N6295

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.37 OF 2016

THE STATE

V

KEVIN GORAI (N0.2)

Palmalmal & Kokopo: Lenalia, J.
2016:10th& 17th May

CRIMINAL LAW – Sexual penetration of under-age girl –Criminal Code (Sexual Offences and Crimes Against Children) Act, s.229A (2) – Sentence after finding of guilty. 

CRIMINAL LAW– Sexual penetration of a child under the age of 12 – Sentence – Mitigations and aggravating circumstances – Victim age 7 at time of the offence.  

CRIMINAL LAW – Sentencing principles – Deterrent sentence considered. 

Cases cited:

Garitau Bonu & Rosanna Bonu-v-The State (1997) SC528
Maima v Sma[1972] PNGLR 49
Mase v The State [1991] PNGLR 88
Stanley Sabiu v The State (2007) SC 866
The State v Alios Padik (3.5.2016) Cr. No.1453 of 2014
The State v John Henry (2014) N5630
The State-v-Kaminiel Okole (18.4.06) N3052
The State v Magugu Kapinias (6.5.2016) Cr. No.1208 of 2014
The State v Paul Wakara (2006) CR.No.914 of 2006
The State-v-Penias Mokei (No.2) (2004) N2635
The State v Stanly Kondo (2014) N5780
The State-v-Tiama Esrom (2006) N3054

Counsel:

Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused 

17th May, 2016

1.	LENALIA J:  The prisoner was found guilty on two counts of sexual penetration on 10th of this month for sexually penetrating the victim who was on the dates of these offences 6 and 7 years old under the prescribed age of 12 years contrary to s.229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The above Section states:

“(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.

(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.” 

2.   On his allocutus, the prisoner said, he is sorry for what he did to the little victim Kongle Marake. He said sorry to the victim and her parents and their relatives. He said, he had been found guilty and asked for mercy.  

3.   On the prisoner’s antecedents, he is about 33 years according to the District Court Information Sheet. He comes from a family of two brothers and six sisters. He is from Bain village in Pomio District. He has had no –
           -formal education,
 -no formal employment,
 -he grows tobacco and processes it for sale,
- he is a simple villager.

Mitigations

4.   Extenuating circumstances include as submitted by the defence counsel:
-no prior convictions,
-expression of remorse,
-bread winner of his family and his younger brothers, 2 of whom are in school

Aggravations

5.   The following are the aggravating factors:
-victim at the time the 1st offence, age 6 years 2 ½ months,
-at time of 2nd offence 7 years 4 months
-was under age of 12 years,
-breach of trust, the prisoner and victim’s family lived close to each other 	and he use to come and eat in the victim’s parents’ house,
-big a gap age difference,
-psychological trauma caused to victim,
-impact of offence on victim’s social life

Defence Counsel Submission

6.   The court considers counsels’ submission on sentence. Ms. Ainui for the prisoner submitted that, the court should consider no injuries were caused to the victim and cited the case of The State v Magugu Kapinias (6.5.2016) Cr. No.1208 of 2014 where this court sentenced the offender to 25 consecutive sentences for the crimes of aggravated rape under s.347 (2) of the Criminal Code Amended. Ten (10) years of the sentence was suspended with conditions.

Prosecution Counsel Submission
	
7.   Mr. Rangan cited the case of The State v Alios Padik (3.5.2016) Cr. No.1453 of 2014. On that case the offender charged with one count of persistent sexual abuse under s.229D (6) of the Criminal Code. The victim was under the age of 12 years. He was tried and found guilty. He was sentenced to 20 years imprisonment. Counsel asked the court to consider the deterrent aspect of sentencing in criminal cases because the case involved the victim on the instant case was under the age of 12 years. 

Recent Sentencing Trends

8.    The maximum penalty for the two crimes of sexual penetration of a victim under the age of 12 years pursuant to s.229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act is subject to s.19 of the Criminal Code, life imprisonment. The maximum penalty is usually reserved for the worse type cases encountered in practice: Maima v Sma [1972] PNGLR 49. 

9.   The court observed the victim of this case when she gave her evidence. I accept the fact that she was well under age for anyone to sexually penetrate her. The medical report was tendered by consent (see Ex. “5” & “5A”) shows the hymen was absent (torn). The court’s view is that, the victim was so small, not capable of having sex with anyone. Stiff penalties have been consistently imposed in sexual penetration cases because, this is reflected by the legislators of this nation to protect or prevent our children from sexual abuse of all sorts. 

10.   Because children are so vulnerable, they have to be protected and the Parliament took the right direction on determining rights of young girls. Where perpetrators of any sexual or physical abuse stand in the position of trust, authority and dependency, the Parliament had appropriately considered that such persons be visited with very stiff penalties. 

11.   Sexual offences against children particularly, sexual penetration is very prevalent and there are numerous case law authorities both reported and unreported from which a sentencing Judge in a particular case may gauge the sentencing trends by National Court Judges and decide on an appropriate penalty to be imposed depending on the merits of each case. 

12.   The Supreme Court set a starting point in sexual penetration cases in Stanley Sabiu v The State (2007) SC 866 and said the starting point for sexual penetration of a child under the age of 12 years should be 15 years imprisonment. 

13.   The case before me was committed with a number of very serious aggravations. In the victim’s evidence, she revealed that the prisoner’s house is just next to her parents and the prisoner eats with them and chew betel nuts with her parents. I find the prisoner breached the trust between him and the victim and her parents. 

14.   This court has dealt with a number of sexual penetration cases where offenders have been indicted under s.229A (1) & (2) of the Criminal Code. An example of such cases is in The State-v-Tiama Esrom (2006) N3054 the prisoner pleaded guilty to one count of sexual penetration of an underage victim aggravated by an existing relationship of trust, authority and dependency. This Court sentenced him to 12 years imprisonment. 

15.   In that same year, in The State-v-Kaminiel Okole (18.4.06) N3052, the prisoner pleaded guilty to three counts of sexual penetration aggravated by abused of trust and authority. For the first and second counts, he was sentenced to consecutive terms of 17 years. The sentence of 5 years was ordered to be served concurrently upon the 17 years. Two years were suspended with conditions and he served the balance of 15 years. 

16.   Another case of that year in The State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005, the offender was charged for sexual penetration of the 14 year old victim. There were two acts of sexual penetration, he pleaded guilty. Four years were imposed for the first count and three years for the second making a total of 5 years imprisonment. Sentences were ordered to be served consecutively. Then in The State v Paul Wakara (2006) CR.No.914 of 2006, it was a case where the offender was charged for one count of sexual penetration of a ten year old child. The offender forced the victim into sex. Though no injuries were found, he was sentenced to 10 years imprisonment.

17.    In other cases like in The State v John Henry (2014) N5630, the offender confronted the 9 year old victim while husking coconut in a coconut dryer with her brother. He chased the boy away, and sexually penetrated the victim’s anus and at the same time sexually touched her vagina. The offence was committed with breach of trust because, he was like a grandfather to the victim. There was a huge age gap of 33 years. He was sentenced him to 13 years imprisonment. 
	
18.   In The State v Stanly Kondo (2014) N5780, the prisoner pleaded guilty to two counts of sexually penetrating two 8 year old girls. After seeing the two girls gone to the garden, he followed them. As soon as he reached them, he pushed one down to the ground and held on to the other one and pushed his fingers in and out of her vagina. He took the victims to the house where he told them to play with him. While they were climbing over him, he pushed his fingers in and out of their vaginas. He was sentenced to 14 years consecutive sentences. Due to consideration on the totality principle, the offender was sentenced to 5 years consecutive sentences.    

19.   On the current case, there was a big gap age between the little victim Kongle Marake and the offender. Kongle was merely 6 years old on the act of sexual penetration and 7 years and three month on the second time she was sexually penetrated. The offender’s estimated age then was 33 years old. The age gap was 26 years. In the National Court case of The State-v-Penias Mokei (No.2) (2004) N2635 Cannings J suggested some factors to be taken into account when deciding an appropriate sentence for sexual violence crimes. Such considerations were re-stated by the Supreme Court case of in Stanley Sabiu-v-The State (2007) SC866. The consideration enunciated in the above case are: 

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 used threatening and not used aggravated 
     physical violence? 
6. Did the offender cause physical injury or pass on sexually 
    transmitted disease to the victim?  
7. Was there a 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 
      investigation?	
          11. Has the offender done anything tangible toward repairing his
                wrong such as offering compensation for reconciliation with the 
       family of affected victim?
          12. Has the offender caused any 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. Is the accused a youthful offender or are the circumstances 
               which the court will take and regard as mitigations?
          17. Are there any other circumstances of incidents which warrants 
                mitigation of the head sentence?      	

20.   I adopt the above considerations and apply them to the instant case. It would appear from the evidence of this case that, there may have been some elements of consensual sex. The reason I say this is because, two separate time the victim was sexually penetrated. Once in March 2015 and the second time was on 21st October of that same year.  In my view that would be beside the point because, at that time there was a big age gap between the offender and the victim. The victim was far below the prescribed ages of 12 and 16 years old.

21.    The court considers the fact that, no physical injuries were caused to the victim except for absence of the hymen. The impression the court can form from this was, as the court found, the accused sexually penetrated Kongle. Apart from that, the court considers the psychological trauma caused to the little victim. She will live with such memory lingering in mind so long as she lives.  

22.  Before you are sentenced, the court considers several extenuating circumstances in your favour. Your expression of remorse on the 11th hour and secondly that you have no prior convictions. Assessing extenuating factor against the serious aggravations earlier mentioned, the court finds that the aggravating factors against the offender far outweigh the extenuating circumstances raise in favour of the offender. In the court’s view, the sentence that the court will impose on you, should serve as a deterrent to you as well as deterrence to other likely offenders. 

23.   The instant case involved two instances of sexual penetration. The two offences were committed in two different separate occasions. In my view, consideration on the totality principle as stated in Mase v The State [1991] PNGLR 88 at 92 is not applicable to circumstances of the instant cases. I sentence you in the following terms:
	
Count 1:  Sentenced to 10 years imprisonment.

Count 2:  He is sentenced to 12 years.

24.   Sentences shall be served cumulatively making a total of 22 years less custody period.  

_________________________________________________
The Public Prosecutor:  Lawyer for the State
The Public Solicitor:  Lawyer for the Accused.