N10351

PAPUA NEW GUINEA
[THE NATIONAL COURT OF JUSTICE]

CR NO. 445 0F 2021

THE STATE

V

MALIAKI CLEMENT
Prisoner
(No 2)

Bulolo & Buimo:  Polume-Kiele J
2021: 24th May, 2nd August, 3rd, 22nd & 23 November, 2nd, 7th & 9th December
2022: 22nd & 23rd February, 1st March, 13th May, 21st June, 2nd December

CRIMINAL LAW – Sentence - Sexual penetration of a child under the age of 16 years, Criminal Code, s 229A (1) (2) (3) - Division IV.2A - Sexual Offences Against Children, Section 229A (1), engaging in an act of sexual penetration of a girl under the age of 16 years.

Brief Facts
The prisoner, Maliaki Clement of Kumusi Village, Bulolo, Morobe Province was convicted 21 June 2022 with one count of sexual penetration, contrary to s 229A (1) (2) and (3) of the Criminal Code Act (Sexual Offences Against Children) Act. On 25 April 2020, the prisoner, Maliaki Clement at Wau, Morobe Province, Papua New Guinea sexually penetrated a child under the age of 16 years old, namely, GM who was then under the age of 12 years and aged 5 years old, by inserting his penis into her vagina. AND AT THAT TIME, the said Maliaki Clement was in a position of trust, authority, and dependency as he was the stepfather of the said GM. 

Cases Cited
SCR No. 1 of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v the State [1982] PNGLR 92
Golu v the State [1979] PNGLR 635
Ure Hane v the State [1984] PNGLR 105
The State v George Taunde (2005) N2807
The State v Pennias Mokei (No.2) 2004 N2635
The State v Peter Lare (2004) N2557
The State v Eddie Trosty (2004) N2681
The State v Kemai Lumou (2004) N2684
The State v Titus Soumi (2005) N2809
The State v John Ritsi Kutetoa (2005) N2814
The State v Tiama Esrom (2006) N3054 
Public Prosecutor –v- Tardrew [1986] PNGLR 91
State v Albert Kavena (2015) N6085
State v Epo Matao (2015) N6084
Maima v. Sma [1972] PNGLR 49

Counsel

Ms. S Joseph, for the State
Mr. C Boku, for the Accused

RULING ON SENTENCE

2nd December, 2022

1.	POLUME-KIELE J: On the 3 of November 2021, an indictment was presented against the accused, Maliaki Clement, adult male, with one count of sexual penetration under Section 229A (1) (2) and (3) of Criminal Code (Sexual Offences Against Children) Act. 

2.	On 8 November 2021, the accused was arraigned. He pleaded not guilty to the indictment and a trial was conducted. 

3.	On 21 June 2022, the Court returned a verdict of guilty against the accused on a charge of sexual penetration contrary to s 229A (1) (2) (3) of the Criminal Code. 

4.	This is my ruling on sentence.

The Charge
5.	Essentially, s 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act states:
Section 229A - SEXUAL PENETRATION states:

(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 Subsections (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.	On 25 April 2020, the prisoner, Maliaki Clement at Wau, Morobe Province, Papua New Guinea did sexually penetrate a child under the age of 16 years old, namely, GM who was then under the age of 12 years and aged 5 years old, by inserting his penis into her vagina. AND AT THAT TIME, the said Maliaki Clement was in a position of trust, authority, and dependency. The prisoner is the stepfather of the said GM. 

7.	The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victim’s mother and the Police Record of Interview which were contained in the Bulolo District Court Deposition that had been tendered into evidence by consent: 

(i)	Medical Report dated 30 April 2020 prepared by the Health Extension Officer, Olivia Kola (Exhibit 1)

(ii)	Statement of Arresting Officer Constable Joel Allan undated – (Exhibit “2”)

(iii)	Record of Interview of Maliaki Clement dated 29 May 2020 (Original Pidgin Version – (Exhibit “4” - Typed English Translated Version – “4A”) 

(iv)	Statement of Reserve Constable Ricky Edward undated (Exhibit “2”)

8.	The element of both offences and the circumstances of aggravation were not contested by the defence. It is agreed that the complainant was 5 years old at the time of the offending and that a relationship of trust, authority and dependency existed. The prisoner, Maliaki Clement is the stepfather of the child, GM.  (a relationship of trust, authority, and dependency under Section 6A (2)(d) existed.

Antecedent Report
9.	The prisoner has no prior convictions. 

Pre-Trial Detention
10.	The prisoner was committed to stand trial on the 26th of August 2020. He has been remanded in custody for a period of 2 years 3 months 6 days to the date of this ruling on sentence.

Allocutus
11.	When administering the allocutus, you were asked if you had anything to say on penalty. You stated that you do not have anything to say to the Court.  Hence, it must be pointed to you that you were then given the opportunity to speak on penalty, but you had exercised your right to remain silent. 

Pre-Sentence Report
12.	No pre-sentence report was requested for. 

Determining penalty
13.	In determining penalty, several factors are taken into account, and this includes matters of mitigating and aggravating factors.

Mitigating Factors
14.	In your case, the relevant mitigating factor in your favour is that you are a first-time offender. In addition, this Court also noted that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview. 

Aggravating Factors
15.	The aggravating factors against you are that you engaged in acts of sexual intercourse with the victim who is a child under the age of 16 years old (then 5 years old) between 25 and 26 April 2020 which took place at your home and at Maus pipe, Bulolo. At the time that you engaged in the act of sexual penetration on the victim, you were in a position of authority and trust. You are the child victim’s stepfather. You were in a position of trust and authority and as such the victim depended on you to protect her but instead, you sexually assaulted her by inserting your penis into her vagina and by doing so, you have broken a law of this country. This type of offence is prevalent; an offence for which you must face the consequences of your actions.

Submission on Sentence by the Defence
16.	Mr. Boku on your behalf submitted that the charge of one count of sexual penetration is an offence for which the maximum penalty prescribed under s229A (1) (2) (3) of the Criminal Code Act (Ch No 262) subject to Subsection (2) imprisonment for a term not exceeding 14 years. He submitted further that this is not the worst type of case of sexual penetration and said that this case should be considered on its own set of facts and merits and referred to SCR No. 1 of 1984: Re Maximum Penalty [1984] PNGLR 418; Avia Aihi v the State [1982] PNGLR 92, Golu v the State [1979] PNGLR 635 and Ure Hane v the State [1984] PNGLR 105.  He submitted further that by operation of s 19 of the Criminal Code, the Courts have wide discretion to impose a lesser penalty, and, on that basis, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary. A number of case authorities were also referred to in support of his submission on sentence and some of these case authorities are referred to in this judgment.

17.	Mr Boku also urged this Court to also consider other factors in its determination of penalty which include the fact that the prisoner did not use any weapons to commit the offence.  Furthermore, the prisoner is a first-time offender with no prior convictions. He had cooperated well with the Police. Mr Boku submitted that this Court in the exercise of its discretion impose a prison term between 8 and 12 years, however, deduct the period that the prisoner has been held in custody and consider suspension of the term of the sentence on conditions that the prisoner pay compensation. 

18.	Ms. Joseph for the State; in reply, submitted that this is a case where, the prisoner had breached the trust that had existed between the victim and himself. He is in a position of trust and authority and the victim depended on him to protect her. They are a family unit. Instead of protecting the victim, he violated that trust and abused her sexually. This type of offence is prevalent. Ms. Joseph impressed upon this Court that such offence should not be allowed to go unpunished. There is an increasing trend relating to offences relating to the abuse of vulnerable and innocent young girls, women, mothers, and this Court should impose a custodial sentence as this would be seen as having a deterrent effect on offenders from re-offending and to others from committing such offences. 

19.	In addition, Ms. Joseph submitted that whilst there is really no genuine attempt or efforts made to pay compensation or do so nor there being any serious attempt made to reconcile or to pay compensation to the victim and her family. Furthermore, other factors which should be taken into account include the fact that there is age difference of the prisoner and the victim which is about 20 years. That is the prisoner is 25 years and the victim then 5 years old.  

20.	With regard to sentence, Ms. Joseph submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. 

21.	Overall, Ms. Joseph submitted that there was a serious breach of trust because the prisoner and the victim who is a cousin sister and that there was an age difference of 14 years between the prisoner and the victim. This type of offence is also becoming prevalent, and a deterrent sentence must be imposed to protect vulnerable children despite a favourable PSR. She submitted that the Court should exercise discretion to impose a custodial sentence of 12 to 15 years as a deterrent factor.

Determining sentence
22.	"The general principle is that the maximum punishment should be awarded only in the worst cases." (see Maima v. Sma [1972] PNGLR 49 which quoted the principle applied in R. v. Harrison (1909) 2 Cr. App. R. 94 where his Honor Prentice J also stated "The Court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words, it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate." Also taken into consideration are the principles established in (SCR No. 1 of 1984: Re Maximum Penalty; Golu Golu –v- The State (supra); Avia Aihi –v- The State (No3) (supra) and Ure Hane v the State (supra) that each case should be considered on its own set of facts and circumstances.

23.	This Court has considerable discretion whether to impose the maximum penalty or a lesser sentence under Section 19 of the Criminal Code. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)]. 

24.	In this present case, the State relied on the oral statements of witnesses and the Police Record of Interview including your own unsworn statement from the dock as evidence to corroborate the charge of sexual penetration of a child under the age of 16 years old which had been tendered into evidence by consent.  Particular note is given to the medical report which concluded that injuries had been sustained by the victim and that this young child has not yet matured; that there is trauma in the vagina; there had been forceful penile penetration of the vagina and there was evidence of bleeding and swollen, painful force to the vagina. 

25.	The issue before the court is whether you should be sentenced according to the penalties prescribed under s 229A (1) (2) (3) of the Criminal Code Act (Ch No 262)?  Mr. Boku submitted that the maximum sentence 14 years imprisonment, subject to s 19 is not applicable in this case because of a number of reasons and outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence on a case by case basis and the maximum penalty should be reserved for only the very worst type of case of sexual penetration of a child under the age of 16 years old citing the principles established in SCR No. 1 of 1984 (supra); Avia Aihi v the State (supra) and Ure Hane v the State (supra) to support his submission on penalty.

26.	In applying this principle to the current case; this Court found the victim is a child under the age of 16 years old; that is, she was under 12 years old then 5 years old when the prisoner engaged in acts of sexual intercourse with the victim between 25 and 26 April 2020. This incident occurred within the prisoner’s home and at a location around Maus Pipe, Bulolo.  Furthermore, there is an existing relationship of trust, authority, or dependency. The prisoner and the victim are family members, the prisoner is the stepfather of the victim. The victim’s mother is the wife of the prisoner. 

27.	The Health Extension Officer, Ms. Olivia Kola gave evidence of the injuries which are also contained in a medical report prepared by her dated 30 April 2020 (Exhibit 1). It was also tendered into evidence by consent. The Medical Report showed that the victim, a 5-year-old child was alleged to have been sexually assaulted by a known male on 26 April 2020.  The examination indicated tear from the vagina to clitoris and the vaginal opening was red, swollen, painful and inflamed. Her pants were soaked in blood.

28.	This Court returned a verdict of guilty against you with the offence of sexual penetration of a child under the age of 16 years old who was then 5 years old, a young child who saw you as someone who stood in a position of trust, authority, and dependency. That is someone who will protect her and not abuse her. Under the Criminal Code, such an offence attracts the maximum penalty subject to s 19 imprisonment for life. However, given that the maximum penalty is always reserved for the worst offences and every case is different therefore sentences very much depend on the circumstances of each case as established in (Golu Golu –v- The State; Avia Aihi –v- The State (No3) and Ure Hane v the State (supra))

29.	In order to determine such a penalty, I have to firstly determine whether your case is such a case that warrants the imposition of the maximum penalty. This means that I would have to determine whether the facts of this case are so serious that the maximum penalty must be imposed, then I may take that into consideration and impose the maximum penalty. On the other hand, if the facts and circumstances of this case are not so serious, then this Court may consider imposing a sentence below the maximum penalty. Having stated all of the above, this Court also has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles.

30.	Other matters which are also taken into consideration when determining penalty include the Pre-Sentence Report and views of the community where you come from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid. In your case, no Pre-Sentence Report was requested for on your behalf. So, I leave it there. 

31.	Equally, important to the consideration of severity of sentence is the recognition that sexual offences are on the increase. More so, such offences occurred in family settings or situations where offenders in such cases stood in positions of trust, authority, and dependency towards their victims.  In order to address these problems, our law makers had introduced amendments to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Child) Act 2002 purposely to deal with such offences. These amendments also have prescribed tougher penalties for these offences and the circumstances of aggravation. This Court’s role in dealing with offenders who breached such laws are to give effect to the intentions of our Legislators (Parliament) and that is to impose appropriate sentences on offenders who breach this law and must be punished for their wrong doing. It is equally important for offenders to realize that such wrongs will not go unpunished and where warranted offenders are incarcerated to prevent them re-offending. At the same time and most importantly, the imposition of tougher punishment is seen as a deterrent to others so that they do not commit the same offence or (any other offence) that you have committed.  

32.	Counsels have assisted this Court in citing relevant cases in order to determine penalty and provided a table adapted from decided cases involving s229A - Sexual penetration of a child under the age 16 years offences. I have in this regard, outlined a summary of these cases (in a table) below in this judgment to determine sentence.

33.	Summary of Sentences imposed on s 229A – Sexual Penetration of a child under the age of 16 years.
No	Case 	Details of Charges	Sentence Imposed	

1	 
The State v George Taunde (2005) N2807	
Offender aged 33 at time of offence. Pleaded guilty to a charge of sexual penetration of a child under the age of 16 years. Victim was a girl aged 13. There was an uncle and niece relationship. There was lack of consent and no aggravated physical violence. Offender cooperated with police, expressed remorse but no compensation attempts made. First time offender.	
Sentence to 10 years imprisonment	

2	
The State v Pennias Mokei (No.2) 2004 N2635, Wewak	
Offender aged 33 years, charged and convicted with -one count of sexual penetration of child under the age of 16 years.  Complainant, a girl aged 13 years. Offender was the girl’s uncle. No consent, isolated incident – serious betrayal of trust. Offender cooperated with police – pleaded guilty and expressed remorse. No attempts at compensation. First time offender- no trouble caused with complainant or family since commission of offence.	
Sentence to 15 years imprisonment	

3	
The State v Peter Lare
(2004) N2557	
Offender aged 40 years charged with one count of sexual penetration. Complainant, a girl aged 12 years. Offender is girl’s adopted father. No consent, no physical aggravated personal violence but offender passed on sexually transmitted disease to complainant. Part of pattern of persistent abuse over a period of 2 years. Serious betrayal of trust. Offender cooperated with the police. Pleaded guilty, expressed remorse. No compensation attempted. First time offender. Offender labelled a sexual predator.	
Sentence to 20 years imprisonment	

4	
The State v Eddie Trosty (2004) N2681	
Offender aged 21 at time of offence, charged with one count of sexual penetration. Complainant, a girl aged 15. Complainant was offender’s girlfriend- consensual sex, no aggravated physical violence, part of a pattern of persistent consensual sex. Offender cooperated with police- pleaded guilty and expressed remorse. No compensation paid- first time offender	
Sentence to 6 years imprisonment	

5
	
The State v Kemai Lumou (2004) N2684	
Offender aged 22 years, charged with one count of sexual penetration. Complainant, a girl aged 14 years. Offender was girl’s uncle. No consent – aggravated physical violence: used a bush knife to threaten complainant and sexual penetration was forceful. No evidence of physical injury or infection of complainant with sexually transmitted disease. Isolated incident – serious betrayal of trust- offence committed against a pupil on her way to school. Offender did not cooperate with police. Tried to cover up his actions by claiming that complaint was his girlfriend, aged 17 and sex was consensual. Pleaded not guilty. Complainant was forced to relive crime. No evidence of offender saying sorry to complainant and her relatives. No compensation attempted. First time offender.	
Sentence to 17 years imprisonment	

6	
The State v Titus Soumi (2005) N2809	
Offender aged 30 years at time of offence; charged with one count of sexual penetration. Complainant, girl aged 14 years. Offender married to complainant’s older sister. Consensual sex – no physical violence. Offender cooperated with police – pleaded guilty and expressed remorse. No compensation attempted. First time offender.  	
Sentence to 2 years imprisonment	

7	
The State v John Ritsi Kutetoa (2005) N2814	
Offender aged 39 years at time of offence, charged with one count of sexual penetration. Complainant, a girl aged 10 years. Stepfather/stepdaughter relationship. Lack of consent – no weapons used or aggravated physical violence. Physical injury caused to child. Violation of existing relationship of trust. Offender cooperated with police, pleaded guilty, expressed remorse. No compensation attempted. First time offender	
Sentence to 17 years imprisonment	

34.	The sentences imposed in the cases cited above ranged from a term of 2 years to 20 years imprisonment. In the case against you, you have been convicted of the offence of sexual penetration of a child under the age of 16 years, an offence under s 299A (1) (2) (3) of the Criminal Code which attracts a maximum penalty subject to s 19, imprisonment for life. This Court is now tasked to determine whether it will impose the maximum penalty on you given the circumstances and facts of your case or whether it will impose a lesser penalty.

35.	In order to arrive at a decision as to whether to increase or decrease the head sentence; I have taken into account the considerations which were identified in the case of State v Biason Benson Samson (2005) N2799 which is also a sexual penetration case (per Cannings J) and the rationale applied in that case. I hereby adopt and apply that rationale in determining sentence against you. 

36.	The relevant considerations are:

(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 police in the 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 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?

(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?
Rationale
37.	The rationale here is that if the answer to any of the 17 considerations is answered in the affirmative that is “yes” than this answer would be regarded as a mitigating factor in your favour.

38.	On the other hand, an answer in the negative, that is a “no’ to any of the above considerations would be regarded as an aggravating factor against you. In situations where there is no answer at all, then this consideration will remain a neutral factor. 

39.	Overall, if there are more mitigating factors then this will likely result in a more lenient approach and a reduction of the head sentence. However, where there are more aggravating factors, then this will more likely result in the head sentence being lifted above the starting point.

40.	Given that rationale and accepting that the process of sentencing is not governed by any definite process. However, the process of sentencing is a discretionary exercise. Thus, the weight given to all these considerations are not measured by a measuring tool. The standard of assessment given to any of the mitigating or aggravating factor depends entirely on the prevailing circumstances and facts of a case.  For instance, in this case, the age of the victim and the age difference between the offender and the victim are important considerations. Where there is a small age difference, then this may be regarded as a mitigating factor. 

41.	In this present case, where the victim is of tender age, then the offence is more serious. Also important to these considerations are whether there is consent or no consent. Whilst the absence of consent is not an element of the offence, this can still lead to an offender being found guilty of the offence (the State v Eddie Trosty (supra)) where there was real consent to sexual penetration. In a case where there was no consent; then this is a serious aggravating factor, particularly where a weapon (e.g., a bush knife) is used (the State v Kemai Lumou (supra)) or if there is aggravated physical violence or physical injury caused to the victim.  It is also necessary to determine whether this is an isolated incident or part of a pattern of abuse (the State v Peter Lare (supra)) who was labeled a sexual predator.

42.	Other matters which are also taken into consideration are the conduct of the offender and how the offence has been dealt with. Has there been any compensation and or reconciliation attempts made to express remorse for the wrong done and what are the personal circumstances of the offender and are there any other considerations which should be taken into account that have been overlooked and should be taken into consideration?
Application of considerations
43.	I now turn to the application of those considerations to your case and answer these as follows:

(1)	No – there is a large age difference. The offender was 25 years and the victim 5 years at the time of the crime, there being an age difference of 20 years.

(2)	No – the victim was of tender years well under the age of 12 years.

(3)	No - there was no consent (a minor)

(4)	Yes - the offender acted alone, not in a group.

(5)	No - the offender did not use a threatening weapon and did not use aggravated physical violence.

(6)	The medical report stated the victim suffered trauma in the vagina and that there was forceful penile penetration of the vagina. With regard to whether any sexually transmitted disease is passed to the victim, that fact is unknown as the result of a review to be done on the 26 April 2020 is not before this court.

(7)	No - there was a relationship of trust, dependency or authority between the offender and the victim.

(8)	Yes - this was an isolated incident.

(9)	No - the offender did not give himself up after the incident.

(10)	Yes - the offender did cooperate with police in the investigations.

(11)	No - there is no evidence that the offender offered compensation to the victim or her family or of the offender engaging in a peace reconciliation ceremony.

(12)	Yes - the offender has not caused further trouble to the victim or the victim's family since the incident.

(13)	No, the offender did not plead guilty.

(14)	No, the offender did not express remorse.

(15)	Yes - this is the offender's first offence.

(16)	Yes - the offender is a youthful offender. He was 25 years old at the time he committed the crime.

(17)	No - there are no other circumstances of the incident or of the offender that warrant mitigation of the head sentence.

44.	While it is apparent that the list of mitigating factors and aggravating factors are about the same, these factors should not be seen as diminishing the gravity of your crime. You have committed a serious breach of trust, the age difference between you and the child does call for the need for you to protect this young child. Instead, you have abused her sexually. On the same token, there is also that need to protect young vulnerable children from people like you. This is a factor that outweighs any mitigating factor in your favour and calls for a penalty to be imposed that is within the bounds of reason and principle of decency and trust. This type of offence and similar offences against children are on the increase and these calls for tougher sentences to be imposed to deter such detestable practice by men who have respect for human dignity and practice such disgusting acts on young children of tender age. Children who should be protected irrespective of whether they are your flesh or blood just to satisfy their sexual satisfaction. 

45.	Out of the 17 considerations, there are 6 mitigating and 11 aggravating considerations. Four more aggravating factors than the mitigating factors, factors which will determine the issue of penalty. Particular attention is however given to the age difference (20 years) and the most alarming of all is the fact that the offender stood in a position of trust, authority, and dependency. You are the stepfather to the young child, aged 5 years old. You are seen as a parent and as such is expected to show greater compassion and protection of his own blood let alone, young vulnerable and innocent children of tender age, who view you as a father. Instead, you committed this despicable act on this 5-year-old girl, a stepdaughter. 

46.	I note in the record of interview that you elected to remain silent, during the course of the interview and also refused to sign the record of interview conducted 29 May 2020. Having considered all of the above and in determining penalty, I am convinced that the aggravating factors are significant such as to warrant an increase in the starting point of sentence within the range of 12 to 20 years. I also find that the mitigating factors also are inadequate to balance the sway from the aggravating factors and I fix the head sentence at 20 years.

47.	The next question is “Should all or part of the head sentence be suspended?

48.	Your lawyer submitted that this Court impose a sentence between 8 to 12 years and suspension of the sentence either partly or wholly after passing sentence. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report as held in the case of the Public Prosecutor –v- Don Hale (1998) SC 564).  This court notes that the prisoner is 23 years, has a wife and a young child.  A case on this similar charge is that of The State v Tiama Esrom (2006) N3054, in which the Court suspended 2 years from a head sentence of 12 years imprisonment imposed on the offender who pleaded guilty on a similar charge. He was between 50 and 60 years old. The balance of 10 years sentence was served in prison.

49.	Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR is favourable. Whilst this court agrees that some form of punishment be imposed as a deterrent factor, there is also a necessity to encourage reconciliation and peace between the parties. This will be seen as a reinforcement of the prisoner’s genuineness of being remorseful. 

50.	This court’s approach (my view) as expressed in the case of the State v Albert Kavena (2015) N6085; I echoed the sentiments that “the traditional form of compensation payment is important to maintaining peace and harmony within families, communities, and the public at large. This is a gesture that should be voluntary and not Court ordered.  It indicates a genuine show of remorse for the harm occasioned on a victim” and similarly in the State v Epo Matao (2015) N6084 which also reinforced the view that “payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their families. This act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused”. However, this Court is also aware that payment of compensations is also dependent on the circumstances of each and every particular case.

51.	A number of factors will have to be taken into account and these relate to the mitigating and aggravating factors that either go in your favour or against you. Furthermore, the payment of compensation in this case would not in any way, compensate for the trauma that the young victim has endured. Besides, even when these parties are closely relatives, it appeared that no genuine attempts have been made by parties to reconcile nor express genuine and real remorse for the crime perpetrated on the young child. As I have already expressed in the case of The State v Albert Kavena (2015) N6085), “…payment of compensation should be an expression of genuine remorse and should be voluntary; not court ordered…”

52.	Whilst I note that Ms Joseph for the State has submitted that the imposition of a sentence between 12 to 15 years would be appropriate, I consider this type of offence to be serious enough and for reasons of all the matters discussed in paragraphs 34 to 51 above, I sentence you to 20 years imprisonment less the period of 2 years 3 months 8 days that you have been held in custody. You will serve the balance of the term of sentence of 17 years 8 months 22 days in custody at CIS, Buimo.

Sentence
53.	Having convicted you, Maliaki Clement of one count of sexual penetration under s 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended you are now sentenced as follows:

(1)	Length of sentence imposed: 			20 years. 	

(2)	Pre-sentence period deducted:			2 years 3 months 8 days.

(3)	Balance of term of sentence to be served:		17 years 8 months 22 days. 

(4)	Amount of sentence suspended:			Nil 	

(5)	Time to be served in custody:			17 years 8 months 22 days.  
Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner