N5630

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE HELD]

CR NO. 560 OF 2012

THE STATE

-v-

JOHN HENRY
Defendant

Kokopo: Oli, AJ.
2014: March 4th&10th &May 16th.

CRIMINAL LAW – Practice and Procedure –The offender charge with one count of sexual penetration under s. 229A of the Criminal Code Act 1974 – Plead guilty to the charge – Victim age 9 at the time of the offence –Offender is place in the position that there was an existing relationship of trust, authority or dependency between the offender and the child as a grandfather – Offender breach that trust and dependency relationship. 

CRIMINAL LAW – Practice and Procedure –The offender charge with one count of sexual penetration under s. 229A of the Criminal Code Act 1974 – Offender use no physical violence nor physical harm done through digital touching of victim's vagina through her anus – Consider aggravating factors - breach of trust relationship and offender with huge age difference at 42 with the victim at 9 at the time of the offence - Case consider not worst kind of case scenario – Sentence to 13 years in hard labour less time in custody.

Cases Cited:

The State – v – Peter Lare (2004) N2557.
The State – v – Pennias Mokei (No.2) (2004) N2635
The State – v – Eddie Trosty (2004) N2681
The State – v – Bianson Benson (2005) N2799
The State – v – Joel Remi (2014) CR 733 of 2012
State – v – Mitige Neheva [1988-89] PNGLR. 174

Counsel:

Mr. Albert Kupmain, for the State
Mr Philip Kaluwin, for the Accused

SENTENCE
16th May, 2014

1.	OLI, AJ: On 4th March, 2014, the State tendered an indictment alleging that John Henry (the 'Offender'), had contravened s. 229A (1) (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the 'Act').

2.	The section 229A reads:

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 Subsection (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.

3.	Upon arraignment, the Offender pleaded guilty to the charge under s.299A (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the 'Act').The Court enters provisional plea of guilty.

FACTS/EVIDENCE

4.	The brief facts surrounding the circumstances of this charge against the Offender is that on Friday 1st April 2012 between 12.00pm and 1.00pm at Ratavul Village, the Offender now before the Court namely, John Henry did sexually penetrate the Complainant Miss OT (a minor) age 9 years doing her Elementary grade at village Primary School. 

5.	The complainant came back from school and her aunty told both her and her brother to collect some coconut husk from the coconut fementry shed. The complainant went with her brother to the fementry shed and both of them met the defendant. The defendant chased the brother away back to the house but left the complainant busy removing coconut husks at the coconut fementry shed. The defendant came by her back and pushed his finger into her anus and held her vagina. 

6.	The victim's mother then brought the defendant to the Police Station at Kokopo to be questioned, but the defendant strongly denied committing the offence. However, the offender was arrested and charged. He was cautioned and informed of his Constitutional rights under s. 42 (2) of PNG Constitution and later detained in the cells.

DEFENDANT ENTERS PLEA OF GUILTY

7.	When the Court read the charge to the accused, the offender pleaded guilty to the charge upon facts being put to him. The Court entered a provincial plea of guilty. 

ALLOCUTUS

8.	The Court when administering the allocutus, asked the offender, if he has anything to say. He informed the Court that he has nothing to tell the Court, but would prefer his lawyer to tell the Court on his behalf of what he wants the Court should do to him on sentence. 

VERDICT

9. The Court entered a verdict of guilty and the Prosecutor tendered the committal file to the court with prisoners' antecedent report that he has no prior conviction. He expressed remorse for what he did to the victim, who is his granddaughter. The Defence Counsel inform the Court that he would prefer and request for Means Assessment and Pre-Sentence Report to be obtain from the resident Community Correction Officer before submission on sentence is made to the Court. On 10th March 2014, the Pre-Sentence Report was tendered and both Counsel addressed the Court on sentence accordingly.

MITIGATING FACTORS

9.	The prisoner having pleaded guilty to the charge, the Court find sthe following mitigating factors that are readily apparent and stands out in favour of the offender:

i.	He is the first time offender,
ii.	His guilty plea saved the Court a lot of time,
iii.	His remorse for what he did to the victim.

AGGRAVATING FACTORS

10. At the same time on the contrary, the Court also takes note of the following aggravating factors that stands out against the prisoner as well. They are:

i.	The Offender is the victim's grandfather,
ii.	The Offender is age 42 at the time of arrest when victim was only 9 years of age.
iii.	At the time of the offence, there was an existing relationship of trust, authority or dependency between the Offender and the victim OT, who look up to the offender as her grandfather.
iv.	At the time of the offence, the Victim was with her small brother carrying coconut husk from the coconut fementry shed where the Offender was. However, the Offender saw the victim with her small brother, he then chased the victim's small brother away back to the house and he went back into the coconut fementry shed and sexually penetrated victim by pushing his fingers in through her anus and held her vagina. 

ANALYSIS OF EVIDENCE AND THE LAW

The Offence

11. The Offender committed the offence on Friday 1st April 2012 between 12.00pm and 1.00pm at Ratavul Village. The Offender now before the Court namely, John Henry did sexually penetrate the Complainant Ms OT ('the victim') aged 9 years attending Elementary School. The offender did this to the victim, OT without her consent by inserting his finger into her vagina through her anus. AND THAT OT (the victim) was then in a relationship of trust, authority or dependence with the said JOHN HENRY ("offender") thereby contravening s. 229A (1) & (3) of the Criminal Code Act 1974.

THE LAW

12. There is no doubt that this province has seen its fair share and more, of cases of this nature involving the sexual penetration of minors. The circumstances are many and varied ranging from the consistent and habitual offenders, to the one-off instances. The evidence in relation to this case is that the victim complained of past incidences by the offender to her on number of times but not reported those events to her mother nor to the Police. It appears as if, it was a habitual occurrence by the offender; except that this is the first time the offender was reported and charged. It involves the grandfather; the victim is very young; the act is not consensual and the medical examination reveals that the victim did not suffer from any marked medical injuries as a result of this act. 

10.	The offender penetrated the victim by pushing his finger from her back and push his hand through her anus and with his digital fingers penetrated her vagina. Whether there was any injuries caused to the victim could not be verified, because the medical examination on the victim was done under general anaesthetic procedure, some 18 days later by the Doctor at Nonga Base Hospital. It is obvious that any injuries sustained after sexual digits penetration act would have healed by then. There is no explanation given over this unprecedented delay by the victim's biological mother nor the Police Investigation Officer In-charge of the case, though the formal complaint was reported to Police soon after the event on 1st April 2012. The alleged event took place on Friday the 1st April 2013, and the next available working day would have been Monday 4th April 2013 to have attended to medical examination after formal complaint was lodged with the Police thereafter, but this was not the case either.

MEDICAL REPORT 

11.	The Medical Report submitted by Dr S. Aura O & G Registrar, state that the victim OT was a patient presented to him at Nonga Base Hospital on 18th April 2012. The victim was admitted and examined for alleged sexual assault. The Doctor said that the victim was alleged to have been sexually assaulted on 1st April 2012 by a known relative (grandfather) using his digital fingers. On examination she had normal vital signs. Physical examination revealed normal breast, abdominal and chest finding. Examination under anaesthesia was done in theatre on 18th April 2012 with the following findings.

•	Vulva normal
•	Hymen was wide open
•	Cervix and vagina was normal.

The victim was discharged in satisfactory condition following recovery from anaesthesia.

12.	The Medical Report confirms that there was sexual penetration by offender using his digital fingers. The victim was put under general anaesthesia to carry out a thorough medical examination on the victim of sexual penetration some 18 days later. The clinical medical examination evidence reveal some 18 days later that the victim's hymen was wide open due to offender performing digital sexual penetration. The medical examination could not reveal any evidence of physical harm done to victim's genital area, because the medical examination was not done soon after the incident on the next day on 2nd April 2012, when the actual sexual penetration was done on the 1st April 2013. 

13.	However, it was done some (18) days later, when all soft tissue laceration medically and clinically would have naturally healed by then. Even, if there was any explanation offered by the Police Case Officer and or the victim's mother, as to why medical examination on the victim was delayed and not done immediately after the event on 1st April 2013, the clinical medical examination done after (18) days later would still come with the same result. 

PRE-SENTENCE AND MEANS ASSESSMENT REPORTS

14.	The resident Community Correction Officer, Mrs Miriam Ronald, was directed by the Court upon request by the Defence Counsel to seek a Pre-Sentence and Means Assessment Report from the prisoner and his family and the victim and her family. Both of these reports were well documented and tendered in Court on 10th May 2014, where both Counsel addressed the Court on sentence. The Court adjourned to study the content of both reports together with both Counsel's submission on sentence. 
 
15.	Firstly, the Pre-Sentence and Means Assessment Report on the prisoner. The Court confirms that the prisoner comes from a large family of 11 siblings, 9 males and 2 females and he is the 10th born in the family. The prisoner said that when he was five (5) years of age, he was given away with his elder brother to their biological paternal aunt and husband in Lae to take care of due to their large number of family size to rear by their natural parents. He stated that his maternal aunty took care of him at his early childhood bringing up in Lae, Morobe Province and returned to join his biological parents and family in September 1994. The prisoner stayed with his parents, father Henry Anare and mother Iating Sulvet, who are deceased now. Both of his parents are from Rabaul and they come from and reside at Ratavul village in Balanataman Local Level Government in Rabaul District, East New Britain Province. 

16.	The prisoner is a single man, but did have a son age 12 years out from a de facto relationship with a local girl from his village. He attended Primary Schooling at Huonville Community School in Lae and reaches the highest school leaver certificate at Emmanuel High School, also in Lae. After completing grade 10, he was employed with Steamships Hardware as a Salesman, and worked for at least six (6) years and left in 1994 for Rabaul. He had a shot stint with Rabaul Metal Industries for one year six months (1 ½ years) and left. He became self-employed and provides freelance carpentry and metal works as odd jobs, to keep him going. He does not have much in his savings account except K140.00 with Mature Micro-Finance Savings & Loan Society in Rabaul. 

17.	The Community Correction Officer interviewed the prisoner's elder sister Doris Goru, who says that she is prepared to help pay some form of compensation to victim and her family but does not disclose how much. The prisoners Savings Account with Mature Micro-Finance Savings & Loan Society in Rabaul is not in a very healthy status with K140.00 balance only. The prisoner's sister Doris Goru prefers that her brother who is the prisoner should be given sentence with Good Behaviour Bond plus some amount of compensation to be paid to the victim and her family. 

18.	The victim's mother IaBill Papale told the Community Correction Officer that her daughter has been traumatised by this case, and it will take a while for her to really come of it through her system. She mentioned that this is not the first time the prisoner had done this to her daughter. The prisoner is her grandfather and she look up to him, as someone she can trust. But this trust relationship has been betrayed and she wants the Court to impose custodial sentence without any probation or conditions attached to it. She also stress the point that no amount of any form of compensation will recompense or erase the psychological scar that the prisoner has engraved in her psychological mind. Hence, her preference is that she does not want any compensation payment from the prisoner and his family. 

19.	Finally, the Community Correction Officers assessment and observation of local communities' attitude to the prisoners' integration back to the local community through sentence with probation component attached to it is highly not recommended. The author concludes by stating that having considered all the factors of this report, she is convinced that the said offence has been committed on the minor on several occasions in the past. The offender has been respected and trusted, but he has abused that trust and respect quite miserably. 

20.	The author went onto say that the offence of sexual penetration is quite serious and far becoming more prevalent in this province. It is therefore the author's community representative's view that the offender has to be punished with severe custodial sentence, in order to make him realise the negative effect of his wrong doing. This will also in turn, send the right warning to those potential future perpetrators' to take heed of the message in the sentence that will be imposed by the Court.

SUBMISSION ON SENTENCE

21.	The learned defence counsel Mr Kaluwin, submitted on behalf of the prisoner on sentence and told the Court to take into account the following mitigating factors. They are:

•	That the prisoner pleaded guilty to the charge and save Court's trial time.
•	That the prisoner is a single man and committed the offence at 42 and now 44 years and he is a first time offender.
•	That prisoner insert fingers not penis penetration that is more serious.
•	That this was not a group attack, hence no transmission of sexual disease to the victim.
•	That this case may not deserve lengthy sentence, as the case falls under the category of sexual touching that may attract 3 years custodial sentence, is more appropriate.
•	That there is no permanent injury sustained by the victim, therefore sentence should be in the range of 3 - 4 years and part of it should be placed on probation on Good Behaviour Bond.
•	That the kids generally are resilient to quick recovery from the said initial ordeal of the event in question.

22.	The learned defence counsel finally submitted that his client is entitled to some degree of lenient sentence in this matter, when given due consideration of the mitigating factors in his favour. There is evidence of no serious aggravating circumstances involved, except huge age difference and breach of trust relationship, as a grandfather.

23.	The learned Prosecutor Mr Kupmain, in response submits on sentence, and told the Court by making specific reference to Government Policy considerations behind, in respect to this particular range of sexual penetration offences against the children, incorporated in the Criminal Code Act 1974. The purpose of the recent wholesale amendment to the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the 'Act') is designed to respond to this marginalised group to protect the small children from abused by adults within the same family unit setting context, who are very vulnerable and are at the age of tender years, are subject to sexual abuse, as is the case here.

24.	The learned Prosecutor makes specific reference to the Government's wholesale drive to make legislative amendments in relation to the current sexual offences provisions are inadequate and inappropriate in the Code. The type of offence, for example like sodomy and other related offences in these category. Now these recent wholesale amendments by Parliament includes, in particular, for sexual offences, in the likes of penile penetration, digital penetration, oral sex and sexual touching have relevant application and immediate traumatic impact on the victim by targeted offenders in the family setting. This case falls under these range of category of sexual offences and it's more serious than the sexual touching offences. This case, falls within the serious category of sexual offences like rape without the victim's consent. 

25.	The legislature's intention is to extend and incorporate, the second limb to this particular sexual penetration offence. It clearly provides and recognises the exceptional connectivity that place the offender, in a legal obligatory and accountable position, that there is an existing relationship of trust, authority or dependency between the accused and the child (the victim). This provision is a unique condition precedent to deter potential perpetrators within the family unit, to refrain from such act, and adds traditional value in the family and supposedly, maintain status quo to the existing community natural societal fibre in the family unit, which comprise of matrilineal and patrilineal traditional community structures, in particular, in this province and Papua New Guinea as a whole. The victims of this sexual offences are further traumatised and are really disadvantaged, due to lack of available appropriate post Counselling Centres in the Country that provide post psychological therapeutic remedy to victims from the sexual abuse. 

26.	The learned Prosecutor having alluded to the historical policy background 
considerations that lead to the wholesale amendments made to the sexual offences and lack of post counselling remedial centres for victims of sexual abuses in the country; submit that this case should attract higher range of custodial sentence. This will send the right deterrence message to the community in this province, as this offence is very prevalence, amongst other indictable related offences in the province. The State Prosecutor finally submits that, in the circumstances of this case, the prisoner should receive a custodial sentence without probation, as confirmed by the Community Correction Officer Mrs Miriam Ronald in her Pre-Sentence Report. 
27.	The particular custodial sentence this Court should consider imposing is within the range of 10-15 years. The prosecutor submit and remind Court, that the Court should not be easily misled to believe, by the prisoners mitigating factors enumerated by the defence counsel in isolation. But Court must view the opposing serious aggravating factors, as well. The State Prosecutor submit that the prisoner's mitigating factors is outweighed by the serious breach of trust and confident or dependence relationship that existed between the prisoner and the child (victim). Though, the prisoner has pleaded guilty and save the Courts' trial time, and as a first time offender, must be seen, in view of this case, on its own merit. In this case, the prisoner has a huge age difference from 42 to victim's 9 years, when the offence was committed. Now the prisoner is 44 and the victim is 11, the huge age difference in itself is a serious aggravating factor therefore, ought to attract longer custodial sentence within the range suggested between 10 – 15 years would be a reasonable sentencing range.

What then is the appropriate punishment for this case?
28.	This question is very crucial and challenging because the offence carries a penalty of life imprisonment, subject to the Courts sentencing discretion under section 19 of the Criminal Code Act. It is the rule of thumb that when Court, in exercising its sentencing discretion, each case must be considered and decided on its own merit, in respect to the peculiar set of circumstances and an appropriate penalty meted. This task is achieved through two fronts: Firstly, from the learned Counsel's submission on sentence and; Secondly, the Court by surfing and looking at the decided case precedents to assist in determining and arriving at what is a just and appropriate sentence should be given in this case against the prisoner.

29.	In this case, the factors most aggravating is that the offender is the victim's grandfather, who is 44 years of age but committed the act when he was 42 years. The age difference is far too wide ranging that the offender has taken advantage over the victim, and did this act number of times previously according to the victim in her statement to the resident Community Probation Officer in Pre-Sentence Report. However, the Court is mindful that the offender is only charge with one count, in this case. 

30.	The victim was 9 years old when the offender did this to her. It is unimaginable, of course, that the psychological trauma that the victim was put through when her mother began to enquire and tried to get her daughter to explain her very suspicious spending long time with the offender in the copra fementry shed. And her eventual clinical medical examinations under general anaesthetic are general emotional pain and horror that she was subjected to. However, victim's unavoidable emotional stress caused during the normal Police investigation process and being so young with her very vulnerable tender years, the experience would have been terrifying and unfathomable. 

31.	I had the benefit to hear both Counsel's address me on sentence that the Court should impose on the offender and the appropriate range of sentence the Court should consider appropriate from their perspective. The learned Defence Counsel Kaluwin submits that the sentence should range from 3-4 years with suspended sentence as an alternative sentencing option. The learned Counsel submit that the case should attract the sentencing range between 3-4 years because the case is not rape through penile penetration but one of digital penetration by fingering. However, the learned Counsel Kupmain for the Prosecution on the other end, submit that the case should be treated with serious sentencing penalty, to reflect the seriousness of the offence and send the right deterrence message to potential perpetrators in future and offenders as well.

32.	In order for the Court to appreciate the current sentencing trend and the relative range in the circumstances of this case

33.	 I have the benefit to look at the following case precedent in the same case type category in respect to sexual penetration offences that carries a maximum penalty of 25 years for worst type case scenario, subject to the Court's discretion on sentencing. The Courts have dealt with sentencing, over many years and consider each case based on its own unique set of circumstances and obviously, keeping in mind that the maximum penalty is reserved for the worst possible case. I am satisfied that this case does not fall within the worst category of cases.

34.	I look at the following number of cases as follows:

1.	In the case of State – v – Peter Lare (2004) N2557. The Offender, aged 40 years, pleaded guilty to one count of sexual penetration. The complainant was a girl aged 12, and the offender, her adopted father. There was no consent, no aggravated physical violence, but the offender passed on to the complainant a sexually transmitted disease. The offender was 40 years, he persistently abused the complainant over a period of 2 years. He also attempted to pay compensation. He was labelled a sexual predator by the Court. He was sentence to 20years. This was his first offence.

2.	In the case of State – v – Pennias Mokei (No.2) (2004) N2635. The offender, aged 33, was charged with one count of sexual penetration. The victim was aged 13. The offender was her uncle. There was no physical violence; however, there was serious betrayal of trust. The offender cooperated with the police and also, pleaded guilty. He expressed remorse in Court and was sentenced to 15 years. This was his first offence. 

3.	In the case of State – v - Eddie Trosty (2004) N2681. The offender, aged 21 at the time of the offence, pleaded guilty to one count of sexual penetration. There was consensual sex between the complainant and the offender and there was no aggravated physical violence. The complainant was the offender's girlfriend and was aged 15 at the date of the offence. There was also a pattern of persistent consensual sex. The offender cooperated with the Police; he expressed remorse in Court and was a first time offender. He was sentence to 6 years. 

4.	In the case of State – v – Bianson Benson (2005) N2799. The offender aged17 at the time offence, pleaded guilty to one count of sexual penetration. The complainant was aged 13 at the date of the offence. There was lack of consent however, no weapons were used and there was no aggravated physical violence. The offender cooperated with the Police. He was a first time offender and was sentence to 5 years.

5.	In the final case of State – v – Joel Remi (2014) CR No 733 of 2012. The offender aged about 20 and 21 pleaded guilty to one count of sexual penetration. The victim was aged 15 at the time of the offence. There was no physical violence but the aggravating factor was that victim was taken against her will to a lodge, where she was sexually penetrated. The offender was sentence to 8 years.

What may be the suitable sentence in this case?

35.	In order to address the above question I paused, as to what is the suitable sentence in this case? I have surfed the voluminous case precedents on the subject matter. However, I make reference to just a number of them only. In this case, the offender has pleaded guilty and thereby has saved the Court a lot of time. The offender is aged 42 years at the time of the offence, he is now 44 years. I consider his mitigating factors, has been outweighed by the presence of the serious aggravating factors such as digital touching of the victim's vagina through her anus and breach of trust relationship that existed between them, though the offender used neither physical violence nor physical harm on the victim. 

36.	The other extravagant feature about this case is that the offender has the huge age difference of 42 years (now 44) and the victim 9 years (now 11). It was held in the case of State – v – Mitige Neheva [1988-89] PNGLR. 174; where there is a substantial age difference, it is a circumstance of aggravation. Whilst I consider this case does not fall within the worst possible kind of cases, that will attract maximum penalty of 25 years or if worst case scenario may attract life year sentence. 

37.	I find that the circumstances of this case fall within the case of State – v – Pennias Mokei (No.2) (2004) N2635, where the offender had serious betrayal of trust and substantial age difference, it is indeed a circumstance of aggravation. This case is no different to the above case.

38.	In my view, I find the appropriate sentence in this case to be 13 years in hard labour, less time spent in pre-trial custody.

The Court orders accordingly.

_________________________________________________
State Prosecutors: Lawyer for the State
Public Solicitors Office: Lawyer for the Defendants