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State v Mea [2022] PGNC 234; N9714 (23 June 2022)

N9714

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1237 OF 2020

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
OREX MEA

Waigani: Wawun-Kuvi, AJ
2022: 3^rd May, 1^st & 23^rd June

CRIMINAL LAW-SENTENCE-Guilty Plea-Sexual Penetration of A Child under 12 years, 229A (1)(2) Criminal Code-Child 10 years old- Offender resides in same home and known to the victim- Victim Impact Statement obtained- Sentence of 17 years imprisonment imposed

Cases Cited

State v Amon [2018] PGNC 521; N7634
State v Paulus [2018] PGNC 241; N7339
State v Awi [2016] PGNC 338; N6563
State v Jessie Chadrol (2011) N4648
State v Nawa (No 2) [2009] PGNC 115; N3732
Sabiu v State [2007] PGSC 24; SC866
Nawa v State [2007] PGSC 50; SC1148
State v Burua [2006] PGNC 222; N3081
Saperus Yalibakut v The State (2006) SC890
State v Angup [2005] PGNC 126; N2830
State v Kutetoa [2005] PGNC 137; N2814
State v Winston [2003] PNGLR 5
Gima v Independent State of Papua New Guinea [2003] SC730
Public Prosecutor v Hale [1998] SC564
The State v Kagai [1987] PNGLR 320
Goli Golu v The State [1970] PNGLR 653

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel

Ms. Elizabeth Kave, for the State
Ms. Kim Watakapura, for the Offender

DECISION ON SENTENCE

23^rd June, 2022

1. WAWUN-KUVI, AJ: The offender and the child victim were residing in one home. The offender was a friend to the child’s maternal uncle. On 24 June 2019, the child victim was 10 years old. She went to get water from the refrigerator. When she finished drinking water, the offender grabbed her by the hand and pulled her into the room. He closed the door and held the victim by the throat and closed her mouth. He removed her clothes and his as well. He kissed the victim on the mouth and neck and proceed to insert his penis into her vagina. The child victim attempted to shout out, but the offender covered her mouth and threaten to kill her. She bit the offender on his hand, and he let her go. She wore her clothes and ran out.
   
2. The child victim informed a friend, and the matter was subsequently brought to her parents’ attention.
   
3. The offender pleaded guilty to these facts and so I must now decide the appropriate penalty.

The Charge

4. The offender pleaded guilty to the charge of Sexual Penetration of a child under section 229A (1)(2) of the Criminal Code.

Penalty

5. The maximum penalty is life imprisonment.
   
6. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.

Submissions

State’s submissions

7. The State submits for a term of imprisonment between 8-12 years.
   
8. In mitigation it was submitted, that the offender is a first-time offender and he pleaded guilty.
   
9. In aggravation it was contended that the offender was a close family friend and had been living with the victim and her family for over 10 years. That there was a breach of trust as the offender was considered a part of the family. The age difference. The evidence demonstrates that it was not a one-off incident, prevalence, and seriousness of the offence.
   
10. The State refers the Court to the following cases:
    
11. State v Amon [2018]^[1], Numapo, AJ (as he then was); the offender pleaded guilty to the sexual penetration of a 9-year-old child. He followed her out when she went to collect greens. He grabbed her and threw her onto the ground when he sexually penetrated her by inserting his penis into her vagina. The victim was living with the offender and his family. The offender was sentenced to 12 years imprisonment.
    
12. State v Paulus [2018]^[2], Numapo (as he then was): The offender pleaded guilty to the sexual penetration of a child under the age of 12 years. The offender was under the influence of alcohol. The offender was known to the victim. The offender lived with the victim’s family. He pulled her into the house and inserted his fingers and then his penis into her vagina. He was sentenced to 10 years imprisonment.
    
13. State v Awi [2016]^[3], Liosi, AJ (as he then was): The offender pleaded guilty to the sexual penetration of a 6-year-old child. He called the victim in the house and inserted his penis into her vagina. The offender was discovered when the victim developed a vaginal infection. In sentencing, the Court took into mitigation consent and sentenced the offender to 10 years imprisonment.
    
14. Saperus Yalibakut v The State (2006) SC890: The offended pleaded guilty and was convicted of sexual penetration of a 11-year-old girl. The offender was initially sentenced to 17 years imprisonment. The offender appealed. The Supreme Court reduced the sentence from 17 years to 14 years on account that the consensual intercourse was a mitigating factor that was not originally considered.
    
15. The cases submitted by the Prosecutor do not disclose that the victim’s views were obtained in the sentencing process. In Saperus Yalibakut v The State (2006), the sentence was reduced because the Court accepted in mitigation that there was consensual intercourse. Likewise in State v David Awi [2016], the Court considered the offender’s version of consent as mitigating. In all the cases cited by the Prosecutor, there were no victim impact statements from the victims.

Defence submission

16. Ms. Watakapura for the defence has submitted for a sentence between 9- and 12-years imprisonment. She submitted for a partial or fully suspended sentence. Ms. Watakapura whilst citing the relevant authorities relating to suspension of sentence did not draw the Court’s attention to relevant factors peculiar to the offender’s case if any that the Court could rely upon to consider suspension. She had further submitted that the Court disregard the Pre-Sentence Report because it does not contain the views of the victim and members of the offenders’ community.
    
17. In aggravation it was submitted that the victim was of a tender age, a significant age gap, the offence was committed in the safety of the victim’s home and that there was an existing relationship of trust, authority, and dependency.
    
18. In mitigation, was the guilty plea, it was an isolated incident and the offender acted alone, there were no weapons, the offender has no prior convictions, and he was remorseful.
    
19. The following cases were cited:
    
20. State v Nawa (No 2) [2009]^[4], Lenalia, J: the offender was convicted following a trial for sexual penetration of a 14-year-old child. He was sentenced to 8 years imprisonment.
    
21. In the present case, the victim is under 12 years and the maximum penalty is life imprisonment.
    
22. State v Angup [2005]^[5], Lay J: The offender pleaded guilty to four counts of sexual abuse that ranged from sexual touching to sexual penetration. He was sentenced to 20 years imprisonment for the sexual penetration of his stepdaughter. She was then under the age of 12 years.
    
23. State v Kutetoa [2005]^[6], Cannings J; The offender pleaded guilty to sexually penetrating his 11-year-old stepdaughter. He returned home drunk and took the victim into the room where he sexually penetrated her. He was sentenced to 17 years imprisonment.
    
24. State v Lesson David Cr 561 OF 2005 and State v Paul Wakara, CR 914 of 2006 both unpublished judgements derived from the judgement in State v Nawa (No 2) [2009] PGNC 115; N3732 (29 July 2009), on a guilty plea, sexual penetration of children under 12 years old and one-off incidents. Force was applied. Sentences of 9 years and 10 years. Without the full judgement the Court does not have the benefit of knowing the circumstances in which the court exercise its discretion to draw a comparison.
    
25. The cases of State v Angup [2005] and State v Kutetoa [2005] PGNC 137 cited by Ms. Watakapura are similar. Both cases involve adult males who are not related to the victims by blood but have entered their lives due to relationships with each of their mothers. Whilst the offender in this case was not the stepfather of the victim, he was present in the life and home of the victim because of his relationship with her mother. She considered him as her adopted brother. A significant degree of trust was to the offenders to care and love these children, which was abused.
    
26. The difference in State v Angup was that the offender pleaded guilty to other sexual acts perpetrated on the child over a period of 6 years.

Comparative cases

27. Sabiu v State [2007]^[7]:A sentence of 17 years was upheld for sexual penetration of a 6year old child by a maternal uncle. The offender had pleaded guilty.
    
28. Nawa v State [2007]^[8]; A sentence of 20 years was substituted for 17 years. The offender pleaded guilty to the sexual penetration of his 8-year-old stepdaughter.
    
29. In Sabiu v State [2007]^[9], the Supreme Court was of the view that the starting point in a case where the child is under 12 years of age, should be 15 years. The circumstances that are peculiar to the case will then determine whether the sentence imposed should be more or less than 15 years.
    
30. In State v Jessie Chadrol (2011) N4648, His Honour Batari, J suggested a range of 7-25 years where children are under the age of 12 years.
    
31. The views expressed does not curtail sentencing discretion as each case is decided upon its own peculiar set of facts. They however provide guidance to ensure parity of sentence.
    
32. In considering the cases submitted by the State and Defence and the comparative cases, it appears, that the range suggested in State v Jessie Chadrol (2011)^[10], has been generally applied. The peculiar facts of each case have been the determining factor as to the final sentence.

Personal Antecedents

33. The Offender is 28 years old and is from Ihu, Okapa, Gulf Province. He is second in a family of four. His parents live at Brown River in Central Province.
    
34. He has four other siblings.
    
35. The offender attended Ororo Primary School and completed his Grade 8 education.
    
36. He is unemployed and single.

Pre-Sentence Report

37. The Probation Officer interviewed only the offender. He was unable to communicate with the victim’s mother. No views were obtained from his biological family members as the offender stated that he had lived with the victim’s family most of his life.
    
38. The offender admitted committing the offence and apologized for his actions.

Allocutus

39. The offender in Allocutus stated:

I say sorry to God, the Court, say sorry to the victim and to her family. Ask Court to have mercy.

40. I accept that there is some form of remorse considering the full admissions to the Probation Officer in the PSR.

Victim’s views

41. The State obtained both the child and her mother’s statements.
    
42. The child’s mother expresses her anguish and betrayal She explained how the offender entered her family’s life and how her family and his family maintained the relationship for over a span of 20 years. She pleads with the Court to impose a lengthy custodial sentence. She states that her child is quite and withdrawn. She is not comfortable around other people.
    
43. The child victim stated that when she returned to school, she felt that everyone was taking about her. This made her feel shame. She has lost her confidence and keeps away from everyone. She is afraid of all males even teachers, students, and other persons. She does not like to be alone in the classroom with male students and gets nervous. She is afraid of any voice that is like the offender’s voice. She falls asleep only when the door is locked. She states that she feels breathless when she sees a man of similar appearance. She does not feel confident going to the restrooms in school alone and is always accompanied by another student. She is even accompanied from the house to the canteen. She finds that she cannot relate to anyone because of her lack of trust. She appreciates that her parents assisted her to complete counselling and that her family has keep the incident a secret. She fears that her friends will find out and treat her differently. She asks the Court to impose a lengthy custodial sentence.

Aggravating Factors

44. The offender’s family and the child’s family are family friends. A relationship that was forged between the offender and the child’s maternal uncle. The offender was accommodated because of that very relationship. The victim’s mother considers the offender as her brother. This is not disputed. Even the offender states in the PSR that they are the only family he knows. There is a relationship of trust which was breached.
    
45. The offence was further committed in the child’s home. A place that she should have felt safe. She now cannot sleep in her own home unless the doors are locked.
    
46. In aggravation also is the traumatic effect of the offence on the child then and which continues up until today. Whilst the offence was one off, the scars and pain of the offence have carried on for this child. The victim impact statement demonstrates the trauma that continues to affect her daily life. Not only was she deprived of her childhood, but she also lives through her teenage years with fear and reservations.
    
47. The child was under the age of 12 years. She was only 10 years old. The offender was about 25 years old. He was an adult whist she was a child of tender age.
    
48. The facts in which the offender has been guilty demonstrate that there was a degree of force used by the offender to subdue the victim. She had to bite the offender on the hand to be able to escape from his hold.
    
49. This is a very prevalent offence in our society. One only need to look at the media reports and published judgements each year to find that this deplorable and sickening behavior reaches far and wide into every facet of our society. Whilst it is said that children are the future of a nation, one wonders what type of future this country will have, when these types of abuse continue to be perpetrated against our children.
    
50. The State has argued that the Court accepts in aggravation that the evidence established that this was not a one-off incident. The defence contend otherwise. It is therefore contested whether it was a one-off incident. The Supreme Court in Nawa v State [2007] PGSC 50; SC1148 (2 March 2007), in relying on Saperus Yalibakut v The State (2006) SC890 reinstated the following principles:
    
    • The sentencing judge must apply the facts to which the offender has pleaded guilty.
    • As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.
    • If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the offender.
      
51. In Nawa v State [2007], the trial judged referred to two previous incidents as factors in aggravation. The offender did not plead guilty to those facts. This was found to be an error.
    
52. In the present case, the offender did not plead to facts that alleged more than one occasion. I accept that this was a one-off incident and not a factor in aggravation.
    

Mitigating Factors

53. I find in mitigation, that the offender pleaded guilty and has no prior convictions. He has expressed some form of remorse.

Consideration:

54. As I have stated this offence is very prevalent in our society. It is also a serious offence that consists of the violation of the most intimate part of a child by an adult that the child trusted.
    
55. In State v Burua [2006]^[11], Lenalia J stated:
    

“Sexual abuse of our young children in this country and particularly in this Province is very prevalent. Very young girls are being abused at very early ages as was the case in the instant case. A child at the age of less than 15 years is merely a child of very tender age is not capable of having sexual relations with anyone. The courts must view these kinds of abuses to be very serious......

The law of the land must be maintained and enforced in its entirety to reflect the serious nature of the crime of sexual abuse.”

56. Unlike cases submitted by counsels, victim impact statements were not obtained to assist the Court to know the gravity and the extent to which the victim has suffered and continues to suffer. In the present case, it was provided. It reflects that a young life has been so traumatized and that simple acts of falling asleep, going to the restroom at school, walking to the canteen and even being left alone in the classroom with a male student are overwhelming for this child.
    
57. I do accept that it does act in favor of the offender that he pleaded guilty. Considering the victim impact statement, this has had the effect of avoiding further trauma upon the child victim.
    
58. In considering the mitigating and aggravating factors and the foregoing matters, a sentence of 17 years imprisonment is appropriate.
59. The offender was in custody since his arrest on 26 June 2019. I exercise my discretion under section 3 (2) Criminal Justice (Sentences) Act 1986, the pre-sentence custody of 2 years. 11 months and 28 days.
    
60. The offender shall serve the balance of 14 years and 2 days.
    
61. I have taken consideration as to whether any part of the sentence should be suspended and find that there is nothing in this case that supports suspension. Sentencing as has been said in several cases is a community response and so the views of the community must be obtained. ^[12] There were no views obtained. This is also a serious offence and a prevalent offence. Suspension would not be appropriate.

Orders

62. The Orders of the Court are as follows:
    
    1. The Offender is sentenced to 17 years imprisonment.
    2. Pre-sentence custody of 2 years, 11 months and 28 days is deducted.
    3. The Offender shall serve the balance of 14 years and 2 days at the Bomana Correctional Institution in hard labor.
       

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

^[1] PGNC 521; N7634 (12 December 2018)
^[2] PGNC 241; N7339 (20 June 2018)
^[3] PGNC 338; N6563 (17 June 2016)
^[4] PGNC 115; N3732 (29 July 2009)
^[5] PGNC 126; N2830 (21 April 2005)
^[6] PGNC 137; N2814 (22 March 2005)
^[7] PGSC 24; SC866 (27 June 2007)
^[8] PGSC 50; SC1148 (2 March 2007)
^[9] supra
^[10] supra
^[11] PGNC 222; N3081 (7 July 2006)
^[12] See State v Winston [2003] PNGLR 5, Gima v Independent State of Papua New Guinea [2003] SC 730, Public Prosecutor v Hale [1998] SC 564; The State v Kagai [1987] PNGLR 320