N7339

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1388 OF 2017

THE STATE

V

BONNY GONGI PAULUS

Lae:	Numapo AJ
2018: 18, 20 & 27 April; 25 May & 20 June

CRIMINAL LAW – Particular offence – Sexual Penetration of a Child under 12 years – Guilty Plea – Aggravating circumstances and Mitigating factors – Breach of Trust and Violation of Relationship - Big age difference makes it an Aggravated Sexual Penetration – Sentencing Guidelines - Sentencing Discretion, ss. 229A (2) & 19 of Criminal Code – Prevalence of the Offence – Deterrence – Custodial Sentence.

Held:

(i)	Intention of the legislature is made clear for the offence of sexual penetration of a child under 12 years when it prescribed maximum penalty, subject to s.19, imprisonment for life under s.229A (2) of Criminal Code.

(ii)	The offence of sexual penetration involving under-age children is not only unlawful but is also morally wrong. 

(iii)	Offence involves a breach of trust and violation of relationship between the offender and the victim.

(iv)	The big age difference between the offender and the victim makes it an aggravated sexual penetration.

(v)	Sexual penetration of under age children and other sexual offences of similar nature are becoming too prevalent in the country in recent times. 

(vi)	A sentence with a deterrent effect is needed to send a clear message to others. 

(vii)	Prisoner sentenced to Ten (10) years imprisonment.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
State v David Awi (2016) N6563
State v John Ritsi Kutetoa (2005) N2814
The State v Raumo [2007] N4983
State v Sabiu [2005] N3654
State v Tiama Esrom (2006) N3054
Sabiu v The State (2007) SC866
The State v Engi Hendrix Cr. No 485 of 2012
The State v Jessie Chadrol (2011) N4648

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE
20th June, 2018

1.    NUMAPO AJ:  This is a decision on sentence. The prisoner pleaded guilty on the 18th of April 2018 to one count of sexual penetration of a child under the age of 12 years. Contrary to section 229A (1) (2) of the Criminal Code Act Ch. 262.

A.	BRIEF FACTS

2.   The facts giving rise to the charge against the prisoner is that on the 21st of June 2016 between 7:30pm and 8:00pm the victim was at home. The prisoner called the victim over to him and gave her K2.00 to go and buy his tobacco roll. The prisoner was under the influence of liquor at that time. The victim bought the tobacco roll and returned back and gave it to the prisoner. He then gave her the change from the K2.00 and took her into the kitchen of her family’s house and told her to suck his penis but the victim refused. He then sat her on his laps and pulled her trousers down and inserted his fingers into her vagina. Later he pulled out his fingers and inserted his penis into the victim’s vagina. The victim’s mother called out to the victim but the prisoner covered her mouth preventing her from answering. The victim then came out of the kitchen and met her mother in the doorway. The mother was also surprised to see the prisoner coming out of the kitchen. The victim told her mother what the prisoner did to her.

B.	MEDICAL REPORT

3.  The medical examination carried out on the victim revealed the following:

(a)	Vulva – Dirt particle noted at 3 o’clock position of the outer vulva; abrasion was also noted at 3 o’clock position of the outer vulva; redness of the entire inner vulva.

(b)	Hymen – Laceration noted at 6 o’clock position of the hymen.

(c)	Vaginal Opening – Widening of the vaginal opening.

4.  The medical report is consistent with what the victim told her mother.

C.	CHARGE

5.   Section 229A (1) (2) of the Criminal Code 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 is guilty of a crime.
Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.
(2)	If a 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. 

D.	CATEGORIES OF PENALTIES

6.   There are three categories of penalties prescribed under s 229A for the offence of sexual penetration. The first category is under Subsection (1) which provides the maximum penalty of 25 years if the victim is under 16 years of age. The second category under Subsection (2) applies to aggravated circumstances where the victim is under the age of 12 years. The maximum penalty under the provision is life imprisonment. The final category is under Subsection (3) which provides for life imprisonment where there is a relationship of trust, dependency and authority regardless of whether the victim is under the age of 16 or 12 years.
 
7.   The present case falls under the second category in that the victim is under the age of 12 years, being 8 years old at the time of the offence. The maximum penalty, subject to s. 19 of the Criminal Code, is life imprisonment.

The Supreme Court in Goli Golu v The State [1979] PNGLR 653 held that maximum penalty is reserved for worst type offence. This was a ruling on a murder case which eventually became trite law and apply to other offences as well. 

8.  For sexual penetration the following factors must be present for it to be considered as a worst case: 

(i)	Where the offender illustrates a sadistic tendency in sexually penetrating several children at once.

(ii)	Where the victim is kidnapped and sexually penetrated for a number of days.

(iii)	Where the single victim is sexually penetrated by more than one offender.

(iv)	Serious physical injuries suffered by the victim that is considered permanent and may result in a long term disability.

(v)	The immense psychological trauma suffered by the victim that has the potential to permanently affect her normal life.

(vi)	Serious breach of trust and violation of relationship and dependency.

(vii)	Where an offender is a repeat offender with prior convictions of serious offences such as murder, rape or armed robbery.

9.   Both the State and Defence submitted that the present case does not fall under the category of worst case and asked the court to consider a penalty less than the prescribed maximum penalty under s. 229A (2) of the Criminal Code.

E.	AGGRAVATING AND MITIGATING FACTORS AND CIRCUMSTANCES
	
10.   The aggravating and mitigating factors and circumstances of the present case are as follows:

1.	Aggravating factors and circumstances:

(i)	Big age difference between the prisoner and the victim - The prisoner was 25 years old and the victim was 8 years old at the time the offence was committed, an age difference of 17 years.

(ii)	Breach of trust and violation of relationship – The prisoner was looked after by the victim’s family after his parents passed away and treated him as one of their own children over a period of 10 years. He repaid their generosity and kind gesture by committing a serious crime against their daughter.

(iii)	The offence of sexual penetration of a child is becoming too prevalent as reflected in the number of case laws cited by Counsels.

2.	Mitigating factors are:

(i)	Prisoner is a first time offender.

(ii)	He pleaded guilty early.

(iii)	He was very remorseful and apologized for what he did.
 
(iv)	He co-operated well with the Police and admitted to committing the offence at the earliest opportunity in his Record of Interview.

(v)	No weapon was used.

All in all, I find that the aggravating factors and circumstances outweighs the mitigating factors. 

F.	APPROPRIATE SENTENCE 

11.   In deciding an appropriate sentence the court must address its mind to four (4) overarching principles on sentencing: Firstly,  ‘’purpose of sentence’’ - to achieve an outcome that reflect the intent of the law for such crimes; secondly, the “principles of sentencing”- (i.e. deterrence (general & specific), retribution, rehabilitation and restitution)- the established principles that guides the court to impose a sentence that fits the crime and also reflect the views of society towards such crimes; thirdly, “sentencing options”- range of options available to court including non-custodial sentences and finally, “uniformity in sentencing” - to ensure parity and consistency in the sentencing process based on case precedence and current sentencing trend for like cases.

12.  On the first principle, the intention of the legislature is made clear for the offence of sexual penetration of a child under the age of 12 when it prescribed maximum penalty, subject to s 19, imprisonment for life under s 229A (2) of the Criminal Code.

Secondly, with respect to the principles of sentencing-deterrence (general & specific); retribution and rehabilitation) it calls for careful observations by the court about the effects of the punishment itself and the impact it would have both on the offender and the society as a whole. The offence of sexual penetration of under age children is not only unlawful but is also morally wrong. This type of offence and other sexual offences of similar nature are becoming too prevalent in the country in recent times. The country has lost its moral compass and this has contributed to the general break down of law and order. The court must impose a sentence that has a deterrent effect to both the offender himself and the other would-be offenders that there is no place for sexual deviants in our communities. Those who commit the offence will be locked away for a long period of time. 

Thirdly, on the sentencing option, I have considered the degree of the seriousness of the offence. The big age difference between the prisoner and the victim makes this an aggravated sexual penetration. There was a breach of trust and violation of relationship. The prisoner took advantage of the victim’s tender age to satisfy his own sexual lust and gratifications. The court must impose a sentence that is adequate and proportional to the gravity of the offence. In the present case, I am of the view that a punitive custodial sentence is the most appropriate penalty. Non-custodial sentence is not an option given the seriousness of the offence.  

Finally, with respect to the uniformity on sentencing, I have been referred by both Counsels to a number of case laws on penalty for this type of offence to assist me in arriving at a decision that is consistent and on par with the current sentencing trend in similar cases. I refer to some of them below. 

(i)	The State v Engi Hendrix Cr No. 485 of 2012

13.   The offender, Engi Hendrix was charged with one count of sexual penetration of a victim aged 5 years old in a position of trust and dependency. In that he was an uncle to the victim and had lived with her and her parents at their house. 

On a guilty plea, he was sentenced to 10 years which was partial suspended by 5 years.

(ii)	The State v Raumo [2007] N4983

14.  The offender who was 25 years old sexually penetrated the victim aged 6 inserting his finger into her vagina. He took her to the river then to a breadfruit tree. He told her to lie down and he inserted his finger into her vagina. He also attempted to penetrate her with his penis.

He was sentenced to 10 years. None of his sentence was suspended.

(iii)	State v Sabiu [2005] N3654

15.  The offender pleaded guilty to sexually penetrating a 6 year old boy by inserting his penis into his anus. The offender was the victim’s maternal uncle. He met the victim and his friends in the bushes and grabbed the victim and carried him away to a secluded area. He cried and struggled but the offender overpowered him. The other children ran away in fear. He then forced the victim to bend down his head and sexually penetrated him from the back. The victim suffered great pain and bled profusely. The offender tried to justify his actions that he raised the boy’s mother who was his sister from childhood until she got married. He wanted bride price for her but did not receive any bride price so he attacked the victim in the way he did. The court imposed 17 years on him. The offender appealed (Sabiu v The State (2007) SC866) but the Supreme Court dismissed the appeal.

(iv)	State v David Awi (2016) N6563

16.  The offender pleaded guilty to sexually penetrating a 6 year old girl with whom he had an existing relationship of trust. The offender was 22 years old at the time of the offence. There was an age difference of 16 years. The victim also contracted sexually transmitted disease. The offender was sentenced to 10 years imprisonment.

(v)	State v John Ritsi Kutetoa (2005) N2814

17.  The offender was 39 years old. The victim was 10 years old and his step-daughter. There was a breach of trust. Offender was sentenced to 17 years imprisonment.

(vi)	State v Tiama Esrom (2006) N3054

18.   The offender pleaded guilty to sexual penetration of a 9 year old girl who was his granddaughter. The offender was 50-60 years old. There was a big age difference and breach of trust. He was sentenced to 12 years imprisonment.

G.	PRISONER’S BACKGROUND AND ALLOCUTUS

19.  The prisoner is a single young man. He is not related to the victim or her family. He was taken in and looked after by the victim’s family when both of his parents passed away ten (10) years ago. He has since been living with the victim and her family at Nine (9) mile settlement. He expressed remorse and told the court that he was very sorry for what he did. He has no money to compensate the victim and said he will return back to his village in Usino Bundi after he served his time in prison. He does not wish to stay in Lae as he has no place to live. He asked the court to be lenient on him. 

H.	STARTING POINT ON SENTENCING

20.  The Supreme Court in Sabiu v The State (2007) SC866 held that, for sentencing purposes, the starting point in sexual penetration of victims under the age of 12 years is 15 years imprisonment. The Supreme Court upheld an appeal by the appellant against a sentence of 17 years imposed on him after he pleaded guilty to sexually penetrating a child under the age of 12 years. The Supreme Court held that:

“We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.”

21.   However, in The State v Jessie Chadrol (2011) N 4648, his Honour Batari, J. held that the proper approach to deal with sexual penetration cases was to set a sentencing range as opposed to a definite starting point. His Honour then proposed a sentencing range for category two cases (where victim is less than 12 years) at 7 – 25 years generally and 25 years to life imprisonment for near worst to worst cases. His Honour held that:

“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. 
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 to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life may be justified.”

22.   There are two opposing views with regard to the starting point on sentencing. One by the Supreme Court in Sabiu (supra) where it stated that the starting point should be 15 years in cases involving victims under the age of 12 years whilst the National Court proposed a sentencing range of between 7 – 25 years for victims under 12 years rather than a definite starting figure. I agree with the approach taken by Batari, J in State v Chadrol (supra) as it allows the court more flexibility in deciding the appropriate starting point depending on the factual circumstances of the case being; the aggravating and mitigating factors and circumstances including any other special factors or features peculiar to the case itself that may require a specific consideration by the court. I intend to adopt this approach in this case.

I.	PRE-SENTENCE REPORT

23.   In the Pre-Sentence Report, the Probation Officer recommended for a partial suspension of the prisoner’s sentence and that he is put on a good behaviour bond. The prisoner is young and a first time offender and sending him to prison will not assist with his rehabilitation. Although no community leader from the Nine (9) mile settlement was interviewed, the Probation Officer is of the view that there will be no difficulty with supervision if the prisoner is placed on probation.

24.  However, at the outset of the same report the prisoner mentioned to the Probation Officer that he has no intention to live in Lae after completing his prison term. He wants to go back to his village in Usino Bundi in the Madang Province. He is too ashamed to go back and live with the victim’s family at Nine (9) mile. He has no money to compensate the victim. 
 
25.   I do not consider the prisoner as a suitable candidate for probation and therefore, will not consider a suspended sentence for him.

J.	DECISION

I sentence the prisoner to Ten (10) years imprisonment.

I deduct One (1) year for the pre-trial custody period.

Prisoner to serve the balance of Nine (9) years imprisonment 

No suspended sentence.

Orders accordingly,

Public Prosecutor:	 Lawyers for the State
Public Solicitor:  	 Lawyers for the Applicant