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State v Patrick [2020] PGNC 56; N8253 (24 February 2020)

N8253

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 891OF 2017

THE STATE

V

COLLIN PATRICK

Alotau: Toliken, J
2019: 24^th September, 12^th November
2020: 24 February

CRIMINAL LAW – Sentence after trial – Sexual penetration of a child –Penile penetration of mouth –Circumstance of aggravation – uncle/niece relationship - Sentence – No distinction on how and what body part was penetrated – Mitigating and aggravating factors considered – Appropriate sentence – 6 years less time in pre-conviction and sentence custody – Suspension inappropriate - –Criminal Code Ch. 262, s 229A(1)(3).

Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 93)
Golu Goluv The State [1979]PNGLR 653
The State v Eric Puropuro (2014) N5959
The State v Kemo Wanaisu (2013) N5284
The State v Eric Isaac Leonard; CR No. 996 of 2013 (unreported and unnumbered judgment dated 14 February 2017)
The State v Leonard Tanilo; CR NO. 1251 of 2015 (Unnumbered and unreported judgment of 12^th May 2016)

Counsel

A Kupmain, for the State
P Palek, for the prisoner

SENTENCE

24^th February, 2020

1. TOLIKEN, J: Collin Patrick, you were convicted after trial for one count of sexual penetration of a child under the age of 16 years with whom you stood in a position of trust, authority and dependency. This is an offence under Section 229A (1) & (3) of the Criminal Code Ch. 262.
   

CHARGE

2. Your charge was that on 25^th February 2017, at Hagita Estates, Alotau, Milne Bay Province you sexual penetrated the victim child Chantally Kadedeya, who is a niece of yours by inserting your penis into her mouth.
   

FACTS

3. The brief facts which I found at trial and upon which I am going to sentence you are these: On 25^th February 2017, you went to Hagita Secondary School where the victim had recently enrolled to do Grade 9. You took her out of the school on the pretext that you were taking her to her father and uncle and a pastor at the Hagita Estates. Your real intention, however, was that you wanted to befriend her. And you also wanted to take her to your brother’s house at Hagita Estates and sleep with or have sex there with her. This much you admitted in your confessional Statement and your Record of Interview and on cross-examination. The two of you caught a bus and got off at the Hagita Estates Junction. Then you walked through the oil palm plantation. Along the way you grabbed the victim by the neck from behind and demand her to remove her shirt. You then proceeded to suckle her breasts and forced her to suck your penis. All the while she was crying in protest and asking you why you were doing this to her as you were her uncle. You retorted saying that you were not her uncle but her husband. After that you took her back to the junction and she caught a bus back to school.
   

THE OFFENCE

4. The offence of sexual penetration of a child under the age of 16 years where the offender stands in a position of trust, authority or dependency carries a maximum penalty of life imprisonment, subject of course to the court’s discretion to impose a lesser sentence pursuant to Section 19 of the Code. (s 229A (1) & (3) of the Code). By way of contrast, an offence without circumstances of aggravation attracts a maximum penalty of 25 years only.
   
5. It is, however, trite that the maximum penalty for any offence is usually reserved for the worst offence. It is also trite that the sentence in each case will depend very much on the circumstances on each case. (Golu Golu –v- The State [1979] PNGLR 653; Avia Aihi –v- The State (No.3) [1983] PNGLR 93).
   
6. This offence is among a number of offences that were introduced by Parliament into the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, for the protection of children.This was in response to an escalation of sexual abuse against children and also to give effect to the United Nation’s Convention on the Right of the Child which Parliament had ratified. These amendments introduced very stiff penalties, including life imprisonment for cases where circumstances of aggravation are present.
   
7. Abuse of children involving sexual penetration, is a deplorable and despicable act which is exacerbated when the abuser is someone who stands in a position of trust, authority or dependency in respect of the child. Children must be protected from all sorts of abuse so that they grow up in an emotionally stable, loving and protective environment. That is the rationale behind this genre of offences.
   

ISSUE

8. Coming back to your case, I must decide whether it can be considered a worst case. If I do, then you should expect the maximum penalty. But if it is not, then I must impose an appropriate sentence below the maximum penalty.
   
9. At the outset, it can be safely said that yours is not a worst case and therefore should not attract the maximum penalty of life imprisonment. And so, I must determine an appropriate sentence for you below the maximum prescribed penalty.
   

ANTECEDENTS

10. What do we know about you or your personal circumstances? You are from Omarakana village on Trobriand Island. At the time you committed the offence you were 20 years old. You are now 23. You are single. You come from a family of 6 siblings of which you’re the eldest. You are a Roman Catholic and have a Grade 10 level education. You are a simple and unsophisticated villager with no prior conviction. You were apprehended by the police on 27^th February 2017 hence, you have been in custody for a period of 2 years, 11 months and 24 days.
    

ALLOCUTUS

11. You apologized for your offence and said that you are very ashamed of what you did to your niece. You said that you come from a very poor family. Your parents who are now old and your younger siblings who are all still in school depended on you as the eldest. You also said that you had been exposed to hardened criminals while in custody. And because you are a first- time offender you asked to be placed on probation.
    

SUBMISSIONS

12. Your lawyer Mr. Palek submitted that this is not a worst case, which of course is what I have also said above. Counsel cited several mitigating factors which I will address presently. He also submitted that an appropriate sentence for you should be 7 – 10 years, a portion of which ought then to be suspended owing to your youthfulness. You have a favorable pre-sentence report (PSR). Though not balance because it did not incorporate the views of the complainant’s parents, even though the victim did give her views, the PSR recommends probation for you which should include customary compensation with a monetary value of K9000 which your immediate relatives asked to be given 6 months to pay or give. It is worth noting, however, from the report that you wish to specifically compensate the victim for lying to her and not because of sexually penetrating her. Mr. Palek also urged the Court to distinguish sexual penetration of victim through her mouth from penile or digital penetration of the vagina or anus which he said are more serious.
    
13. Mr. Kupmain on the other hand submitted that because you forced a trial the victim had to relive the trauma of the indecent act you subjected her to. Counsel submitted in response to your lawyer’s submission that penetration of the mouth ought to be regarded as less serious, that there should not be any distinction between penetration of the mouth or vagina and anus.
    
14. As to your concern about the welfare of your loved ones Mr. Kupmain said that you ought to have thought about their welfare before you committed this offence. As to your concern about being exposed to hardened criminals up at Giligili Mr. Kupmain said you are personally responsible for the decision that you made. Mr. Kupmain also submitted that you are not remorseful at all and that is borne out by the fact that despite your conviction you still deny that you sexually penetrated the complainant and that your offer to compensate her is not because of that but for lying to her. That’s evident from your PSR. So, what should be an appropriate sentence for you?
    

MITIGATING FACTORS

15. Let me say firstly I consider your mitigating and aggravating factors. I do accept that your age and background and the fact that you did not infect the victim with and Sexually Transmitted Infection (STI) or cause her any injuries as mitigating your offence. You are also a first-time offender and a youthful one at that and were of prior good character before you committed this offence. However, because of the nature of the offence, I should not place much weight on these factors. Your expression of remorse in Court, however, flies in the face of your continued denial of having committed the offence as we can see from your PSR. I do not think therefore that your apology in court was genuine.
    

AGGRAVATINGFACTORS

16. Against you are, however, some aggravating factors. You compelled the child to leave the safety of her school by means of trickery. So, this was not a spur of the moment thing. Rather you had planned to take her out of school with the intention of befriending her and taking her to your relative’s house at Hagita Estates where you intended to have sexual relations with her. You also abused the trust reposed in you as an uncle to the victim. Lastly, this is a very prevalent offence.
    

DELIBERATIONS

17. Now, your lawyer Mr. Palek asked the Court to differentiate between penetration of the mouth from vaginal or anal penetration, arguing that the former ought to be treated as less serious. The Code, however, does not differentiate between these modes of penetration by providing different penalties for the them. That clearly shows that it does not matter which sexual part of the victim is penetrated. Parliament has obviously left it up to the sentencing court to impose appropriate sentences according to the circumstances of each case. Whatever the case, the clear intention of Parliament is that persons who sexually penetrate children, by whatever mode and irrespective of how they are penetrated, whether through the mouth, vagina or anus must be severely punished so that children are protected from all sorts of abuse by sexual predators. Whatever an offender gets, however, will depend very much, not only on aggravating and mitigating factors, but also on his level of culpability and the harm done to the victim.
    
18. Speaking of harm, victims of sexual abuse often suffer emotionally and psychologically even if they suffered no physical harm. The effect of abuse on victims is especially grave on children because they are not conditioned at the most vulnerable stage of their life to handle the effects of such abuse.
    
19. In this case your level of culpability is quite high because you stood in a position of trust which you abused. You also preplanned the whole thing and you took her out of the safety of her school and took her to an isolated location through the oil palm plantation.
    
20. Mr. Palek cited several cases to assist me in arriving at an appropriate sentence for you. None of these, however, involved penile penetration of a victim’s mouth.
    
21. The State v Eric Puropuro (2014) N5959: The offender pleaded guilty to 2 counts of sexually penetrating the 13 year old victim within a period of 24 hours. I sentenced the offender to 8 years for the first count and 9 years for the second count which I ordered to be served currently. There the offender had good mitigating factors.
    
22. The State v Kemo Wanaisu (2013) N5284: There I sentence the 19 year old offender to 12 years for sexually penetrating his 13 year old victim through the vagina. He had met the victim collecting firewood. He hit her on the head and then threw her to the ground and then dragged her to a river where he sexually penetrated her. He was a first-time offender and pleaded guilty to the charge.
    
23. The State v Leonard Tanilo; CR NO. 1251 of 2015 (Unnumbered and unreported judgment of 12^th May 2016). There the 20 year old offender pleaded guilty to sexually penetrating his 8 year old niece whom he had met in the bush collecting coconuts with her brother. He sent the boy away and told the victim to go into the bush and cut some bush vines. He followed her and sexually penetrated her vagina. I sentenced him to 15 years from which I suspended 7 years 1 month and 3 weeks.
    
24. I have searched for cases of similar nature to yours and could not find any. The only matter involving penile penetration of the victim’s mouth was that of The State v Eric Isaac Leonard; CR No. 996 of 2013 (unreported and unnumbered judgment dated 14 February 2017). The offender was convicted after trial for one count of sexual assault and two counts of rape, one of which involved penetrating the victim’s mouth with his penis. There the offender had accosted the victim in her father’s betel nut plantation and chased her up a hill where he sexually penetrated her vagina as well as her mouth. For the latter I sentence him to 11 years. The victim there was, however, an adult.
    
25. Coming back to your case, I would like to think that an appropriate sentence for you should be 6 years. This is not to trivialize the gravity of your offending nor differentiate your case from those involving vaginal or anal penetration. All forms of penetration involve an invasion of the victim’s most intimate privacy that often leave victims highly traumatized and emotionally scarred. For a child the trauma and experience will often lead to retardation of the child’s growth and development.
    
26. What you did to your niece is despicable because you betrayed her trust. You have turned her into an object of sex and lust, and you will continue to look at her and regard her as simply that –an object of sex. Your sentence will hopefully deter you from treating your niece and other relatives or any girl for that matter with such disrespect.
    
27. You pleaded for the welfare of your family. You are the first born and it now fall upon you to support your siblings and your aged parents. But it had been said repeatedly by this court and the Supreme Court this not the appropriate time for a prisoner to start thinking about the effects of his incarceration on his loved ones because the time for you to think about the welfare of your parents and siblings is before you set your mind into committing the offence for which you are now before this Court. So, if anything, the fact that your parents and younger siblings have already suffered, and will continue to suffer, is something that you have to take into account and take full responsibility for. You have nobody else to blame but yourself.
    
28. You also in your plea in mitigation was concerned about the fact that you had, during your incarceration been exposed to hardened criminals. Unfortunately that is something that cannot be avoided because as Mr. Kupmain said, you committed this offence deliberately and you should also be prepared to face the consequences. And again, the fact that you are in prison is not out of anybody’s fault but yourself.
    

SENTENCE

29. I therefore sentence you to 6 years imprisonment less 2 years 11 months and 24 days for time spent in pre-trial detention.
    

SUSPENSION

30. Now, should any part of your resultant sentence be suspended? Despite your youthfulness and the fact that you had a favourable PSR, I do not think that I should exercise my discretion in this regard. You have no remorse for what you did to your niece and despite being convicted you continue to deny sexually penetrating her. Your offer for compensation was according to your own words as per the PSR was specifically for lying to her, not because you sexually penetrated her. By deciding against suspending any part of your resultant sentence, I am sending a clear message to you and those who think that penetrating a child’s mouth is a trivial matter, that such behavior against our girls, especially minors, will not be tolerated but visited upon with incarceration or imprisonment. And when you disrespect children, even your own relatives, you must be prepared to face the consequences.
    
31. That is my sentence and I order accordingly.
    
32. You have the right to appeal against your sentence to the Supreme Court within 40 days.

_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner