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State v Xavier [2014] PGNC 342; N5789 (23 August 2014)

N5789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 417 0F 2013

THE STATE

V

FRANCIS REU XAVIER

Kimbe: Cannings J
2014: 11, 22, 23 August

CRIMINAL LAW – sentence – engaging in act of sexual penetration with child under the age of 16 years – Criminal Code, Sections 229A(1) – guilty plea.

The offender pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16, a 12-year-old girl. There was no aggravated physical violence.

Held:

(1) The maximum penalty, given that the child was not less than 12 years old, is 25 years imprisonment. A starting point of ten years imprisonment was used.

(2) Mitigating factors: the offender acted alone; he used no weapon or aggravated violence; it was an isolated incident; he has caused no further trouble to the victim; he is a first-time offender; no permanent physical injury to the victim; no sexually transmitted disease was passed on; he was a youthful offender.

(3) Aggravating factors: the large age gap (seven years) between the offender and the victim; the tender age of the victim; there was no consent; breach of trust.

(4) A sentence of nine years imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Arnold Kulami (No 2) (2009) N4473
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

SENTENCE

This is the sentence for a man convicted of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

F K Popeu, for the State
D Kari, for the accused

23rd August, 2014

1. CANNINGS J: This is a decision on the sentence for Francis Reu Xavier who pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code. The offence was committed at Bagum village in the Talasea area of West New Britain Province on 26 September 2012 at 11.00 am. The offender followed the victim R, a 12-year-old girl, into the bushes. R had been sent there by her mother, to collect firewood. The offender approached R, grabbed her, pulled her into the bushes and penetrated her vagina with his penis. He left R there and walked away.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

This girl was my girlfriend and we agreed to have sex. We had sex on three previous occasions. I was a Grade 10 student when this happened. I ask for mercy and a non-custodial sentence.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). I take into account that he made some admissions when interviewed by Police on 1 September 2012. However, it is not a mitigating factor that the child consented. He has always maintained that she consented but her witness statement says the opposite and her age makes consent illusory.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Francis Reu Xavier

Age : 21
Origin : Bagum
Upbringing : village
Marital status : single
Family : 4th born in family of 5
Education : grade 9
Employment : no formal employment
Occupation : student
Health : OK

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari emphasised guilty plea, the fact that the offender acted alone and caused no physical injury and did not pass on any sexually transmitted disease. A moderate suspended sentence would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Popeu contended that a sentence of 10 to 12 years imprisonment is necessary.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for the offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Engaging in an act of sexual penetration with a child under the age of 16 years: Criminal Code, Section 229A(1): the maximum is 25 years imprisonment. I have discretion, of course, to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT?

10. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences that have been imposed by the National Court and some sentences that have been reviewed by the Supreme Court, I will use a starting point of ten years.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. I have sentenced a number of offenders for similar offences as shown in the following table.

SENTENCES FOR ENGAGING IN ACT OF SEXUAL PENETRATION
WITH A CHILD AGED 12 TO 15 YEARS

STEP 4: WHAT IS THE HEAD SENTENCE?

12. I refer to the list of sentencing considerations set out in The State v Arnold Kulami (No 2) (2009) N4473 and highlight the following mitigating and aggravating factors.

Mitigating factors:

• the offender acted alone;
• he used no weapon or aggravated violence;
• it was an isolated incident;
• he has caused no further trouble to the victim;
• he is a first-time offender;
• no permanent physical injury to the victim;
• no STD passed on;
• he was a youthful offender, in school.
  

Aggravating factors:

• the large age gap (seven years) between the offender and the victim;
• the tender age of the victim;
• there was no consent;
• breach of trust.
  

I impose a sentence of nine years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

13. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is ten months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

14. No. The pre-sentence report does not warrant suspension. There is no evidence of reconciliation between the offender and the victim or between their families.

SENTENCE

15. Francis Reu Xavier, having been convicted of one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender