13 year old victim. The girl did not consent but there was an existing relationship of trust, authority and dependency. His Honour Cannings, J. sentenced the prisoner to 15 years imprisonment.

24.	In The State v Lucas Dantale (2013) N5387, the prisoner, a 30 year old school teacher pleaded guilty to two counts of sexually penetrating a 13 year old pupil in circumstances of aggravation in that the prisoner stood in a position of trust, authority and dependency towards the child. Cannings, J. imposed to notional sentences of 8 years and 10 years resulting in a potential sentence of 18 years. Because the offences were committed on separate days, the sentences were to have run cumulatively but in applying the totality principle and because of a favourable Pre-Sentence Report the sentence was reduced to 12 years less pre-trial custody period.

25.	Let me now consider the circumstances of your case. But before I do that, let me just consider your personal particulars. You are 38 years old and come from Kaputa village in the Rabaraba area of the Milne Bay Province. You have been separated from your wife from whom you have a child. You were never educated. Your parents are both dead and you were raised by your grandmother. You are self employed in the Informal Sector Market. You're a first time offender. You have been in custody for a period of 3 years and 1 week.

26.	I accept the mitigating factors that your lawyer submitted in your behalf which I do not need to restate. In your favour, I found also that there seemed to have been some tacit consent by the complainant despite what she says in her Victim Impact Statement. I accept that she is somewhat an undiscipline child and seem to have been sexually active though this is not an excuse for you to take advantage of her because she was but a child.

27.	Against you, though, I find that there was a huge age difference between the two of you. You were 35 years old and she was only 13 years old. That is an age difference of 22 years. But is this a worst offence that should attract the maximum penalty?

28.	I think it is not, so it should not attract the maximum. Sexual offences against children are, however, serious by their very nature and people who take sexual advantage of children should not expect to be lightly treated by the Court.

29.	Yours is one of those cases where the complainant was a willing partner. She was 2 years shy of the age of consent and seemed to have been sexually active. What do we do in such cases? Should the Court treat them lightly? As I said, the Court should not, for the greater benefit of the community and society at large. Criminal Law seeks to protect the right of the State at large and while individual justice is served on an individual basis to persons caught in criminal prosecutions, order within the body politic called the State remains the prime object of Criminal Law. So while a child may choose to become sexually active at an age below the age of consent, such a situation is often forced upon them by lack of guidance, love and discipline in the home. But you should not think that you should be exonerated or excused because of that.

30.	The offence of sexual penetration of children is a very prevalent one and as I said a deterrent sentence should be imposed so that people like you and others can be deterred as well as kept away from young girls.

31.	But for the fact that your case does not involve any circumstances of aggravation, the circumstances of your case are a bit similar to those in The State v Lucas Dantale (supra) where the prisoner got 8 and 10 years respectively for two counts of sexual penetration. I, therefore sentence you to 8 years for the first count and 9 years for the second count for a total of 17 years. Should these sentences be served concurrently or cumulatively?

32.	You were charged for committing these offences on different but consecutive dates, i.e. on the 1st and 2nd of August but on the same victim. I note, however, that the two occasions actually happened within 24 hours. The depositions show that the complainant accompanied you to your place at about 9.00 p.m. on the 1st of August and the first act of penetration occurred soon after that. The second act took place between 1.00 p.m. and 2.00 p.m. on the 2nd of August which was still within 24 hours albeit on different days. This should justify a concurrent, instead of a cumulative sentence. Your sentences will therefore run concurrently. You will serve 9 years less the 3 years and 1 week that you spent in custody awaiting trial.

33.	Your resultant sentence should therefore be 5 years 11 months and 3 weeks which you will serve at Giligili Corrective Institution. None of this will be suspended.

Orders accordingly.

_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the prisoner