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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 612 OF 2018
THE STATE
V
HEBRUS AMON
Lae: Numapo AJ
2018: 16th October, 20th November & 12th December
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 - Sentence with Deterrent Effects.
Held:
(i) The sentence imposed on sexual penetration of a child must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual deviants, sadist and predators.
(ii) The big age gap between the offender and the victim, breach of an existing relationship of trust, authority and dependency makes it an aggravated sexual penetration.
(iii) Use of no weapon or absence of aggravated violence perpetrated on the victim or that the victim has not contracted any sexually transmitted diseases (STIs) or is not pregnant are not mitigating factors in favour of the prisoner.
(iv) A sentence with a deterrent effect is needed to send a clear message to other would-be offenders.
(v) Prisoner sentenced to Twelve (12) years imprisonment less the pre-trial custody period.
(vi) No Suspended Sentence.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Sabiu v The State (2007) SC866
The State v Jessie Chadrol (2011) N 4648,
The State v Engi Hendrix Cr. No. 485 of 2012
The State v Bonny Gongi Paulus Cr. No. 1388 of 2017
State v Noel [2012]; N4664
State v Raumo [2007] N4983
State v John Ritsi Kutetoa (2005) N2814
State v Tiama Esrom (2006) N3054
Counsel:
J. Done, for the State
J. Huekwahin, for the Defence
SENTENCE
12th December, 2018
1. NUMAPO AJ: This is a decision on sentence. The prisoner HEBRUS AMON pleaded guilty to one count of Sexual Penetration of a child under the age of 12 years, then 9 years old at the time. Contrary to section 229A (1) (2) of the Criminal Code Act Ch. 262.
2. The facts to which the prisoner pleaded guilty were that; on the 01st of January at Vitis Compound, Wau the offender engaged in an act of sexual penetration with the victim (named), a child under the age of 12 years then aged 9 years by inserting his penis into her vagina. On that day the victim went to the garden to collect greens (choko tips) when the offender followed from behind, grabbed her and threw her to the ground, forcefully removed her clothes and sexually penetrated her by inserting his penis into her vagina until he ejaculated.
3. The medical examination carried out on the victim revealed the following:
(a) Vaginal Examination – labia majora painful, redness and bruises of the vaginal wall and severe vaginal bleeding.
4. The medical report is consistent with what the victim reported.
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 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.
6. There are two categories of penalties prescribed under section 229A for the offence of Sexual Penetration. The first category is an imprisonment term of not exceeding 25 years if the child (victim) is under the age of 16 years and the second category is an imprisonment for life if the victim is under the age of 12 years. In the present case the victim is 9 years old hence the second category applies.
7. 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 wilful murder case which eventually became trite law and apply to other offences as well.
8. Both the State and Defence submitted that the present case does not fall under the category of worst type offence and asked the court to consider a penalty less than the prescribed maximum under s. 229A (1) (2) of the Criminal Code. Also the Court has a wider sentencing discretion under section 19 of the Criminal Code to impose a lesser sentence in place of the prescribed maximum sentence.
9. The State submitted for an imprisonment term of between 13 – 15 years whilst the Defence submitted for 10 years as head sentence.
10. The factual circumstances of the case being the aggravating and mitigating factors and circumstances are taken into account in deciding what should be the appropriate sentence to impose but as to how much weight is given to those factors is entirely at the discretion of the Court.
11. The aggravating and mitigating factors and circumstances of the present case are as follows:
12. Defence further submitted that there was no weapon used or aggravated violence perpetrated on the victim or that the victim has not contracted any sexually transmitted diseases (STIs) or that she is not pregnant following the sexual penetration and these should therefore, be considered as mitigating factors in favour of the prisoner. So the converse would be that if the victim suffered from all these then they become aggravating factors. I find this proposition ludicrous. Just because the victim has not contracted any STIs or become pregnant from any sexual penetration that the prisoner should get a discount for that? There is no legal basis for that. And I am also aware of some case laws that have accepted these circumstances as mitigating factors and with greatest of respect, I think that is wrong.
13. Counsels cited a number of case precedence to assist the Court in deciding an appropriate sentence for this case based on the current sentencing trend on Sexual Penetration. I refer to them below:
(i) The State v Engi Hendrix Cr. No. 485 of 2012
14. The offender was charged with one count of Sexual Penetration of a victim aged 5 years old in a position of trust and dependency. He was an uncle to the victim and living with them at the time. He was sentenced to 10 years which was partial suspended.
(ii) The State v Bonny Gongi Paulus Cr. No. 1388 of 2017
15. The prisoner pleaded guilty to sexually penetrating a victim aged 9 years. The offender was living with the victim’s family when he committed the offence. There was a breach of trust and dependency. He was sentenced to 10 years imprisonment.
(iii) State v Noel [2012]; N4664
16. The offender pleaded guilty to sexually penetrating a 9 year old boy by inserting his penis into the victim’s anus. He was sentenced to 9 years less his pre-trial custody period and 6 years to be suspended if compensation is paid to the victim.
(iv) State v Raumo [2007] N4983
17. The offender aged 25 years old sexually penetrated a victim aged 6 by inserting his finger into her vagina. He took her to the river under a breadfruit tree and told her to lie down and 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.
(v) State v John Ritsi Kutetoa (2005) N2814
18. The offender was sentenced to 17 years on a guilty plea for sexually penetrating the victim aged 12. The victim was the offender’s step daughter and so there was breach of trust and dependency.
(vi) State v Tiama Esrom (2006) N3054
19. The offender pleaded guilty to sexually penetrating the victim aged 9 years and the prisoner was aged between 50 – 60 years. The victim is the offender’s granddaughter. The offence was aggravated by an existing relationship of trust, authority and dependency. He was sentenced to 12 years imprisonment.
20. The prisoner is a married man with a child and comes from Pioyu village, Menyamya. He currently resides at Vitis Compound in Wau. He is unemployed and depends mostly on garden produce and coffee to support his family. He owns a small coffee plantation. In his allocutus, the prisoner expressed remorse and apologized for his actions and asked the Court to be lenient with him. He plans to say sorry and reconcile with the victim after he served his term.
21. The current sentencing trend on Sexual Penetration appears to be an imprisonment term of between 10 – 17 years as clearly reflected in some of the leading case laws cited by Counsels.
22. 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.”
23. 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.”
24. 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. Although, the Supreme Court ruling prevails in this regard, I agree with the approach taken by Batari, J in State v Chadrol (supra) as it gives the Court a wider sentencing range and more flexibility in deciding the appropriate starting point depending on the factual circumstances of the case being; the aggravating and mitigating factors including any other special features and/or circumstances peculiar to the case itself that may require a specific consideration by the court. I intend to adopt the approach taken by Batari J in this present case.
25. A number of factors are taken into consideration in sentencing. The sentence imposed on sexual penetration of a child must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual deviants, sadist and predators. The big age gap between the offender and the victim, breach of an existing relationship of trust, authority and dependency makes it an aggravated sexual penetration. The prevalence of the offence is also a relevant factor for consideration in sentencing.
26. I sentence the prisoner to Twelve (12) Years imprisonment.
27. Pursuant to Section 3 (2) of the Criminal Justice (Sentences) Act, I deduct One (1) Year for the pre-trial custody period.
28. Prisoner is to serve the balance of Eleven (11) Years with hard labour.
No suspended sentence.
Sentenced accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence
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