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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. N0. 391 OF 2000
THE STATE
V
GABRIEL KUMANGKENA
Palmalmal: Susame, AJ
2018: 14, 17 August
CRIMINAL LAW – Sentence On Plea- Particular Offence – Sexual Penetration Of A Child Under 16 Years – S 229a (1)
Criminal Code (Offence And Crime Against Children) Act 2002- Prisoner 22 Years Old- Female Child Aged 15 –
CRIMINAL LAW – Sentencing Considerations In Sexual Offences Case –
Sexual Relations Between An Uncle & Niece- Breach Of Existing Relation Of Trust, Authority Or Dependency -Several Acts Of Sexual
Penetration Of Vagina By Penis – Act Consensual– Prisoner Acted Alone - No Use Of Weapons – No Threats Or Physical
Injuries– No STI Contracted – No Pregnancy -Compensation Paid & Reconciliation Done – 6 Years Head Sentence
Considered – 4 Years Effective Sentence Wholly Suspended Upon Released On Probation.
Cases Cited
The State v Eddie Trosty (2004) N2681
The State v Biason Benson Samson (2005) N2799
The State v Leo Sebastian CR 613 of 2009, 9 September 2014
Stanley Sabui v The State [2007] PGSC 24; SC866
The State v Pennias Mokei (N0.2)
The State v Kemai Lumou (2004) N2684
The State v George Taunde (2005) N2807)
The State v Rudolf Dennison CR. N0. 992 of 2016 (dated 28 July 2018)
The State v Paul Dominic [2016] PGNC 78; N6290
Counsels
Miss. Batil, for the State
Mr. Tunuma, for the Prisoner
DECISION ON SENTENCE
17th August, 2018
1. SUSAME AJ: On plea you were convicted on 14 August 2018 for the offence under s.229A (1) of Criminal Code (Offences and Crimes Against Children) Act 2002. In that you sexually penetrated a 15 year old girl by introducing your penis into her vagina, a child under the age of 16 years. You are in court today to receive your sentence.
2. A brief history of the case. Indictment was presented to the court on 8 February 2001, initially charging the offender for the crime of unlawful carnal knowledge of a girl under 16 years of age. On application by the State that charge was amended to the one offender was convicted for.
3. Case never progressed in 2001 after presentation of indictment due to the offender absconding bail. A bench warrant dated 14 August 2001 was issued by this court for his apprehension. Police had never executed the warrant to have offender arrested sooner and brought to court. The case remained on the pending warrant list for 18 years.
4. Various correspondences were issued by the State Prosecutor’s Office, Kokopo to all relevant authorities to locate all offenders on the Pomio Warrant list to have them brought to court during its circuit runs. Few occasions I raised the issue with the State Prosecutors during the sittings in Kokopo and also in my last circuit to Palmalmal as these were pending cases and must be completed. Nothing progressed so on 09 August 2018 directions were issued to the State Prosecutor on circuit, Officer in Charge of Police at Palmalmal and Police personals on circuit to locate the offenders where they are believed to be living and bring them to court before the circuit ended.
5. That had positively resulted in the offender being arrested and warrant returned and endorsed by the court.
OFFENCE
6. The offence is provided in section 229 which 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 Subsection (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.
FACTS
7. Facts upon which you were convicted are as follows. The girl was the daughter of your wife’s biological sister. She was your wife’s little niece. Your wife’s sister gave the girl away to you both to take care after she broke up marriage with her husband. You both were her guardian.
8. Unknown to your wife on an unspecified date the girl was alone and you enticed her to have sex with her. The girl never protested. She gave in to your enticement and you both had sexual intercourse. Thereafter you both continued to engage in sexual intercourse on various occasions until the girl’s little sister caught you both in the act on 26 August 1999 between 4.00pm and 5.00pm at your residence. That was when your secret love affair with the girl became known to other members of the family, subsequently leading to your arrest.
ALLOCUTUS
9. Before the court heard submissions from the lawyers this is what you stated. It was your first time in court. You expressed remorse for what you did. You have already paid K3000.00 compensation to the victim and has reconciled with her. You asked the court to be merciful on you and place you on probation.
10. Court then heard submissions from lawyers. Mr. Tunuma representing you made an oral submission with leave of court. He provided your personal particulars, factors in mitigation and aggravation. He submitted mitigating factors outweigh aggravating factors. The case was not so serious and worst type that should attract maximum life sentence and asked the court to invoke s.19 sentencing discretion to impose a lesser penalty.
11. He made reference to the following cases for guidance:
12. With regard to the reports Probation Officer had filed Mr. Tunuma asked the court to take note of the difficulty of the Probation Officer in obtaining victim’s views which had not been captured in the report. But the victim had confirmed payment compensation and reconciliation has been done. Mr. Tunuma submitted specific amount of compensation has been fixed but total compensation of K3,319.00 in cash and kind. If court is to order additional amount of compensation offender to be given adequate time to pay.
13. He submitted sentence imposed should range between 12 months to 36 months. His final plea on your behalf is that court sentence imposed within that range to be wholly suspended upon you placed on probation with conditions.
14. Miss. Batil filed a written submission. She referred the court to be guided by sentencing considerations in sexual offences cases set in the Supreme Court case of Stanley Sabui v The State (2007) PGSC 24 which endorsed and approved earlier National Court decisions in The State v Pennias Mokei (N0.2) [2004] N2635 & The State v Biason Benson Samson [2005] N2799.
15. She made reference to the following cases as a guide:
16. Miss. Batil set out the factors in mitigation and aggravation. She conceded this case is not the worst type to attract the maximum life sentence. Whatever sentence to be imposed and to be suspended or not is at the court’s discretion.
COURT’S OPINION
17. First of all the court adopts the sentencing considerations in sexual offences cases as guidance set in Stanley Sabui v The State [2007] PGSC 24; SC866 (27 June 2007) . These considerations 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 not use a threatening weapon and not use aggravated physical violence?
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
7. Was there no 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 investigations?
11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?
12. Has the offender not caused 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. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”
18. Going by the considerations in Stanley Sabui v The State (supra) I set out the factors to mitigate your sentence against those that are to be weighed against you.
➢ Mitigating factors are:
➢ Your early plea
➢ You are a first time offender with no history of prior convictions.
➢ You acted alone
➢ You never used weapons, threats or force.
➢ You caused no further trouble to the victim and her family and your wife when you were reported to the police and after you were released on bail.
➢ You cooperated with police and admitted the offence you committed, making their investigation less difficult.
➢ Victim sustained no physical injury
➢ She contracted no STI from you
➢ She was not made pregnant.
➢ Both of you had sexual relations by consent until discovered.
➢ You were truly remorseful not only by words. You had reconciled with the victim and her family and paid compensation of a total value of K3, 319.00. That victim and her family, your wife and members of the extended family and leadership had accepted your apology even up till now.
19. And aggravating Factors:
➢ You breached position of trust, authority or dependency as the girl was your guardian and an uncle or daughter by your marriage to her mother’s sister.
➢ There is a 7 years age difference between you and the girl. At the time offence was committed you were about 22 years old and the girl was 15. I considered there is not a huge age difference like in other decided cases.
➢ You committed an offence which is so prevalent in our society in our time.
➢ You also committed adultery which is against the law.
➢ You absconded bail or breached your bail condition and avoided early disposition of the case causing the court to issue a bench warrant. It took almost 19 years for you to be arrested and brought to court.
➢ From all the factors listed the court accepts that factors that would mitigate your sentence far outweighs the factors of aggravation.
DECIDED CASES
20. Reference to decided cases should also serve as useful guide in reaching a specific sentence. There are abundance of them, few of which have been referred to by the counsels. Court has taken note of the cases.
21. Let me say this. Facts of your case have established that it was not a one off sexual penetration incident with the girl. You persistently sexually penetrated your niece, (‘daughter’) more than once. In such situations a survey of cases show that courts have been imposing stiffer penalties,
22. Within the maximum prescribed penalty. In a recent unreported case of The State v Rudolf Dennison CR. N0. 992 of 2016 (dated 28 July 2018) I observed that sentence between 6 – 20 years were imposed by the cases reported in the PNG Sentencing Data Base depending of course on their factual circumstances and factors in mitigation and aggravation.
23. In my judgment factors considered by the courts in the sentences imposed in the 3 decided cases Miss. Batil referred to are distinguishable. I consider the head sentence to be 6 years which is similar in to The State v Paul Dominic [2016] PGNC 78; N6290 (13 April 2016) judgment of His Honour Late Lenalia J. The prisoner pleaded guilty to the charge. He was 22 years old, the girl was 15 years old. Sexual intercourse was consensual, in a boy/ girl relationship over period of time. Mitigating factors outweighed factors in aggravation. Prisoner had a good character. Sentence of 6 years was imposed which was wholly suspended with conditions.
24. Further consideration which should further mitigate your case are these. You committed the offence 19 years back in time when you were 22 years old and a newly married young man with a kid. Had you been convicted early sentencing outcome would have been different. You decided to avoid early trial prolonged the case to be concluded early.
25. The views expressed by those interviewed and captured in the pre-sentence report are worth considering. Firstly, you are generally well behaved person and a loving husband and father. You are now 41 years old and perhaps wiser and father of 7 children. There are no complaints or reports of you in the community stalking girls and sexually abusing girls or women in the community. The girl victim has grown and moved on in life. She is now 34 years old and a Primary School Teacher by profession. No information is available to this court if she is married and has a husband and children. Although you committed the offence 19 years back in 1999 that period has mended broken wounds and feelings and you are a well behaved person in the community.
26. Following all of the discussions and the exercise of courts powers under s 19, you are sentence to 4 years with hard labour to be served at Kerevat Jail. Sentence is wholly suspended upon you being placed on probation for the entire period of the suspended sentence.
27. In addition the following orders are issued:
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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