N9364

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 664 OF 2018

BETWEEN:
THE STATE

AND:
NICKSON PALAM

Waigani: Ganaii, AJ
2021: 08th September, 29th November

CRIMINAL LAW – SENTENCE – Sexual Penetration of a Child under the Age of 16 – Section 229A (1) Criminal Code – Abduction of Girls under the Age of 16 – Section 351 (1) of the Criminal Code - Sentencing principles – Aggravating and Mitigating factors – Deterrent and Punitive  Sentence - Due consideration to right to privacy - Respect for the freedom and dignity of a person, a child  
Cases Cited:
Papua New Guinea Cases

Aieni v Tahain [1978] PNGLR 37 
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC 564

Overseas Cases

Lam v Queen [2021] JVSCA 24 (31-32)
Nguyen v Queen [2010] VSCA 152
R v Doran [2008] VSCA 271 [15] [16]
R v Exba [2009] VSCA 205)
R v Philips [1985] 7 CR App R (S) 235, applied in State v Wambura [2017] PGNC 318; N6967 (8 August 2017)
R v Rau [2011] VSC 370 [32]

Legislation

The Criminal Code Act, Chapter 262 of 1974

Counsel

Mr. A. Kaipu, for the State
Mr. Koke, for the Offender 	
			
DECISION ON SENTENCE

29th November, 2021

1.      GANAII AJ: This is the sentence for the offender Nickson Palam who has been convicted after trial on one count of Sexual Penetration of a child under the age of 16 years, pursuant to section 229A (1) and one count of Abduction of Girls under the age of 16 years, pursuant to section 351 of the Criminal Code.

2. 	The relevant facts are that the offender lived at the Hagen Kona, ATS, Port Moresby. The offender and the child victim and her family are all from the WHP. They are known to each other. The offender is friends with the child victim’s brother and uncle and regarded her as his little sister. 

3.	During the 2017 New Years celebrations, the offender was under the influence of alcohol when he abducted the victim. The victim was sent by an aunt who was celebrating the new year, to go and buy cigarettes for her at a nearby tucker shop. The offender held the child victim and forcefully took away by pushing and pulling her over a distance of 50 plus meters. He led her into a locked premises that had an opening at the gate, and towards a busy area. He then forced her to remove her clothes and sexually penetrated her by inserting his penis into her vagina. 

4.	At that time, the child was 13 years old. The offender threatened the child not to say anything or he would harm her.
 
Antecedents and Allocutus

2.	The offender had no prior convictions. He was given an opportunity to say what matters the court should take into account when considering a punishment (Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978) applied). He aplogised to the Court, to the lawyers and the family of the victim. 

Pre-Sentence Report

3.	The offender is 31 years old and hails from Kald village, Baiyer District, WHP. He completed university studies, obtaining Bachelor’s Degree in Accounting in 2017. He was never employed prior to and at the time of the commission of offence.
 4.	The PSR does not contain character references that show any good character of the offender. That is a relevant consideration for showing the offender’s prospects for rehabilitation. I make reference to the case of R v Rau [2011] VSC 370 [32]. The report also does not contain information to confirm what the offender stated on compensation being paid to the family of the child victim. 
5. The PSR does contain views from the members of the community at Hagen Kona. A summary of the views of two unnamed persons is not favorable to the offender but is one that may voice the concerns of the members of that community. The views are that the offender is of a drunken habit and when under the influence of alcohol, tends to harass innocent members of the community. Report says he therefore is a threat to their community. 
Submissions by Defence Counsel

6.	On the law, and in citing the appropriate case precedents (Goli Golu v State; Lawrence Simbe v The State, Thress Kumbamong v The State SCRA 29 OF 2007, SC 1017; Mr Koke of learned counsel for the offender submitted that the maximum penalty is reserved for the worst case and that a sentence of 12  years is appropriate for this offence. 

7.     For offence of Abduction of Girls under the age of 16 years, Mr Koke submitted that a sentence of 12 months is appropriate. He submitted that both head sentences  be served concurrently in observance of the totality principal.  

Submissions by the State 

8.     Although the State indicated that learned prosecutor Mr Kaipu had filed submissions, I was not able to locate their submission. Due to so much delay being caused in this matter, though the absence of both counsels, I have decided to proceed to this ruling.   
 
Application 

Maximum penalty is reserved for the worse case

9.	A consideration which the courts must have regard to is the Section 19 Criminal Code discretion of the courts. This provision of the law provides for the wider discretion of the courts to impose lesser penalty than the maximum. The principle in the case of Goli Golu v The State [1979] PNGLR 653 is applied where it states that the maximum penalty is reserved for the worst type of case. 

10.	The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Where society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. State v Kiaro [2020] PGNC 277; N8610 (30th October 2020), Narokobi, J, applied. 
Relevant Consideration

11.	In State v Hotsia Geria [2008] PGNC 295; N3868 (17 November 2008), Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are and what the appropriate head sentence should be and should any or part of it be suspended.
Sentencing Trend 

12.     In State v Mokei (No 2) [2004], the court is guided by the factors in aggravation and mitigation relevant to sentence.
Mitigating Factors

13.	The normal mitigating factors present in this case are: first time offender; offender co-operated with police on arrest, charge, and in observing his bail conditions until he was incarcerated after being found guilty; on the circumstances of the offence, there were no physical injuries done to the victim; the victim did not contract a sexually transmitted disease or fall pregnant, the offender was unarmed; he expressed remorse; he is highly educated; and he paid compensation.

Aggravating factors

14.	The law in sentencing requires the balancing act of assessing the mitigating factors against those in aggravation. The aggravations are: the offence is prevalence; age difference of 11 years; young teenager; threats were issued; offender was drunk; and there was evidence through the child’s mother of a psychological impact on child; breach of trust; no evidence of compensation and maintenance of innocence after court found guilty, although offender has a right of appeal on conviction.  

15. 	In James Mora Moera v The State [1996] PNGLR 280, the Supreme Court said that breach of trust is a serious aggravating factor and in consideration of an appropriate penalty, this factor alone makes the offence serious thus attracting a severe penalty. 

16. Whilst the offender submitted that he had paid compensation, that is not confirmed by the victim’s family. It is unclear whether he paid compensation prior to the court finding him guilty or after that. As such, where payment of compensation and guilty plea, usually demonstrates genuine remorse, it is difficult to say so in this case in the absence of any participation from the victim’s family. I do not accept that any genuine effort was made to compensate or reconcile or to show genuine remorse. 

Law

17.	The prescribed sentence under sections 229A (1) and 351 (1) of the Criminal Code are: firstly, under section 229A, a term of imprisonment not exceeding 25 years and secondly, under section 351, a term of imprisonment not exceeding 2 years. 
Case law on starting point
18.      In case of State v Sabiu [2007] PGSC 24, SC866 (27 June 2007) and State v Benson Samson (2005) N2799 the courts stated that where an offence of this kind is committed against a child at or under the age of 13 years, a sentence of 15 years is an appropriate starting point.
Abduction of Girls under the age of 16 years
19.    I have not been able to find any relatively comparable cases on sentence for the offence of Abduction of Girls under the Age of 16 years, pursuant to section 351 of the Criminal Code. The closest case was one involving the charge of Abduction of Girls under the age of 18 under section 220 of the Criminal Code. The two provisions are almost similar in their elements except for the obvious difference in the ages of the victim and in section 220, there is an element of taking away to be ‘carnally known’. 

20.     In The State v Maya Raymond, N8379, Cr No. 281 of 2020, Madang:  Geita J, (10th June 2020), on a charge under section 220, where the victim was 16 years old and was taken away without the consent of her parents, a sentence of 12 months was imposed which was fully suspended. The following considerations were made: guilty plea, first time offender, consensual sex as victim was offender’s girlfriend; offender was 19 years of age and victim was 16 years old so there was an age difference of 3 years. The mitigating factors outweighed the aggravating factors.  

21.     In this case, the State rightly charged the two different offences separately to cater for the elements of Sexual Penetration of a Child under the age of 16 (s 229A (1)) and Abducting a Girl under the Age of 16 from the person who had lawful custody of her, namely her aunt (s 351 (1)). The charges arise out of the same facts and the totality principle will be apply. 

22.     In distinguishing this case to the case of State v Maya Raymond (supra), the following makes this case serious: another offence was committed following the abduction; the matter went to full trial where the victim was called to relieve her traumatic experience; there is a huge age difference of 11 years and serious breach of trust. A sentence of 12 months without suspension is therefore appropriate in the circumstances of the case.  

Head Sentences

24.	There is no question that the prisoner must serve terms of imprisonment calculated to sufficiently serve both the deterrent and retributive aspects of punishment and one that gives due consideration to the right to privacy, respect to freedom and dignity of a person, and due consideration for the protection of children who are vulnerable members of society. The severity of the punishment must be proportionate to the seriousness of the crime.

25.      I take into account the mitigating factors but they are outweighed by the aggravation: Kenneth Penias, The State v [1994] PNGLR 48, where maximum or a term closer to the maximum may be imposed.

26.	On compensation, I am mindful that the PSR does not say what the child victim’s family and the child’s  attitude towards reconciliation and compensation is. . The Supreme Court held in The Public Prosecutor v Tardrew [1986] PNGLR 91, that a sentence may be suspended, among other things, if it will promote rehabilitating the offender, or restitution, and in Public Prosecutor v Don Hale (1998) SC564, if suspension is supported by a Pre-sentence Report (PSR). The PSR favours the offender in this regard. 
 
27.    The offender’s case, does not fall into the category of cases where the PSR supports suspension due to compensation. 
28.     In light of the above, a sentence of 15 years imprisonment for Sexual Penetration of a child under the Age of 16, pursuant to s229A (1) is appropriate. 
29.     There will be no partial suspension as sought for by the defence.  
30.     A sentence of 12 months for the offence of Abduction is appropriate and there will be no suspension. 
31.     Sentences of 15 years and 12 months is to be served concurrently. 
32.      Time in custody of 3 months is deducted. 
Order

33.      The following orders are made: 
1.	Prisoner is sentenced to 15 years imprisonment in hard labour on one count of Sexual Penetration pursuant to Section 229A (1) of the Criminal Code.

2.	The Prisoner is sentenced to 12 months imprisonment in hard labour on one count of Abduction of Girls under the age of 16 years pursuant to section 351 (1) of the Criminal Code.

3.	The 15 years and 12 months is to be served concurrently. 

4.	Three months as pre-trial custody period is deducted. 

5.	Prisoner to serve a balance of 14 years and 9 months.

Orders accordingly. 
________________________________________________________________
Public Prosecutors: Lawyers for the State
Furigi Lawyers: Lawyers for the Prisoner