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State v Pinda [2017] PGNC 322; N6960 (6 April 2017)

N6960

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 101 OF 2014

THE STATE

V

TIMOTHY PINDA

Kimbe: Batari J
2016: 18 October
2017: 06 April

CRIMINAL LAW – sentence - sexual penetration of girl under 16 years – victim aged 14 years - first time offender aged 19 years – plea - sentencing principles – appropriate approach to sentencing – use of range instead of starting point as guide.

CRIMINAL LAW – sentence – particular offence - sentencing policy - sexual penetration of girl under 16 years – change in legislation increasing seriousness of offence and penalty – legislative intent not to punish sexual penetration – effect on sentencing discretion - sentence of six years imprisonment wholly suspended appropriate - Criminal Code s229A(1)

Facts

The offender pleaded guilty to one count of sexual penetration of a girl under the age of sixteen, she being, 14 years of age and the offender being 19 years of age at the time of the offence. The sexual penetration after consensus being uncontested.

Held

1. The use of a sentencing ‘scale’ or ‘range’ as a guide in sentencing is preferred to a starting point because ‘starting points’ give the impression of an inflexible sentencing option;
   
2. Because there are legal excuses or defences available in some factual circumstances to sexual intercourse with a girl under the age or 12, or 14 years of age, the seriousness of the offence and the aim to protect young children should not overcloud Parliament intention of defences available to the accused with the onus on the accused;
   
3. In the circumstances of the case a sentence of 6 years imprisonment, wholly suspended on probation terms is appropriate.
   

Cases Cited

John Elipas Kalabus v The State [1989] PNGLR 195
Rex Lialu v The State [1990] PNGLR 487
Stanley Sabiu v. The State (2007) SC866
Tau Jim Anis v The State (2000) SC642
The State v Polin Pochalon Lopai [1988-89] PNGLR 48
The State v Rex Lialu [1988–89] PNGLR
The State v. Ndakum Pu-Uh (2005) N2949
The State v. Penias Mokei (No 2) (2004) N2635

Counsel

A. Bray, for the State
E. Sasingian, for the Accused

SENTENCE

06 April, 2017

1. BATARI J: At a beach creek possibly on a chance encounter, the accused Timothy Pinda sexually penetrated complainant, RM for her protection. That was/is against the law because RM was then underage at 14 years. This is his sentence.
   

Background

2. The common facts that also form the basis for sentence are brief. On 19 September, 2013 RM was at Bia Creek, Bagum Village, Talasea. Timothy Pinda of the same village came upon her unexpectedly and took her into the bushes where he sexually penetrated her. Timothy claimed RM was his girlfriend. The victim does not accept that assertion but told the Probationer Officer, the offender had previously violated her in the same manner. There being no divergence of facts, I give the offender the benefit of doubt. Both had kept the first encounter to themselves. This is fortified by the fact that the parents only learned of the incident the next day from a third party. The complainant was then aged 14 years and attending Bagum Primary School. Timothy was aged 19.
   

The Offence of Sexual Penetration

3. Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 creates the offence of sexual penetration with a child under 16 years. It re-enacts and gives a combined effect to the now repealed provisions of s.213 (Defilement of girls under 12) and s.216 (Defilement of girls under 16) of the Criminal Code. The new law is non-gender specific. It also divides the offence into “simple” and “aggravated” sexual penetration.
   
4. The first category of sexual penetration as set out in s.229A (1) creates the offence of sexual penetration with a child under the age of 16 years. Cases involving victims over 12 years where there is no breach of trust or it does not involve persistent abuse or amount to rape come under this provision. The prescribed maximum penalty is 25 years imprisonment.
   
5. The second category is in Subsections (2) and (3) covers the situation where the child victim is either under the age of 12 years, or the offence involved breach of an existing relationship of trust, authority or dependency. The prescribed maximum penalty is life imprisonment.
   
6. Prior to the amendment, the maximum penalty for what was then the offence of “unlawful carnal knowledge of a girl under 16 years” was 5 years imprisonment and life if the victim is less than 12 years.
   

Effect of the new law on sexual offences against children

7. It is relevant to make some observations on what I consider, a troublesome task that confronts a sentencing judge under the new law.
   
8. By repealing and replacing s. 213 and s. 216 of the Criminal Code with s.229A, the intention of Parliament is clearly that sexual offences against children must meet with severe punishment. By raising the degree of seriousness of sexual offences against children, the aim is clearly to give children and the community, greater protection against all kinds and manner of sexual violations. This is reflected in the increased maximum penalty provisions. And the offence has also been made gender neutral for wider application. The prominence given to the offence is also apparent from the substitution of the term, “unlawful carnal knowledge” with the more defining term, “sexual penetration.”
   
9. However, it is apparent; the scheme of the new law is not to punish every act of sexual penetration against children. This is plain from the relevant provisions which provide for statutory defences against criminal responsibility. For instance, s.229F (b) permits sexual penetration between a child over 12 years with a person who is no more than two years older than the child unless, a relationship of trust, authority or dependency existed and where elements of rape are not present.
   
10. See also, s.229G which provides for a statutory defence of marriage. An accused person will escape criminal liability if he can show that he is married to the child who is 14 years or older. In the third exclusion provision under s.229F (a), the accused person can avoid criminal responsibility if he can show a belief on reasonable grounds, the child was 16 years or older.
    
11. The law in permitting a child between 12 years and 16 years sexual freedom seems logical. It recognizes that a child lacks adult maturity to discern and make informed decisions on his or her sexual behavior. This presumes that a child in that age group still lacks the moral aptitude and mental capacity of an adult to fully appreciate the legal and social implications and consequences of his or her conduct.
    
12. Conversely, it seems preposterous that the law allows child promiscuity and child marriage. The law in permitting marriage at 14 years presumes that a 14 year old child has the adult maturity; mental capacity and physical ability to partake in adult ways and activities. Be that as it may, the Court must interpret and apply the law as it stands.
    

Practical considerations on application of new Law

13. The application of the new law can present some real practical difficulty. From a conceivable view, the law makes sexual penetration of a child under 16 years a very serious crime at the same time as it recognizes and permits child promiscuity and marriage. In my view, the attribute of “seriousness” of the offence diminishes if a child over 12 years can lawfully engage in sexual activity and lawfully marry at 14 years of age.
    
14. This scenario also sets the stage for peculiar results. For instance, if adults A and B engage in consensus sexual penetration with two 14 year olds and unlike B, A is married to his partner; B will be deemed to have committed a very serious offence which will call for severe punishment whereas A will be excused. In another situation where A is two years older than his victim, he will be excused from criminal liability whereas B who is three years older would not. If convicted, B will be severely punished because of the purported gravity of the offence.
    
15. In my view, with respect, the examples call for proper evaluation of the purported seriousness of the offence, the protection of young children and the community interest against factors the accused is entitled to in mitigating his conduct. It is also my firm view, that there can be no real justice and fairness if, for technical reasons; emphasis is given to personal and general deterrence aspects of sentencing while A gets off scot-free by operation of the same law.
    
16. The sentence of the Court I am about to impose is considered and arrived at from that perspective. I am also ably assisted by a comprehensive pre-sentence report and means assessment report the CBC Office has compiled. The reports will be read into the records.
    

Sentencing Policy, Principles and Guidelines

17. Except for offences with mandatory minimum or maximum penalties, the court has unfettered discretion to impose a term of years colloquially phrased, “appropriate sentence in all the circumstances of the case.” The term need not be exact or arrived at with scientific precision. The Court will have regard to basic principles of sentencing that each case must be sentenced on its own facts and that the maximum is reserved for the worst type case. In Stanley Sabiu v The State (2007) SC866 the Supreme Court after reviewing suggested guidelines for sexual penetration cases in the National Court cases of The State v. Pennias Mokei (No 2) (2004) N2635 and The State v. Ndakum Pu-Uh (2005) N2949, said:
    

“We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him.”

18. See, John Kalabus v The State [1989] PNGLR 195 for the proposition that, the maximum sentence is reserved for the worse type case of a particular crime.
    
19. It is useful to start with the maximum penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. As a guide, I prefer to use a sentencing ‘scale’ or ‘range.’ The use of ‘starting points’ gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered either inordinately low or manifestly excessive.
    
20. For the first category of cases under s.229A (1), the sentencing range or bracket may be from 3 years at the lower end to 15 years at the upper end with the range of 15 years to maximum of 25 years reserved for worst or near worst type case. The seriousness of the offence and personal circumstances of the prisoner from both latent and apparent facts and whether the case is contested or uncontested will decide where the case falls within the suggested sentencing ranges.
    
21. A sentence in the lower end of the scale in this category is justified in uncontested case with substantial mitigating factors like; very young age; advanced age; medical state of offender; small age gap and consensual nature of the offence. A term of imprisonment in the upper range may be justified where circumstances of aggravation are present and there is no mitigating factor.
    
22. Where the victim is under 12 years or circumstances of aggravation like, extreme young age of the victim or breach of trust or persistent sexual penetration are present, a starting point of 15 years has been suggested by the Supreme Court in Stanley Sabiu v. The State (supra).
    
23. In my view, the proper approach is to consider a term within the range of sentences for aggravated sexual penetration. The range will be slightly higher than that for category one offences. I suggest a general range of 7 years to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life jail may be justified.
    
24. Relevant factors to be taken into account as set out by Cannings J in The State v. Pennias Mokei (supra) and approved by the Supreme Court in Stanley Sabiu v. The State (supra) is a useful guide for this approach.
    
25. I have had regard to the case of Stanley Sabiu v. The State (supra) and note where the Supreme Court having reviewed the National Court cases of, 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 Kemai Lumou (2004) N2684; The State v Biason Benson Samson (2005) N2799; The State v Thomas Angup (2005) N2830, The State v Binga Thomas (2005) N2828, The State v.Kutetoa (2005) N2807, The State v. Alois CR 236/05 Kokopo, The State v. George Taunde (2005) N2807, The State v. Ndakum Pu-Uh (2005) N2949 and The State v. Ella Yasu (2007) CR 961/06, in respect of s.229A Criminal Code, and said:
    

“Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.”

26. With respect, the National Court cases referred do not represent the wider sentencing tendency of the courts. The sentences in respect of victims between 13 and 15 years of age also appear to represent huge leaps irrespective of the settled principle that an increase of the sentencing tariff must be done progressively and not by leaps and bounds: Tau Jim Anis v The State (2000) SC642.
    
27. A review of sentences in the repealed s.216 cases would assist in the formulation of sentencing guide for s.229A (1) cases. No such review that I know was ever undertaken by the Supreme Court. Too, the penalty for sexual penetration with a child under the age of 16 years in breach of trust now has the same penalty as for sexual penetration of a child under the age of 12. They both carry the maximum sentence of life imprisonment.
28. So, there must some correlation for sentences imposed in those two offences. This can be amply achieved by reviewing sentences in the repealed s.213 cases in formulating sentencing guides for the new s.229A (2) and (3) cases.
    
29. The short history of sentencing under the new Act shows instant massive leaps in the sentences imposed. With respect, this was done with no or little consideration for progressive increases in the two categories of sexual penetration offences. Nor were the sentences imposed supported by or formulated with aid of a sentencing pattern from the repealed s.213 cases (unlawful carnal knowledge of girl under 12).
    
30. The enthusiasm with which astronomical sentences were imposed is no doubt in response to the increased penalties in the new law. This has, with respect, unfortunately led to a seriously flawed sentencing guide. It has also resulted in an unlikely sentencing policy where the sentencing range for sexual penetration offences appears on par with and possibly above and beyond the range for homicide.
    
31. It is suggested and I agree that there should be some correlation between the sentences imposed for the offences of rape, robbery and murder as they all carry the maximum sentence of life imprisonment: The State v Binga Thomas (2005) N2828.
    
32. Sentences for murder and manslaughter cases should however be higher than robbery and sexual offences. I agree entirely with Bredmeyer J who, when comparing sentencing tariffs for manslaughter and rape cases in The State v Polin Pochalon Lopai [1988-89] PNGLR 48 held at p.49:
    

“... the tariff for manslaughter should be fixed slightly higher than for rape because death is a more serious consequence than the injury and trauma suffered in a rape ...”

33. In The State v Rex Lialu [1988–89] PNGLR 449 Amet J (then) also suggested that sentences for murder should be higher than the sentences for rape as death is a more serious consequence than rape, at p. 452:
    

“I consider that our sentences for manslaughter must reflect the serious view which the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community's view against unwanton (sic) killing. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery.”

34. In that case, his Honour imposed 6½ years for manslaughter. On appeal, the sentence was varied and reduced by the Supreme Court to 4½ years in Rex Lialu v The State [1990] PNGLR 487.
    

Present Case

35. In this case, the prisoner is indicted under s. 229A (1). No circumstance of aggravation is charged and the State does not allege or rely on any aggravating factor. Hence, this is a “simple” offence of sexual penetration. I have determined that the circumstances of this case do not call for a lengthy period of imprisonment in the middle or near the maximum term. In my view, this case is nowhere near the most serious or worst type of sexual penetration cases that the Courts and the general community are becoming all too familiar with these days.
    

Circumstances of the offence

36. The facts of the case suggested an ongoing relationship between a14 year victim and a 19 year old prisoner. The age gap is insignificant and sexual penetration was consensual. The parents only come to know of the relationship a day after the second incident.
    
37. Furthermore, as indicated earlier, the zeal to protect young children should not overcloud the defences available to the accused person with the onus on the accused, as intended by Parliament. Where the accused pleads guilty in a consensual relationship, the sentencing authority ought not to overstress the seriousness of the offence. The gravity of the offence should not outweigh the fact of two parties consenting to do an unlawful act for which only one of them will be punished in the absence of the defence of marriage under s. 229G of the Code. In this case Timothy Pinda will not escape punishment because he and the victim were not married.
    
38. In my view, putting the facts of this case and the law together, the serious culpability of the offence is immensely reduced.
    

Circumstances of the prisoner

39. Timothy Pinda is now 22 years. His other personal circumstances and attributes are set out in the pre-sentence report. It is unnecessary to repeat them. The assessment and recommendations in the pre-sentence report are in his favour. In essence, Timothy has a good personal and family background; this is his first offence and has had some schooling to vocational level. At the time of the offence, he was actively involved in church activities as a group in leader in his ward under a Catholic Church run program, “Liklik Kristen Komuniti” (LKK).
    
40. His plea of guilty supported by his expression of remorse have saved the Court and the State time and expenses to mount a trial. This has also saved the victim the trauma of having to give evidence.
    
41. A term of imprisonment must be imposed to reflect disapproval of the community for this type of behavior amongst young people. I propose to impose a term that will serve both the deterrent and punitive aspects of punishment.
    
42. I have also considered whether to order compensation in addition to what Timothy Pinda has paid in early reconciliation with the victim and her parents. He has offered to recompense the victim. On the other hand, the victim and her relatives only want to see him punished. I will not order compensation. However I will leave this open for the two parties to settle on the issue if that is to bring about lasting peace and harmony between the parties in the community.
    
43. I consider that Timothy is not a repeat or violent offender. Based on the strength of the presentence reports, the offender should be usefully punished with a suspended sentence.
    
44. Timothy Pinda is sentenced to 6 years imprisonment IHL. The whole term is suspended and that he be placed on five (5) year probation period on the usual terms under the Probation Act with further orders that:
    
    1. He shall within 48 hours, report to the Probation Officer;
    2. He shall Perform 200 hours of supervised community work at a worksite to be approved by the Court;
    3. He shall keep the peace and be of good behaviour at all times;
    4. He shall attend Church every weekend for service and worship and submit to counseling from the church clergy;
    5. He shall Join a Church fellowship group forthwith and participate in all its activities;
    6. If the occasion arises for payment of compensation, the amount be set at no more than K5,000;
    7. The order in paragraph 6 applies only during the period of probation and any compensation agreed on must be sanctioned by the Court upon a report from the CBC office;
    8. The probationer shall have a satisfactory report filed at the National Court Registry.
    9. The probationer shall appear before the Court as and when required for assessment of his progress on probation.
    10. The Probation Officer shall file a report on responses and progress of the probationer every three months and whenever the Court may order;
    11. The probationer shall, in the event any breach of these Probation Orders, be brought before the Court to show cause why he should not be imprisoned for the whole term of his sentence;
        

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused