N7523
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1142 OF 2016

THE STATE

V

LEMEK JUBIN

Kokopo: Susame, AJ
2018: 12, 24, 26, 28 September & 22 October

CRIMINAL LAW – Sentence –After Trial - Offence – Sexual Penetration Of A Female Child Under 12 Years Of Age – S 229a (1) (2(3) - Sentencing Approach – The Need For Supreme Court To Categorize Sentencing Guidelines In Sexual Abuse Cases Of Children – Sentence Must Fit The Crime & Must Be Approached Objectively 

CRIMINAL LAW - Sentencing Considerations- Factors Of Aggravation Outweigh Factors In Mitigation –Punitive & Deterrent Sentence Considered - Suspension Of Sentence Requires Proper Exercise Of Discretion -  Factors To Consider – 17 Year Custodial Sentence Less Pre-Trial Custody Period. 

 Cases Cited:

Goli Golu v The State [1988-89] PNGLR 653
Maima v Sma [1972] PNGLR 49
Stanley Sabui v The State [2007] PGSC 24; SC866.  
The State v Bonny Gongi Paulus [2018] PGNC 350; N7339 
The State v Jessie Chadrol (2011) N4648

Counsel:

Mr. Tugah, for the State
Ms. Pulapula, for the Prisoner

DECISION ON SENTENCE 

22 October, 2018

1.      SUSAME AJ: This is the judgment on sentence. Offender has been convicted on 8 October 2018 after trial. 

OFFENCE

S 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 Subjection (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 liable, subject to section 19, to life imprisonment.
 
2.	Section 229A provides three different types of penalties depending on the 3 circumstances clearly defined in the provision.   Offender in subsection (1) is liable for imprisonment to a maximum 25 years imprisonment term whilst offenders in subsections (2) & (3) are liable for imprisonment of up to maximum life years in jail.  Court may consider a penalty lower than the maximum by invoking s19 powers depending on objective assessment of characteristics of the case.
 
3.	The law is settled on maximum penalty in this jurisdiction. It should not be readily given except for a case consisting of grave or very serious aggravating facts and circumstances. (Goli Golu The State [1988-89] PNGLR 653, Maima v Sma [1972] PNGLR 49)

ALLOCUTUS

4.	Prisoner was heard first in regard to his sentence followed by the counsels. Prisoner stated that it was his first time in court. When he was a young man he has never been in court. He asked for mercy of the court. He has been in custody for 3 years. He is a sick person.  His legs are swollen and also has a swollen stomach. His wife and son are disable. He asked court to have mercy on him and place him on probation.  

FACTS

5.	Facts of the case are found in the judgment on verdict and will be referred to. 

6.	Prisoner is from Herovana village in the Lufa District of Eastern Highlands Province and lives in the same compound with the complainants. The victim and her 2 other friends named were playing when the prisoner told them to go play cards at his garden house at about 3.00pm on 24th October 2015.  Prisoner issued verbal threats and promised to give them money so the girls accompanied him to his garden house. There the prisoner asked them to remove their clothes.  Out of fear one of the girls fled from the scene. Prisoner then sexually penetrated the victim in the presence of her other friend. Evidence was lacking if the prisoner attempted to or sexually penetrated the other girl.
  
7. 	The girl was medically examined.  Notable injuries found were she had a torn hymen.  It was swollen with vaginal discharge due to infection.

SUBMISSIONS

8.	First let me consider the submissions.  In their respective submissions counsels reminded the court of the law on imposing of maximum penalty. Ms. Pulapula considered mitigating factors outweighed the aggravating factors. Mr. Tugah thought otherwise.  Both reminded the court of sentencing guidelines in sexual offences laid down by His Honour Cannings J in State v Penias Mokei(N0.2) [2004]2004 N2635 & The State v Biason Benson Samson [2005] PGNC 160; N2799 and followed in The State v Ndrakum Pu-Uh (2005) N2949. Those considerations were endorsed by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866.  

9.	Counsels referred the court to several comparable decisions. I will refer to them a bit later on.  Ms. Pulapula submitted in conclusion starting point of 6 years should be applied but wholly suspended in consideration of mitigating factors. 

10.	Mr. Tugah for the State submitted offence is quite serious and prevalent in the society especially in East New Britain Province. A term of years should be imposed as a stern warning for purposes of deterrence.

SENTENCING CONSIDERATIONS

11.	Set out below are the sentencing considerations approved by the Supreme Court in Stanley Sabui v The State (supra): 

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? Ans. Yes but no reconciliation. 
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?” 

12.	I adopt the guidelines and use them as a guide.  

COURT’S OPINION

13.	Sentencing guidelines set by the courts apply to all sexual offences. There are no known Supreme Court decisions categorizing sexual abuse cases against children under the age of consent and factors that would make a case so grave to warrant the maximum penalty.  There was an attempt by AJ Numapo in a recent case of The State v Bonny Gongi Paulus [2018] PNNC 350; N7339 (20 June 2018).  At paragraph 8 of the judgment His Honour considered factors that should make a worst type case. These are:  

(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.

14.	The above factors are not exhaustive and subject to review and additions made. If I may add a few more factors: 

•	Use of weapons to frighten or injure
•	Offence committed in the course committing another serious crime.
•	Offence committed while on license or parole 
•	There was pre-planning. 
•	Victim was a disability child 

15.	Parliament was serious in addressing escalating law and order issues our country was facing which attracted criticisms from the public and the global community which in turn gave us a bad rating amongst other nations.  Considering these concerns Parliament introduced a series of laws by amendment N0. 27 of 2002 which became operational on 10 April 2003. This included offences against children. 

16.	Going by the guidelines in Stanley Sabui v The State factors in aggravation outweigh the factors in mitigation.  Are there factors present to make this case so grave to attract the maximum life sentence?  

17.	There are none.  A sentence lower than the maximum will be considered instead.  Comparable decisions become useful in reaching a sentence. There are large volume of cases to refer to.  Counsels have referred the court to a number of them. They are valuable guide.  All of them are sexual penetration cases under 229A (1) (2) and more relevant. 

1.	The State v Bonny Gongi Paulus (supra)
Charge – 1 count of sexual penetration of vagina by penis and finger – Early Plea -Prisoner under influence of alcohol – Prisoner bribed and lured victim with K2.00 – Prisoner 25 years old & victim 8 years old – Breach of relationship of trust – Prisoner was taken care of by the victim’s family – Prisoner first time offender – Prisoner Remorseful – Prisoner cooperated with police – No weapons used - Injury – Abrasions & Laceration of the vagina – 10 years custodial sentence – 

2.	The State v Engi Hendrix CR: 485 of 2012
Charge- 1 count of sexual penetration – Early Plea - victim 5 years old – Prisoner an adult – breach of relationship of trust – prisoner is victim’s uncle - 10 years custodial sentence.
 
3.	The State v Sawan Raumo [2007] PGNC 187; N4983 (18 September 2007) 
Charge – 1 count of sexual penetration of vagina by finger – Early plea – Prisoner 25 years old & Victim 6 of age – Prisoner first time offender – Cooperated with police – No weapons or threats used – Isolated incident – Victim injured – impact on victim – relationship of trust – prisoner did not personally surrender – no reconciliation – 10 years custodial sentence.
  
4.	The State v Stanley Sabui [2005] PGNC 223; N3654(3 November 2008)
Charge – Early plea – I count of sexual penetration of anus by penis – Early plea - Prisoner victim 6 years old boy – Prisoner was an adult maternal uncle – breach of relationship of trust – victim carried away by force to a secluded place – victim suffered injuries – 17 years sentence imposed.

5.	The State v David Awi[2016] PGNC 338; N6563 (17 June 2016)
Charge -  1 count of sexual penetration of vagina by penis – Early Plea – Victim 6 years of age – Prisoner 22 years of age – Breach of trust Prisoner was looked after by victim’s parents – Prisoner first time offender - Prisoner crippled -  act consensual – no force used – Isolated incident - Victim contracted STI – Offence prevalent – sentence of 10 years.

6.	The State v Kemai Lumou (2004) N2684, 
Charge – 1 count of sexual penetration of vagina by penis – After trial – Prisoner 22 years of age – victim 14 years of age – act nonconsensual – aggravated physical violence – a bush knife an offensive weapon used with threats – no injuries or STI contracted – Isolated incident – act between uncle and niece –serious betrayal of trust – No apology or compensation – 17 years sentence .
 
7.	The Sate v Ali Meninga, Cr: 1304 of 2016, 27 October 2017
Charge – 1 count of sexual penetration of vagina by penal insertion & digital penetration of anus – after trail – prisoner aged between 22-28 years & victim 6 years old – act between cousins – breach of trust –verbal threats issued - lacerations on labia minora and redness of the anus -  sentence of 16 years 

8.	The State v William Eiya, CR: 1283 of 2006, 26 June 2008.
Charge: 1 count of sexual penetration of vagina by penis – After trail – prisoner 56 years old victim 9 years of age – victim lured – Physical injuries sustained – 18 years sentence.

18.	The increase in penalties represents the legislature’s assessment of the seriousness of the crime.  The change in penalties in offences of sexual abuse of children is obviously an indication that sentences should be increased.

19.	Judiciary has responded to the demands of the community. A survey of cases indicates there has been a significant change in the sentencing pattern.  Longer terms of goal sentences are being imposed by the courts in recent times. 

20.	What should be the sentencing approach?  There are two competing views in approaching the issue. The first is the approach in Stanley Sabui v The State Supreme Court suggested 15 years as the starting point with the option to go up or down depending on factors in aggravations and mitigation and other characteristics of the case. The other approach is the one suggested by Batari J in The State v Jessie Chadrol (2011) N4648 and followed by Numapo AJ in The State v Bonny Gongi Paulus.   That instead of following the fixed base line sentence of 15 years suggested in Stanley Sabui court should be at liberty to decide a term between the ranges of 7 – 25 years. 

21.	I concur with the approach suggested by Batari J and followed by Numapo AJ.  Let me add by saying Supreme Court should consider categorizing cases of sexual abuse of children, characteristics to consider and sentencing range, similar to what the court did for homicide cases in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005).
  
22.	That approach has come under criticisms by Kandakasi J and few other judges as it attempts to place restrictions on the free exercise of judicial discretion of the sentencing court. 

23.	With greatest of respect the approach taken by the Supreme Court in Manu Kovi should not be construed as an attempt to interfere with or restricting the discretion of the sentencing court. The court still has the liberty to impose an appropriate penalty in the proper exercise of its discretion.   The guidelines are useful in guiding the primary court in reaching a specific sentence. They are vital to maintain consistency in sentencing tariffs. 

24.	That said though the highest court of the land had decided. Until the Supreme Court comes up with set of guidelines this court will be guided by Stanley Sabui. In that respect I endorse what the Supreme Court said in Stanley Sabui: 

 “In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger penalty. ….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 the 15 years imprisonment.”

25.	The community’s abhorrence against such heinous crimes of sexual abuse or molestation of young children is reflected in the statement by the Supreme Court quoted above. 

26.	Persons who engage in such evil and criminal conduct against children of tender years must be severely punished and go to jail for a longer period of time, not only as a punishment but also as a deterrence to others who might have similar conduct.  

27.	Courts have a duty to heed to concerns of a larger community about law and order issues in the country and approach sentencing in serious crimes with firmness. With utmost respect, judges who are overly merciful must be reminded of the importance of imposing heavier custodial sentences, that courts have a duty to protect young children from sexual assaults by adults.  

28.	All that said it has long been accepted by the courts that punishment must fit the crime or must be proportionate to the crime. That offender is adequately punished. Sentence must be approached objectively having regard the gravity of the offence and its circumstances or characteristics. 

CHARACTERISTICS OF THE PRISONER & OFFENCE COMMITTED 

29.	The factors I consider in prisoner’s favour are firstly, he has no history of prior convictions. He is considered as a first time offender. No offensive weapon was used nor did he cause any aggravated injuries to the girl. Prisoner was the lone abuser.  There was no breach of trust. 

30.	Factors that should weight against him are that there is a huge age gap of 31 years between the prisoner and the girl.  Prisoner was 37 and the girl was 8 when offence was committed. Prisoner issued verbal threats.  There was no consent. Prisoner lured and bribed the victim and her other 2 friends with money to his garden house away from the main compound.  Prisoner attempted to abuse all 3 girls but sexually penetrated one.  Victim suffered a torn hymen and vaginal infection. She lost her virginity.  Prisoner expressed some remorse but nothing tangible was done to repair his wrong with the victim and her family. Prisoner threatened to fight the complainant’s and did not voluntarily give himself up to police, instead he went into hiding. His early plea would have been considered favourable to him. Instead he put the case to trial at great expense, causing the small girls to appear in court to withstand the embarrassment and immense pressure of testifying in court. 

31.	Most characteristics or factors in the comparable decisions outlined above are present in the case under consideration. Except that this is not a plea case and that there was no breach or betrayal of trust relationship, use of dangerous weapon. I consider factors are such that sentence should range from 15 years recommended by the Supreme Court in Stanley Sabui and 18 years in The State v William Eiya (supra). Sentence of 6 years pleaded for and on behalf of the offender is inappropriate.  

SUSPENSION OF SENTENCE

32.	The next question. Should the court suspended whole or part of the sentence? 
The offender has asked the court for a non-custodial sentence and release him on probation because of his sick condition of physical impairment of his wife and child. Ms Pulapula followed through and also asked for a suspended sentence.

33.	I have given serious thought about this.  Again that issue must not be approached emotionally. It requires proper exercise of judicial discretion. 

34.	Firstly, extenuating circumstances are absent in the commission of the crime to further mitigate the sentence. 

35.	Secondly, the court has no benefit of a pre-sentence report from Probation Officer.  There is medical evidence available to court offender is a TB patient and is under treatment. The Goal Command at Kerevat Jail to continue to ensure he continues his treatment and monitor his condition. If his condition worsens it may be necessary to get him admitted to TB ward at one of the two general hospitals in the Province. There is however, no evidence attesting to the assertion his wife and child have physical impairment. In doing him justice his pre-trial custody period will discounted from the sentence to be imposed. 

SENTENCE

36.	Accordingly, offender is sentenced to 17 years imprisonment. 
Pre-sentence custody period to be deducted from the 17 years imposed.
Balance of the sentence to be served in Kerevat Gaol with light labour. 
__________________________________________________________________
Public Prosecutor:		 Lawyer for the State		
Public Solicitor:		 Lawyer for the Accused