SC890

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 52 0F 2005

BETWEEN

SAPERUS YALIBAKUT
Appellant

AND

THE STATE
Respondent

Wewak: Jalina J, Mogish J, Cannings J
2006: 25, 27 April

APPEAL

CRIMINAL LAW– appeal against conviction after plea of guilty – whether plea properly accepted – whether trial judge erred by entering conviction – duty of trial judge to ensure that plea of guilty is properly made.

CRIMINAL LAW – sentencing after plea of guilty – duty of trial judge to sentence the offender on the basis of the facts to which he or she has pleaded guilty – duty to act on the version of facts which, within the bounds of possibility, is favourable to the offender. 

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years – absence of consent not an element of offence – whether consent is a relevant matter to take into account when sentencing – whether trial judge’s failure to take consent into account was an error of law vitiating the sentence. 

The appellant pleaded guilty to an offence under s 229A of the Criminal Code Act, engaging in an act of sexual penetration with a child under the age of 16 years. The child was an 11-year old girl. The appellant was convicted and sentenced to 17 years imprisonment. He appealed against conviction on the ground that the trial judge erred in accepting the guilty plea. He said he was confused by the trial judge’s use of the word "penetration" and he did not fully penetrate the girl’s vagina. He appealed against the sentence on the ground that it was excessive, as the girl had consented to intercourse and he did not fully penetrate her.

Held:

(1)	When dealing with a plea of guilty, the duty of the judge is to examine the depositions to check that there is evidence of the elements of the offence.

(2)	If at any stage of the trial process, from arraignment to formal entry of the sentence, the accused says or does anything to taint a guilty plea or makes it appear equivocal or if the judge observes something in the depositions that call the guilty plea into question, the guilty plea should be vacated.

(3)	In the present case the judge made no error in the manner in which he accepted the guilty plea and convicted the appellant.

(4)	When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty. 

(5)	As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt. 

(6)	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 accused.

(7)	In the present case the judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty.

(8)	Those facts related to the issue of lack of consent, which though not an element of the offence, is a matter relevant to sentence.

(9)	The trial judge erred by not giving the benefit of the doubt to the offender on the issue of consent, in a way that vitiated the sentence.

(10)	The sentence of 17 years was accordingly set aside and substituted with a sentence of 14 years imprisonment.

Cases cited

Anton Yani v The State (1999) SC615
Gabriel Laku v The State [1981] PNGLR 350
Launce Vetari v The State (1979) SC156
Public Prosecutor v Tom Ake [1978] PNGLR 469
The State v Aaron Lahu (2005) N2798
The State v Mark Kanupio and Others (2005) N2800
The State v Peter Lare (2004) N2557
The State v Saperus Yalibakut (2005) N2957

APPEAL

This was an appeal against conviction and sentence for engaging in an act of sexual penetration with a child under the age of sixteen (16) years.

Counsel

S Yalibakut, the Appellant in person
M Zurenuoc, for the Respondent

1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Kandakasi J) of the appellant, Saperus Yalibakut, on a charge of engaging in an act of sexual penetration with a child under the age of sixteen (16) years. The judgment appealed against has been published as The State v Saperus Yalibakut (2005) N2957.

BACKGROUND

2. On Saturday 16 April 2005 the appellant was involved in an incident at Kuminimbus village in the Maprik District of East Sepik Province in which he allegedly sexually penetrated an 11 year old girl. The police investigated the incident. The appellant was charged and committed for trial on 23 June 2005.

3. He was indicted before the National Court at Wewak on 20 September 2005. He pleaded guilty. Kandakasi J accepted the plea, convicted the appellant and on 26 September 2005 sentenced him to 17 years imprisonment. 

4. On 28 October 2005 he gave notice of his appeal against both conviction and sentence. This was within the forty-day period permitted by s 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

THE NATIONAL COURT PROCEEDINGS

Indictment

5. The following indictment was presented against the appellant:

Saperus Yalibakut of Kuminimbus village, Maprik, East Sepik Province, stands charged that he on the 16th day of April 2005 at Kuminimbus … engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years. 

6. The indictment was presented under s 229A (Sexual Penetration of a Child) of the Criminal Code, which 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.

Arraignment

7. The appellant was arraigned (i.e. asked to indicate his plea to the indictment) twice. This was done as he appeared to be confused. The sequence of events and what was said to the appellant and what he said in response is important.

8. On the first arraignment, the trial judge told the appellant to listen carefully and said:

The State alleges that on 16 April this year at about 11.00 am at Kuminimbus village, Maprik, East Sepik Province, you sent the victim, [named], to your house. She went there thinking nothing would happen to her but when she got to your house she refused to enter the house and you forced her to go in. Once inside the victim tried to get out of the house again but you forced her into your bedroom and there you proceeded to have sexual intercourse with the victim. At the time the victim was 11 years old and doing grade 3 at Balupuine Community School. When you did that you engaged yourself in an act of sexual penetration when the victim was under the age of 11 years old. [sic] Do you understand that story?

9. The appellant replied yes. The trial judge then read out the charge and asked the appellant if it was true or not true. The appellant replied:

Your Honour, it is true that we had sexual penetration but it is not that I raped her.

10. The trial judge asked defence counsel, Mr Mesa, if the appellant was raising a defence. Mr Mesa replied "no, the charge was explained to the appellant and he understands it". The prosecutor, Mr Kupmain, pointed out that the appellant had been charged under s 229A. He was not charged with rape. 

11. The trial judge said that he had not put anything to the appellant in the nature of rape except the part of the story that alleged he had forced the complainant into the house. The prosecutor suggested that that part may need to be amended. The trial judge then decided to re-arraign the appellant and delete the allegation that the appellant had forced the complainant into his bedroom.

12. On the re-arraignment the trial judge said:

On Saturday 16 April 2005 at about 11.00 am at Kuminimbus village, Maprik, East Sepik Province, you sent [the complainant] to your house. She went there thinking nothing would happen to her. Once she was there you took her into your bedroom and had sexual intercourse with her. At the time the victim was 11 years old doing grade 3 at Balupuine Community School. When you did that you engaged in sexual penetration of a child under the age of 16. Do you understand that story?

13. The accused replied yes. The trial judge read out the charge again and asked the appellant if the charge was true or not true. The appellant replied:

Your Honour, it is true. 

14. His Honour entered a provisional plea of guilty and asked Mr Mesa if that was consistent with his instructions. Mr Mesa replied yes and that he had no application to make. 

Conviction

15. Mr Kupmain tendered the committal court depositions. No objection was taken to their admission. The trial judge considered the depositions, including the appellant’s record of interview by the police. His Honour announced that there was overwhelming evidence to support the charge, accepted the guilty plea and entered a conviction. 

Allocutus

16. The trial judge told the appellant he had the right to address the court on what kind of punishment he should receive and what sort of factors or points the court should take into account in his favour before coming to a decision on sentence. 

17. The appellant said:

Your Honour, I would like to say I am very sorry about what I have done. I also want to say sorry to the Heavenly Father. I would like to say sorry to the Judge, and to the lawyers and to the clerks. I would also like to say sorry to the victim and to her parents and her brothers and sisters and her aunties and uncles and also I would like to say sorry to my family that I have brought shame to my family. 

Your Honour, lastly, I would like to say that my tok sori went as my family gave K1,000.00 to the victim’s family.

Submissions

18. The defence counsel, Mr Mesa, referred to a case that the trial judge, Kandakasi J, had decided in Goroka, The State v Peter Lare (2004) N2557. Mr Mesa distinguished the appellant’s case from that one as this was not a case of repeated offences over a period of years and there was no aggression other than the act itself. Mr Mesa pointed to payment of compensation as another mitigating factor. He submitted that the appellant should receive a lesser sentence than in Lare’s case (20 years) and suggested that a term of 15 to 17 years would be appropriate. 

19. The prosecutor, Mr Kupmain, indicated that the main aggravating factor was the large age difference between the appellant (aged 40) and the victim (aged 11). He also submitted that a term of 15 to 17 years would be appropriate. 

Sentence

20. The trial judge began his judgment by summarising the facts to which the appellant had pleaded guilty in these terms:

… on Saturday 16th April 2005, at Kuminimbus village, Maprik, East Sepik Province, around 11:00 am, you met the victim (named) who was returning from a visit to her aunt at the Amaku river. You asked the victim to go to your house, who initially refused but you eventually managed to persuade her to do so and she did.

When at your house you asked her to get into the house and into your bedroom. Again, she initially refused but you managed to persuade her to get into your house and then into your bedroom. Once in the bedroom, you caused the victim to lie down on your bed after you removed her clothes forcefully and slapped her with your hand when she refused to comply. Thereafter, you proceeded to have sexual intercourse with her. As you were in the process of having sexual intercourse with the victim, you heard your wife coming, so you quickly put on your trousers and went and sat at the doorway after having directed the victim to pretend to attend to sorting out your vanilla beans. Your wife however, managed to find your underwear sticking out of your pocket which was wet with sperm. Your wife proceeded to enquire of the victim as to what you did with her and she told her that you raped her.

Your wife eventually reported you to the authorities. This led to your arrest and being charged with the offence of sexual penetration. These facts and other evidence on file, disclose a possible case of rape of the victim. However, these facts were omitted and were not included in your arraignment and charge for the purposes of securing, I believe your guilty plea to the charge presented against you.

21. The trial judge then explained why he considered the sentence should be close to 17 years:

I observe in your case that rape carries a maximum of life imprisonment as its penalty, while the charge and the eventual conviction against you carry a maximum of 25 years. Because of that, you had your sentence substantially reduced already. At the same time, I note that, the maximum sentences for rape is up to 25 years for gang rapes following a conviction after trial as in The State v Eki Kondi & Ors (No 2), The State v Garry Sasoropa & Two Ors (No 2) and Ian Napoleon Setep v The State (2001) SC666. As for cases of one on one rape … the highest sentence is around 17 years where some elements of aggravation exist.

What all of these mean is that, your sentence must not be well in excess but somewhere closer to 17 years. 

22. His Honour highlighted the following mitigating factors:

(a) he pleaded guilty, thus saving time and money for the State and sparing the victim from reliving the memories of what the appellant did to her;
 (b) he is a first time offender;
 (c) he expressed remorse; 
 (d) his saying sorry appears to be genuine as he 
 voluntarily paid K1,000 compensation 

23. As for aggravating factors, his Honour highlighted:

(a) the offence was committed against a very small girl;
(b) he is much older than her;
(c) his conduct was nothing short of a worse form of child abuse;
(d) he and the victim are from the same village, so he had breached a de facto relationship of trust;
(e) he committed the offence against a small child who was going about her day’s activities innocently; 
(f) he exposed her to the risk of sexual promiscuity (the trial judge rejected the appellant’s claim in the record of interview that the victim had had sex before with other men and that she had made advances to him). 

24. His Honour concluded that the aggravating factors far outweighed the mitigating factors. Therefore a sentence close to the maximum of 25 years could be imposed. A deterrent sentence was warranted. A sentence in the range of 15 to 18 years was appropriate. A sentence of 17 years was imposed. 

THE APPEAL

25. The grounds of appeal are that:

1. the conviction was a total miscarriage of justice;

2. the sentence was excessive.

26. Ground No 1 is very broad. However, at the hearing of the appeal it became apparent that the argument was that the trial judge had erred by accepting the guilty plea as there was no evidence of sexual penetration. The appellant said he was confused by the term "sexual penetration". 

27. Ground No 2 is also broadly expressed but it is sufficiently clear what the appellant’s point of appeal is. So we also regard it as proper.

28. Both grounds of appeal will therefore be determined. 

THE MAJOR ISSUES 

29. The major issues therefore are:

(a) did the trial judge err by accepting the guilty plea?

(b) was the sentence excessive?

(c) if yes, should the conviction and/or sentence be quashed? 

APPELLANT’S SUBMISSIONS

30. The appellant argued that his guilty plea should not have been accepted as there was no evidence that he sexually penetrated the girl. He did not understand the words "sexual penetration". He was involved in sexual acts but not sexual penetration. He had made this clear in his record of interview. The medical report showed that there was no penetration. Furthermore, she approved of the external sexual act that took place. 

31. As to the sentence, it was too much as 17 years is the sort of sentence that has been imposed in cases where there has been full penetration. Here there was no full penetration. The trial judge also failed to give proper weight to mitigating factors. He gave too much weight to aggravating factors such as a breach of a relationship of trust. 

RESPONDENT’S SUBMISSIONS

32. Ms Zurenuoc, for the State, submitted that the trial judge had properly accepted the guilty plea. It was not necessary for his Honour to be satisfied that there was evidence of ‘full’ penetration, as claimed by the appellant. The definition of "sexual penetration" in the Criminal Code does not require full penetration. Partial penetration is sufficient. The appellant was represented by a lawyer. To remove any doubt about his understanding of the charge against him, the trial judge arraigned the appellant twice. 

33. As for the sentence, the maximum available was 25 years imprisonment. The trial judge properly exercised his discretion in fixing a sentence considerably less than the maximum. It was within the available range. 

FIRST ISSUE: DID THE TRIAL JUDGE ERR BY ACCEPTING THE GUILTY PLEA?

34. This raises the question of whether the procedure used by the trial judge gave rise to any miscarriage of justice. There is no doubt that the Supreme Court can review the exercise of discretion by a trial judge to accept a guilty plea. A trial judge must always be sure that an accused has properly pleaded guilty. An accused person is not irretrievably bound by a plea of guilty. 

35. To determine this issue it is necessary to firstly consider the elements of the offence with which the appellant was charged. He was indicted under s 229A(1) of the Criminal Code, which meant that the prosecution had to prove beyond reasonable doubt that:

(a) the accused engaged in an act of sexual penetration; and 

(b) it was with a child under the age of 16 years.

36. "Sexual penetration" is defined by s 6 of the Criminal Code, which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b)	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

37. We accept Ms Zurenuoc’s submission that it is not necessary – as suggested by the appellant – that there be ‘full’ penetration. If, for example, there is the introduction to any extent by a person of his penis into the vagina of another person, sexual penetration is complete for the purposes of the first element of the offence.

38. Another thing to note about the offence under s 229A(1) is that lack of consent is not an element. The presence or absence of consent can be a consideration to take into account for sentencing purposes. But lack of consent does not have to be proven by the prosecution to obtain a conviction.

39. We now consider what a trial judge must do when arraigning an accused person and obtaining a plea. The judge has a duty to accord the accused person their constitutional right to the full protection of the law. What that entails was set out by the Supreme Court in Gabriel Laku v The State [1981] PNGLR 350 Kidu CJ, Pratt, Miles JJ. The facts of that case were similar to the present case. The appellant appealed against his conviction, on a guilty plea, for unlawful carnal knowledge of a girl under the age of 16 years. When the allocutus was administered he denied penetration. The defence counsel asked the trial judge to vacate the plea of guilty but he declined to do so and proceeded to sentence the appellant. The Supreme Court stated:

Leave to withdraw a plea of guilty after conviction is a discretionary matter. It is to be contrasted with the entering of a plea of guilty when the plea has been equivocal. If there is any doubt about whether an accused person intends to plead guilty or not guilty, it should be resolved by recording a plea of not guilty and proceeding to trial. There is a constitutional presumption of innocence up until the time of conviction. The various precautions which have traditionally been taken in order to ensure that an accused person pleading guilty does in fact fully understand and appreciate what he is doing, were considered by O'Leary AJ in The State v Manga Kinjip [1976] PNGLR 86. 

Once an unequivocal plea has been entered and the court proceeds to consider sentence, the prisoner is regarded as having been convicted, and it is a matter of the court's discretion as to whether the conviction should be set aside and the plea of guilty vacated.

These matters are carefully considered and set out in the judgment of Kapi J in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1 and this Court would with respect endorse and adopt his Honour's observations. In Papua New Guinea, upon arraignment, it is not the usual practice simply to ask the prisoner whether he pleads guilty or not guilty. The ingredients of the charge are put to him by the trial judge (very often through an interpreter) and the prisoner is asked whether the allegations are true or not true. If he says that they are true, the judge may regard the prisoner as pleading guilty, or he may prefer not to accept the plea of guilty until the next step has been taken, namely a consideration of the prosecution case which is comprised in the depositions taken before the magistrate at the committal hearing. If the judge is satisfied in the light of the prosecution case that it is safe and proper to accept the plea of guilty, he will go on to administer the allocutus, when the prisoner is asked whether he has anything to say before sentence is passed. It is at this stage that the prisoner may be regarded as having been convicted. Until then the accused has the right to insist on pleading not guilty.

Nevertheless it is quite clear that even after conviction and at any time up until the final disposal of the case by the passing of sentence and the entry of the conviction and sentence in the record at the end of the sittings, the court has power to set aside its own conviction (and sentence if already passed). The exercise of this power is wholly discretionary. These principles have been laid down in many decisions in other places and they may be regarded as part of the underlying law of Papua New Guinea. …

Whilst there will undoubtedly be cases in which it will be proper to refuse to allow a plea of guilty to be withdrawn after conviction (for instance where the application is frivolous or based on a flimsy technicality), nevertheless generally speaking where the discretion is exercised against the prisoner it will be closely examined by the appellate court: R. v. Foley [1963] NSWR 1270.16. It is well known that persons admit guilt for all sorts of reasons, including the wish to get the case over and done with. In particular, where the question turns on the reliability of an accused person's statement to the court, it can be resolved satisfactorily only by the calling of evidence in the ordinary way. 

The Supreme Court set aside the conviction, entered a plea of not guilty and ordered a retrial. 

40. A number of principles and practices about dealing with a guilty plea emerge from Laku’s case. It is useful to summarise them here, to determine the appellant’s first ground of appeal: 

(a) The trial judge receives the indictment containing the charge and ensures that it is properly drafted.

(b) The trial judge hears from the prosecutor on what the allegations are.

(c) The trial judge checks that the allegations encompass the elements of the charge.

(d) The trial charge reads the charge to the accused and asks the accused if he or she understands the charge. This starts the process of arraignment.

(e) The trial judge explains the allegations (or story) to the accused and asks the accused if he or she understands the story.

(f) The trial judge then asks the accused if the charge or the story is true.

(g) If the accused says it is true the judge enters a provisional plea of guilty subject to reading the committal court depositions.

(h) The judge examines the depositions to check that there is evidence of the elements of the offence.

(i) If there is evidence of the elements of the offence, and the judge is satisfied that it is safe and proper to accept the plea, the judge formally accepts the plea and convicts the accused.

(j) The judge administers the allocutus, ie the accused (now the prisoner or the offender) is asked if he or she has anything to say on the issue of punishment.

(k) The judge proceeds to sentence the offender, taking into account what is in the depositions and what has been said in the allocutus.

(l) If at any stage of the process, from arraignment to formal entry of the sentence, the accused or the offender says or does anything to taint the guilty plea or make it appear equivocal, or if the judge observes something in the depositions that call the guilty plea into question, the judge should vacate the guilty plea. 

(m) Likewise the accused or the offender should be given the opportunity to apply to vacate the guilty plea at any time. Determination of an application to vacate a guilty plea is a matter for the discretion of the judge. Special care needs to be taken if the application is to be refused. 

41. When we apply those principles and practices to the present case, in light of the elements of the offence the appellant was charged with, we can find nothing wrong with the way in which the plea was accepted and the conviction entered. 

42. During the course of the arraignment, the trial judge confirmed with the appellant’s lawyer that the appellant understood the charge. If that is done, it is an indication that – unless something else happens to taint the plea – a guilty plea has been properly accepted (Launce Vetari v The State (1979) SC156, Supreme Court, Raine DCJ, Greville-Smith J, Andrew J; Anton Yani v The State (1999) SC615, Kapi DCJ, Sheehan J, Kirriwom J).

43. When he arraigned the appellant the second time the trial judge deleted any references to lack of consent. That was done after the appellant said that it was true that he had sexually penetrated the complainant but not true that he had raped her. His Honour put the allegations to him in a way that encompassed the two elements of the charge: he took the complainant to his bedroom and had sexual intercourse with her; and she was only 11 years of age. Then his Honour read out the indictment and asked the appellant if the charge were true. There was no equivocation in the appellant’s reply:

Your Honour, it is true.

44. His Honour entered a provisional plea of guilty and considered the depositions. We note that in his record of interview the appellant indicated that intercourse was consensual, that he released his sperm into her vagina but he did not have full penetration. This was, in effect, an admission to the elements of the offence. There was also a witness statement by the victim plus other, circumstantial, evidence. There was a medical report of an examination conducted on the day of the incident that showed that there was sperm in the girl’s vaginal cavity. His Honour accepted the plea, entered a conviction, then administered the allocutus. The appellant repeatedly said he was sorry. He said nothing to taint his guilty plea. 

45. Nothing that happened after that suggested that the appellant wished to vacate the guilty plea. 

46. The trial judge did not err in accepting the guilty plea. His Honour followed normal, proper procedures and gave the appellant the full protection of the law. The first ground of the appeal is dismissed. 

SECOND ISSUE: WAS THE SENTENCE EXCESSIVE?

47. We have examined the judgment on sentence and there are three (3) aspects of it that require comment.

48. First, in summarising the facts to which the appellant pleaded guilty his Honour re-introduced the allegations of force and lack of consent that had been deleted when the appellant was arraigned the second time. His Honour said, amongst other things:

The facts to which you pleaded guilty are these …

You asked the victim to go to your house, who initially refused but you eventually managed to persuade her to do so and she did.

When at your house you asked her to get into the house and into your bedroom. Again, she initially refused but you managed to persuade her to get into your house and then into your bedroom.

Once in the bedroom, you caused the victim to lie down on your bed after you removed her clothes forcefully and slapped her with your hand when she refused to comply. …

Your wife proceeded to enquire of the victim as to what you did with her and she told her that you raped her. [Emphasis added.]

49. The italicised statements are allegations of force and lack of consent that the appellant did not plead to. His Honour erred by misstating the facts to which the appellant pleaded and sentencing the appellant on the misstated facts. 

50. Secondly, his Honour stated that the appellant had received a reduction in the sentence:

I observe in your case that, rape carries a maximum of life imprisonment as its penalty, while the charge and the eventual conviction against you carry a maximum of 25 years. Because of that, you had your sentence substantially reduced already. 

51. The appellant was not charged with rape and did not plead guilty to rape. His Honour might perhaps have indicated to the appellant that he was fortunate not to have been charged with rape, in which case he would have been subject, if convicted, to a maximum sentence of life imprisonment. However to tell a convicted person that he has already received a reduction in his sentence is another thing, and we do not think that this was a proper statement of law. 

52. Thirdly, his Honour failed to have regard to the appellant’s persistent claim that the sexual penetration he engaged in was consensual. This was an error as in our view the question of whether a child under the age of sixteen (16) years consents to sexual penetration is a matter that can be relevant to sentence. 

53. If there are significant issues of fact arising from the depositions or the allocutus that were not in the summary of the facts to which the accused pleaded guilty, the court should generally act on the version of the facts, which, within the bounds of possibility, is most favourable to the accused. (Public Prosecutor v Tom Ake [1978] PNGLR 469, Supreme Court, Prentice CJ, Pritchard J, Greville Smith J; The State v Mark Kanupio and Others (2005) N2800, National Court, Cannings J; The State v Aaron Lahu (2005) N2798, National Court, Cannings J). In the present case, his Honour did not give the appellant the benefit of any doubt on the consent issue, as we think he should have. 

54. The upshot is that the trial judge erred in the three (3) respects outlined above. His Honour should not have dealt with the case as being tantamount to rape and should instead have sentenced the appellant on the presumption that the girl consented to penetration.

55. In determining the extent to which the presence of consent is a mitigating factor, each case must be considered on its merits. The younger the child the less likely it will be that consent will be a mitigating factor. If the child is fourteen (14) or fifteen (15) years old, consent or lack of it is more likely to be relevant. If the child is aged ten (10) or under, consent would generally seem to be irrelevant. 

56. In the present case, the child was only eleven (11) years old and the question naturally arises whether she was capable of understanding the nature of sexual penetration and genuinely consented to it. However, in support of the appellant’s claim that she did consent – in fact, he claimed that she made advances towards him – are the indications emerging from the medical report that she was not physically injured and may have had sex before. 
57. On balance, the trial judge should have given the benefit of the doubt to the appellant as he had pleaded guilty. We consider that the failure to do so meant that a mitigating factor was not taken into account and the sentence, which in other respects was a proper exercise of discretion, was excessive. 

THIRD ISSUE: SHOULD THE CONVICTION AND/OR SENTENCE BE QUASHED? 

58. The conviction will not be quashed as the trial judge made no error in accepting the guilty plea. However, for the reasons outlined above, we are of the opinion that a less severe sentence is warranted in law and should have been passed. We will quash the sentence of 17 years and pass in substitution for it a sentence of 14 years imprisonment.

JUDGMENT

59. The Supreme Court directs entry of judgment in the following terms:

1	dismisses the appeal against conviction by the appellant Saperus Yalibakut;

2	allows the appeal against sentence;

3	quashes the sentence of 17 years imprisonment; and 

4	passes in substitution for it a sentence of 14 years imprisonment.

Judgment accordingly.
____________________

Self-represented: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent