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State v Gabriel [2014] PGNC 52; N5576 (22 April 2014)

N5576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 31 0F 2006

THE STATE

V

JONATHAN GABRIEL

Madang: Cannings J
2013: 25 October, 12 November,
2014: 11 March, 22 April

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – guilty plea – offender 15-year-old boy at time of offence; victim, a 3-year-old boy – Criminal Code, Section 229A(1),(2), (3).

The offender, now 24 years old, pleaded guilty to sexually penetrating a three-year-old boy, a close relative, an offence he committed when he was 15 years old. The victim's parents were prepared to accept compensation and engage in customary reconciliation with the offender. This is the judgment on sentence.

Held:

(1) The maximum penalty in this case was life imprisonment and a useful starting point is 20 years imprisonment.

(2) Mitigating factors are: offender was a juvenile when he committed the offence; acted alone; no weapon or aggravated violence; no permanent physical injury to the victim; no STD passed on; isolated incident; no further trouble; first-time offender; pleaded guilty; expressed remorse; willingness to compensate and reconcile.

(3) Aggravating factors are: large age gap; tender age of victim; no consent; extreme breach of trust.

(4) A sentence of four years was imposed. The pre-sentence period in custody was deducted and, because of the willingness of the offender's family and victim's family, who are related, to seriously attempt a customary reconciliation of the matter, the balance of the sentence was suspended subject to payment of K2,000.00 compensation and a formal reconciliation, which is to occur within six months after release from custody.

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 Charles Rome (2007) N5048
The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09
The State v Francis Guandi Borie (2007) N5048
The State v John Ritsi Kutetoa (2005) N2814
The State v Kolton Duen Songones (2007) N5048
The State v Olwin Noel (2012) N4664
The State v Paul Gule (2007) N5407
The State v Sawan Raumo (2007) N4983
The State v Timothy Bipi (2009) N3608

SENTENCE

This is a judgment on sentence for an offence under Criminal Code, Section 229A(1): engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation.

Counsel

M Pil, for the State
A Meten, for the offender

22nd April, 2014

1. CANNINGS J: This is the decision on sentence for a 24-year-old man, Jonathan Gabriel, who has pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years, a 3-year-old boy, "N", his cousin. The offence was committed near their village, Sangkiang, in the Ramu area of Madang Province on 22 July 2005. The offender was 15 years old at the time. He was charged soon after the incident and was committed by the Ramu District Court in September 2005 for trial. However, for reasons unknown, he did not appear before the National Court until more than eight years later, in October 2013.

2. He committed the offence in sugar fields close to his village. He saw the victim playing with other children. He asked the victim to follow him to a secluded location, away from the other children. The victim followed him and when they were alone the offender held down the victim, removed his clothes, then penetrated his anus with his penis.

3. The offender has 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 in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the offender and the child.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

What I have done is not good and I apologise to the victim and his family in front of the Court and to the Heavenly Father.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I take into account that there was no aggravated physical violence used in the assault on the victim. The medical evidence (the boy was examined on the day of the offence at Gusap Health Centre) shows that he suffered no permanent injury. There was evidence of penetration and he was traumatised and had difficulty standing upright but there was no bleeding and he was not hospitalised. No sexually transmitted disease was passed on to the victim.

PRE-SENTENCE REPORT

7. Jonathan Gabriel comes from Sangkiang village and was raised in the village. He lives with his parents and he is the second of four children. He was educated to grade 5. He has been living in the village since completing his education and earns an income from the sale of cash crops and is otherwise supported by his father who has fulltime employment with Ramu Sugar. He is a member of the Seventh-Day Adventist Church. His health is sound. He is strongly supported by his parents despite what he has done. They acknowledge that he has committed a very serious offence against a close relative but they want the chance to, in some way, solve the problem by customary reconciliation with the victim and his family. They are willing to pay further compensation – in addition to a moderate amount of bel kol that was paid in 2005 – if given time. The victim's family is willing to accept compensation. They have expressed no desire to see the offender spend further time in custody. The offender is considered suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mrs Meten highlighted a number of mitigating factors: the victim, although of tender age, did not sustain serious physical injuries; the offender has no prior convictions; he pleaded guilty; it was an isolated incident; he co-operated with police. Three years imprisonment would be an appropriate sentence, which should be suspended to allow for reconciliation to be effected quickly.

SUBMISSIONS BY THE STATE

9. Mr Pil conceded that in view of the special circumstances of the case a moderate sentence of three years would be appropriate.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• 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?

11. There were two circumstances of aggravation charged in the indictment: the child victim was under the age of 12 years and there was an existing relationship of trust, authority and dependency between the offender and the child. The maximum penalty is therefore life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. As the maximum penalty is life imprisonment I consider that a useful starting point is 20 years imprisonment.

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

13. I will summarise in the following table some sentences I have imposed for offences of this nature where the victim has been less than 12 years old.

NATIONAL COURT SENTENCES ON SECTION 229A –
CHILD UNDER THE AGE OF 12 YEARS

STEP 4: WHAT IS THE HEAD SENTENCE?

14. 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.

15. Mitigating factors:

• the offence was committed a long time ago, when the offender was a juvenile;
• 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 has, through his family's representations, shown a genuine willingness to compensate and reconcile.
  

16. Aggravating factors:

• the large age gap (12 years) between the offender and the victim;
• the tender age of the victim;
• there was no consent;
• the breach of trust was extreme.
  

17. Given the number and strength of the mitigating factors the sentence will be below the starting point. This is a special case, for a number of reasons. Most significantly the offender was a juvenile when he committed the offence, which was committed more than eight years ago. There has already been substantial reconciliation between the two families and since he committed the offence the offender has caused no further trouble. The State is not pressing for a heavy sentence and I consider that that is a reasonable position to take. I fix a sentence of four years.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. 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 6 months, 2 weeks.

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

19. The pre-sentence report is generally favourable, and the prospect of reconciliation is real. The fact that the offence was committed within the family and within the village community makes it a very serious crime. But on the other hand because both the offender's family and the victim's family are willing to reconcile, I think the court should provide them with the opportunity for this to happen. So I will uphold the submission of the defence that in this unusual case it is appropriate to suspend the balance of the sentence. I will allow six months to pay compensation of K2,000.00 + 1 pig and to reconcile properly and formally with the victim and his family. That will be one of the conditions of the suspended sentence. If it cannot be met, the offender will go back to prison to serve the balance of the sentence.

20. The balance of the sentence will be suspended on condition that the offender:

(a) must report to the Probation Office within three days after the date of release from custody;

(b) must, within six months after the date of release from custody, with his family, participate in a reconciliation ceremony with the victim and his family, supervised and witnessed by the Police, the Village Court and the Probation Office, and:

• pay compensation of K2,000.00 cash + 1 pig + foodstuffs to the victim;
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(c) must appear before the National Court at Madang within seven months after the date of release from custody to prove compliance with condition (c);

(d) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(e) must not leave Madang Province without the written approval of the National Court;

(f) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(g) must attend his local Church every weekend for service and worship and submit to counselling;

(h) must report to the Probation Office at Madang as and when required and at least once every two months;

(i) must not consume alcohol or drugs;

(j) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;

(k) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(l) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. Jonathan Gabriel, having been convicted of the crime 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 in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child, is sentenced as follows:

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