N7301

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1643 OF 2016

THE STATE

V

BIRE BONNIE

Kibil - Duke of York: Anis J
2018:  15th, 22nd May and 21st June

CRIMINAL LAW – Sentence on guilty plea - section 229A(1) & (3) of the Criminal Code Act Chapter No. 262 – sexual penetration of a child under the age of 16 years old – child 12 years old – breach of trust, authority and dependency – severity of sex offences against children discussed – appropriate sentence – pre-sentence report reflects negatively against the prisoner – victim wants prisoner to be imprisonment for a long time

Cases cited:

State v. Vincent Fong (2016) N6418
State v. Benjamin Makile (2016) N6251
Public Prosecutor v. Tom Ake [1978] PNGLR 469
Saperus Yalibakut v. State (2006) SC 890
Joe Nawa v The State (2007) SC1148
State v. Peter Yawoma (2001) N2032
State v. Lucas Dantale (2013) N5387
State v. Arnold Kulami (No. 2) (2009) N4473
State v. John Ritsi Tutetoa (2005) N2814
State v. William Patangala (2006) N3027
State v. Kigl Philip Petrus - CR No 618 of 2007

Counsel:

Ms S. Luben, for the State
Ms J. Ainui, for the Accused

SENTENCE

21st June, 2018

1.	ANIS J:	This matter was tried at Kibil in the Duke of York Islands of East New Britain.  The prisoner pleaded guilty to one count of sexual penetration of a child under the age of 16 years, that is, contrary to section 229A(1) & (3) of the Criminal Code Act Chapter No. 262 (CC Act).  

2.	This is my ruling on sentence.

BACKGROUND

3.	I will refer to the victim using the initials BB.  The indictment to which the prisoner has pleaded guilty, states that the prisoner comes from Mioko Palpal village of Duke of York in East New Britain Province.  It states that on the 26th day of June 2016, at Navunaram village, in Papua New Guinea, the prisoner had engaged in an act of sexual penetration with BB.  It states that at that time, BB was a child who was 12 years old.  It states that the prisoner at that time had inserted his penis into BB’s vagina.  It states that at that time, the prisoner was in a position of trust, authority and dependency over BB because he was her step-father.  

4.	The supporting facts that had been presented by the prosecution together with the indictment, may be summarised as follows.  The prisoner married BB’s mother when she was 2 years old.  On 26 June 2016, on the day of the incident, the family had rented and lived at a property at Navunaram village in Duke of York.  BB’s mother was away at that time.  That night, the prisoner entered BB’s bedroom.  BB was asleep with one of the prisoner’s daughters.  The prisoner undressed BB.  The prisoner licked BB’s vagina and after that he inserted his penis into BB’s vagina.  BB woke up after that and saw the prisoner.  BB reported the incident to her mother on the next day when she arrived at their home.  At the time of the incident, BB was under the age of 16 years in that she was 12 years old.  At the time of the incident, the prisoner was in a position of trust, authority and dependency towards BB because the prisoner was BB’s step-father. 

THE PRISONER

5.	The prisoner is 43 years old.  He has six (6) children.  Three (3) of the children were from his former marriage whilst the other three (3) are from his current marriage.  The prisoner did not receive any proper education.  He has never been formally employed.  He has been a villager all his life.

6.	The prisoner has no prior conviction record.  This appears to be his first recorded offence.

7.	At allocatus, the prisoner had these to say.  He said sorry to the Court and to BB.  He said that this was his first time to be in Court.  He said that the complainant had agreed with him to accept compensation.  He said that he has paid a sum of K1,650 as compensation.  He asked the Court for its mercy upon him.  He asked that the Court should put him on probation.

8.	In the pre-sentence report of the prisoner, the prisoner also had these to say.  He said that he believed that it was BB that had initiated the incident.  He said BB had imitated these sexual acts towards him and he claimed that she had possessed them from her mother.  He blamed BB’s mother or his current wife.  He said that there were many tales or rumours about BB’s mother in the village.  He described her as a “home wrecker”.  Turning his attention back BB, the prisoner said that BB was already sexually active.  He said he had observed that from his sexual encounter with BB.  He said that he believed that it was not BB’s first sexual encounter with him.  In conclusion, the prisoner maintained that he never initiated the sexual acts upon BB.  

PRESCRIBED PENALTY

9.	Section 229A(1) & (3) 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 Subsections (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.

10.	The maximum sentence applicable to this prisoner based on his plea to the indictment, is life imprisonment.  

PROSECUTION

11.	The prosecution submits that life imprisonment should be reserved and applied only for the worst type of offence committed under section 229A of the CC Act.  The prosecution submits that this case was serious but that it does not fit into the worst type of cases category under section 229A.

12.	The prosecution submits that the Court should take into account these notable aggravating factors:  Firstly, it says that this was a case where a serious breach of trust had occurred.  It says that BB was the prisoner’s step-daughter at the material time.  Secondly, the prosecution says that the offence had occurred at the victim’s home.  Thirdly, the prosecution submits that there was a big age gap at the time when the offence was committed, that is, an age gap of 31 years.  And finally, it submits that despite the fact that the prisoner has pleaded guilty to one count of sexual penetration of a child under the age of 16 years, the evidence has shown a pattern sexual abuse by the prisoner upon BB.  Let me deal with this final consideration before I move on.  The prosecution’s claim of a pattern of sexual abuse was derived from the testimony of the prisoner’s wife which is contained in the pre-sentence report.  I reject that as an aggravating factor.  The said information is not evidence that is formally before the Court.  It is derived from the pre-sentence report.  Information that is derived from a pre-sentence report is only limited to the form or type of punishment the Court may impose upon a prisoner.  Information derived therein cannot be considered like evidence that may influence or affect the actual sentence the Court may impose upon a prisoner.  See cases:  State v. Vincent Fong (2016) N6418; State v. Benjamin Makile (2016) N6251; Public Prosecutor v. Tom Ake [1978] PNGLR 469; Saperus Yalibakut v. State (2006) SC 890; Joe Nawa v The State (2007) SC1148; State v. Peter Yawoma (2001) N2032.  I will also give the prisoner the benefit of the doubt given the fact that the prisoner has only pleaded guilty to the indictment and its supporting facts and nothing else.

13.	The prosecution submits that punitive custodial sentence is required in this case.  It says the pre-sentence report shows that the prisoner has shown no sense of responsibility for his actions.  The prosecution submits that the Court should consider BB’s statement in the report.  Again, I reject the reason given by the prosecution to make the argument on imposition of punitive custodial sentence.  I give the same reasons as I have stated above at paragraph 12 of my judgment regarding matters that are derived from a pre-sentence report.  But of course, such a consideration would be relevant when it comes to the Court considering the type or form of punishment the Court should impose upon the prisoner.

14.	In conclusion, the prosecution submits that the Court should consider a sentence range between 10 to 15 years to impose on the prisoner.

DEFENCE

15.	The defence submits the mitigating factors as follows.  Firstly, it points to the fact that the prisoner has pleaded guilty.  Secondly, it says that the prisoner in pleading guilty has saved the Court time and resource.  Thirdly, it says that no force was used by the prisoner against BB at the time of the sexual assault.  And finally, the defence submits that the prisoner has paid compensation of K1,000 and 3 fathoms of shell money.  

16.	The defence submits the aggravating factors as follows.  Firstly, it says that the prisoner was closely related to BB’s family in that he is BB’s step-father when the prisoner committed the offence.  Secondly, the defence says that there was breach of trust, authority and dependency.  And finally, the defence says that there was a big age gap of 31 years.

17.	The defence submits that a sentence of 10 years imprisonment should be imposed on the prisoner before the Court considers the mitigating factors and impose a final appropriate sentence.

ASSESSMENT

18.	I concur with submissions by counsel regarding the maximum penalty.  I will not consider whether to impose or whether not to impose life imprisonment for this prisoner.  The penalty for an offence under section 229A(1) of the CC Act ranges from 25 years or less.  Because life imprisonment is now off the table so to speak for this case, the range of sentence is 25 years or less or 25 years or more.  

19.	I have considered the case authorities submitted by counsel.  I will use comparable case law to assist me in sentencing.  The first case I find relevant is the case of State v. Lucas Dantale (2013) N5387.  The prisoner pleaded guilty to two (2) counts of sexual penetration under section 229A(1) & (3) of the CC Act.  The prisoner was a teacher aged 30 years and the victim was aged 13 years.  He was sentenced to 12 years imprisonment.  The second case is the case of State v. Arnold Kulami (No. 2) (2009) N4473.  The prisoner was 50 years old.  He was found guilty of sexual penetration of her niece who was 6 years old at that time contrary to section 229A(1) of the CC Act.  He was sentenced to 17 years imprisonment.  The third case is the case of State v. John Ritsi Tutetoa (2005) N2814.  The prisoner was 39 years old.  He was found guilty of sexual penetration of a girl under the age of 16 years contrary to section 229A of the CC Act.  The victim was the step-daughter of the prisoner.  She was 10 years old at the time of the incident.  He was sentenced to 17 years imprisonment.  

20.	Any form of sexual offence that is committed on a child is a very serious matter.  In my view, children are the cradle of a society; they (i.e., children) are the building blocks of society itself.  Their evolvement or experiences in societies that they live in will eventually shape or determine the type of societies, or a province, or a nation as a whole.  Parliament has acknowledged the significance of this, amongst others, in passing recent laws, and I make particular reference to Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002.  The said Act now forms part of the CC Act.  Late Justice Lenalia in the case State v. William Patangala (2006) N3027, quoted a passage from the Parliament’s Hansard dated 11 October 2001.  At the presentation of the said Act which was then a bill, the responsible Minister then, Dame Carol Kidu, stated these:

Papua New Guinea’s Criminal Code, like most Commonwealth countries, is based to a large extend on the British Common Law. Many of the key principles contained in modern procedures on rape and sexual violence were developed in England in the 1600s. Accordingly, changes have been made to the Legal Codes of many Commonwealth countries to bring a basic human rights approach to dealing with sexual violence in society. In 1995, Papua New Guinea ratified the United Nations Convention of All Forms of Discrimination and Violence Against Women. As a nation we have both a regional and international commitment to address this important issue. At both the regional and international level, the general consensus is that women and girls are the major victims of sexual violence. But it is recognized that males can also be victims and therefore the legislation should not be gender specific. The amendment before Parliament applies to both men and women and girls and boys. Mr. Speaker, we as parliamentarians must speak out loudly against all violent sexual assault because they not only can cause us physical injury; they also destroy our self-dignity and pride. Declaring act as criminal acts gives us a moral denunciation of the conduct unacceptable. This can have a very significant impact on shaping the `changing values of our young nation. We as parliamentarians have an extremely important role to play in this regard; passing, drafting or clarifying laws that criminalize violence particularly against women and children but also to all violence is an important step in re-defining the limits of acceptable behaviour.

(Bold letters and underlining are mine)

21.	Courts have since enforced the Act and punished wrong doers over the years.  My brother judges have, in their judgments, highlighted the significance of protecting children against sexual assaults.  These are reflected in the National and Supreme Court decisions.  As an example, I would refer to Justice Makail’s decision in the case of State v. Kigl Philip Petrus - CR No 618 of 2007 (Unnumbered & Unreported Judgment of 10th April 2008).  His Honour stated and I quote:

“Sexual abuse of very young children and the women in this country has been adequately addressed by the Parliament by passing the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 which came into effect on 10 April 2003.  The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even “child prostitution” and “child pornography”. 

It is hoped that by imposition of severe penalties, the public may be made aware that, there is a law which caters for the interest of the young victims as well as the women folks who may suffer from any form of physical sexual abuse. The worse form of sexual abuse is the type that takes place within the home environment between members of the same family or the extended family unit as was the case in the instant case. It is for this reason that the legislature included in section 229B (5) the situation where there is a breach of the relationship of trust, authority and dependency”.

SENTENCE

22.	I consider that the appropriate sentence range for this case should be between 25 years and more but less than life imprisonment.  I would have applied that range (i.e., from 25 years) had the prisoner been convicted after a trial.  Because the prisoner has pleaded guilty to the offence, I will start with a potential sentence term of 15 years. 

23.	I will also take into account the other mitigating factors namely, (i) compensation payment made, (ii) the prisoner’s admission thus preventing BB to relive or retell the despicable incident and (iii) the want of use of force in relation to the incident.  I will allow a deduction of 4 years.  This reduces the potential or draft sentence term to 11 years.

24.	I find the aggravating factors serious.  The prisoner is closely related to BB in that he is her step-father.  Secondly, the event occurred at their family home.  Thirdly, there was a serious breach of trust, authority and dependency.  Fourthly, there was a big age gap difference of 31 years between the prisoner and BB at the time of the offence.  Considering these factors, I will add 6 years onto the potential sentence of 12 years.  The potential sentence term now stands at 17 years.

25.	Should I allow partial suspension of sentence with imposed probation conditions?  Let me refer to the pre-sentence report.  The report looks bad for the prisoner.  The notable findings are as follows.  Firstly, it states that the prisoner did not show any remorse for his actions.  Secondly, it states that the prisoner does not seem to fully understand the enormity of the offence that he has committed.  Thirdly, the prisoner blames BB as the instigator to the offence to which he has committed and partly also upon his wife.  BB was interviewed by the probation officer.  BB does not want the prisoner any way near her.  She has called for the prisoner to be locked away for a long time.  BB does not want to prisoner to return early to live with his wife who is BB’s mother whilst she is still living with her and attending school.  The report does not recommend the prisoner as a suitable candidate for probation.

26.	Having considered these, this is my ruling.  I refuse to grant any suspended sentence term or probation for this prisoner.

THE ORDERS OF THE COURT

27.	I sentence the prisoner to 17 years imprisonment in custody in hard labour.  Any time spent in custody shall be deducted from his sentence.  The prisoner’s bail money shall be refunded forthwith.

The Court orders accordingly.

____________________________________________________________
Office of the Public Prosecutor:	Lawyers for the State
Office of the Public Solicitor:	Lawyers for the Accused