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State v Peter [2017] PGNC 49; N6672 (16 February 2017)

N6672

PAUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1420 OF 2015

BETWEEN:

THE STATE

V

DAVID PETER
Offender

Mendi: Ipang, J

2016: 14^th October

2017: 16^th February

CRIMINAL LAW– Sentence – Criminal Code Act – Sexual Penetration s.229A (1) (3) - the offender who is the cousin brother of the victim’s father sexually penetrated the victim’s anus.

Cited Cases:
State v. Tangi ( 2012) PGNC 280 N5075
State v. Rome (2007)
State v. Charlie Pupuka (Unreported) 2007
The State v. Thomas PGNC 189; N2828

Counsel:
S. Luben, for the State
C. Koek, for the Offender

DECISION ON SENTENCE

16^th February, 2017

1. IPANG J: This is the decision on sentence for the offender who pleaded guilty to one count of sexual penetration contrary to section 229A (1) & (3) of the Criminal Code Act as amended.
   
2. The offender is the cousin brother of the victim’s father. On the 9^th of July, 2015 the victim’s parents spent the night at Wagia Village to watch the third State of Origin Test. The victim who will be referred to as TG was sleeping alone at his home at Pangia Village. At or around 1:00AM in the morning, the offender went into the house and covered TG’s mouth with his hand. The offender pushed TG’s head into the blanket. TG struggled to free himself but the offender overpowered him. The offender pulled TG’s trousers down and sexually penetrated TG by inserting his penis into TG’s anus. Early next morning, TG woke up and saw the offender lying in bed near him. He recognised the perpetrator as David Peter, his father’s cousin brother. TG left the house and went to look for his parents. He reported the incident to his parents. They all returned to the house and found the offender still naked in bed. They took the offender to Mendi Police Station. At the time of the incident, TG was under the age of 16 years and the offender was in a relationship of trust, authority and dependency towards the victim TG.
   
3. The offender was indicted and pleaded guilty to an offence under section 229A of the Criminal Code Act as amended. This provision reads;
   

“229 A. 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.

(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.”

4. The maximum prescribed penalty is life imprisonment however, subject to section 19, of the Code, a lesser term of years can be imposed. The maximum penalty is reserved for worse types of cases.
   
5. The Antecedent Report recorded no prior convictions. In Allocutus, the offender said sorry to God and to the victim. He also said sorry to this Court and asks to have mercy on him.
   
6. The offender is 31 years of age and from Kongi Village, Mendi, SHP. He is the 4^th born of the six (6) children. His mother is deceased and his father is still alive. He is a member of Pentecostal Church. He was a Security Guard. He has been remanded in custody for one (1) year and four (4) months.
   
7. The following are mitigating factors; plea of guilty, first time offender, expressed remorse, husband and a father, co-operated with the Police and was arrested on the same day, lone attacker, no weapons were used. In aggravation, break of trust, no compensation paid and prevalent of this offence.
   

Case Precedent

8. In State v. Thomas PGNC 189; N2828. The offender pleaded guilty on one count of sexual penetration contrary to section 229 A (1) (2) of the Criminal Code Act (as amended). The offender was sentenced to 12 years imprisonment minus the period spent in custody. In State v. Tangi (2012) PGNC 280; N5075, this was the case of persistent sexual intercourse and a breach of trust. There was a trial, the offender was sentenced to nine (9) years imprisonment of which five (5) years was suspended and he was ordered to pay 100 fathoms. Prisoner was to serve four (4) years imprisonment.
   
9. In State v. Rome (2007), the prisoner pleaded guilty on two (2) counts of sexual touching contrary to section 229B of the Criminal Code Act as amended and on one (1) count of sexual intercourse contrary to section 229A of the Criminal Code Act as amended. The victim was ten 10 years old and the offender was 31 years old. The offender was sentence to 12 years imprisonment for the 1^st count, 3 years imprisonment for the 2^nd count and 12 years imprisonment for the 3^rd count. The Court ordered the sentences for the 2^nd and 3^rd counts to be served concurrently to the 1^st count minus the period spent in custody.
   
10. In State v. Noel 2012 PGNC 20; N4664, the prisoner pleaded guilty to one count of sexual penetration contrary to section 229A (1) (2) of the Criminal Code Act as amended. The victim is a 9 year old boy and the prisoner is a 21 year old man. The prisoner was sentenced to 9 years imprisonment.
    
11. Ms. Koek for the prisoner submitted that the offence was committed only once and without use of weapons. Counsel submitted for 8 years sentence minus the custody period and that the balance of the sentence be wholly suspended. Ms. Luben for the State submitted that the prisoner is a married man with one child. State submitted for 9 years sentence to be imposed.
    
12. The Pre-Sentence Report (PSR) compiled for the prisoner recommended the prisoner to be a suitable candidate for probation. The report revealed the prisoner has not paid compensation to the victim but if a non-custodial sentence is given, the prisoner would raise money for payment of compensation.
    
13. The offence of sexual penetration is prevalent. In this instant case, there exist relationships of trust as the offender is the cousin brother of the victim’s father. The offender was under influence of alcohol and overpowered the victim. The offender has pleaded guilty and shortens State’s time for putting up a trial.
    
14. I consider the case not to be a worse type of case so that maximum penalty be imposed. So subject to section 19 of the Code, a lesser term of penalty be imposed.
    
15. I sentence the offender to 8 years minus 1 year 4 months being for time spent in custody. This will leave the offender to serve five (5) years imprisonment at Buiebi CIS. A Warrant of Commitment will be issued in this term.
    

Sentence accordingly,

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Prisoner