SC2199

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 17 OF 2019

BETWEEN
SEBASTIAN MANKIA
Appellant

AND
THE STATE
Respondent

Kokopo: Gavara-Nanu J, Mogish & Yagi JJ
2020: 27th July & 1st August

APPEAL – Appeal against sentence - Sexual penetration – Victim –  15 years old – Appellant – 60 years old – Age difference of 45 years – Existing relationship of trust, authority and dependence – Sexual penetration of granddaughter – Sexual Offences and Crimes Against Children’s Act, 2002; s. 229 A (1) and (3) – Sentence of 15 years – Prescribed maximum penalty  - Life imprisonment.
APPEAL – Serious breach of trust – Offender grandfather to victim – Victim very vulnerable – Sexual penetration by grandfather a serious and special aggravating factor – Sentence of 15 years not manifestly excessive – Appeal dismissed.   

Cases Cited:

Roger Jumbo & Aidon Awatan v. The State [1997] PNGLR 197
The State v. Jeseral Komblau (2015) N5995
The State v. Nanas Libai [2015] N5767
The State v. Peter Anis (Unreported) CR No. 627 of 2013
William Norris v. The State [1979] PNGLR 605

Counsel:  

L. Mamu for the Appellant
C. Sambua with G Tugah for the Respondent
1st August, 2020

1.	BY THE COURT: The appellant appeals against his sentence of 15 years given by the National Court on 12 April, 2019, after he pleaded guilty to one count of sexual penetration of his granddaughter (victim) who at the time was 15 years old, thereby contravening s. 229 A (1) and (3) of the Criminal Code Act, (as amended), Chapter No. 62. The prescribed maximum penalty for this offence is life imprisonment.
2.	The brief undisputed background facts are these. At the time of the offence, the victim was living with the appellant and his family. The offence occurred in an afternoon of an unknown date in September, 2017 inside the appellant’s house. At the time, the appellant was 60 years old. The victim was living with the appellant and his family after her mother who was the biological daughter of the appellant died. The victim was attending school and doing Grade 5. On the day of the offence, the victim finished school in the afternoon and went home, she went into a room to have a nap. The appellant followed the victim into the room and forced her to have sexual intercourse with her. Sometime later, she was assaulted by the wife and daughter of the appellant, as a result she escaped and went and stayed with another female relative. The victim later told the female relative what the appellant did to her. The matter was reported to the police and the appellant was arrested.
3.	The appellant’s grounds of appeal are; his wife is old and is unable to take care of their children. His wife is unemployed, and is concerned about her welfare and those of his children.
4.	The Public Solicitor, Mr. Leslie Mamu, counsel for the appellant urged the Court to consider the following mitigating factors; the appellant’s early guilty plea which saved time and costs for the State from running a full trial, the early guilty plea also saved the victim from the embarrassment of giving evidence and reliving the incident, the appellant cooperated fully with the police and made full admissions in his record of interview, no weapons were used, the victim did not suffer any physical injury, the victim did not fall pregnant, the victim did not contract any sexually transmitted decease, and the appellant is a first-time offender.
5.	Against above mitigating factors, Mr. Mamu also acknowledged that the offence constituted abuse within close family members and there was betrayal of trust, authority, and confidence by the appellant. There was an age difference of 45 years between the appellant and the victim. The abuse occurred more than once because in another time, the appellant tried unsuccessfully to have sexual intercourse with the victim when he was disturbed by his wife. The victim was highly vulnerable as she needed a place to live after her mother died. The appellant took advantage of the situation to sexually molest and abuse her. Mr. Mamu also noted the trial judge’s remarks that the appellant did not express any remorse and did not compensate the victim.
6.	Mr. Mamu was however, critical of the approach taken by his Honour regarding lack of expressed remorse by the appellant. He argued that his Honour failed to appreciate that appellant’s early guilty plea was a genuine sign of remorse which had more weight and relevance than any remorse expressed in allocutus. Mr. Mamu referred to The State v. Jeseral Komblau (2015) N5995 in which Justice Geita said an early guilty plea should be rewarded with reduction in sentence. It was also submitted that the learned trial judge failed to consider that appellant was a first-time offender, which he argued should have mitigated the sentence. Mr. Mamu also submitted that the victim’s behavior in front of the appellant contributed to the offence. The appellant in his record of interview told the police that the victim used to touch his bottom and his front and exposed her breasts and thighs to him. 
7.	It was also submitted that the learned trial judge failed to consider appellant’s story which favoured the appellant. For this proposition, reliance was placed on Roger Jumbo & Aidon Awatan v. The State [1997] PNGLR 197. 
8. 	Mr. Mamu further submitted that the failure by the learned trial judge to address matters favouring the appellant without any reason being given amounted to breach of the rules of natural justice as enshrined in s. 59 of the Constitution.
9.	Finally, Mr. Mamu submitted that there are identifiable errors in the exercise of learned trial judge’s discretion and the Court should allow the appeal and substitute 10 years for the sentence given by the learned trial judge.
10.	The Public Prosecutor, Mr. Kaluwin, counsel for the State on the other hand argued that the appellant has failed to show any error in the exercise of sentencing discretion by the learned trial judge and urged the Court to dismiss the appeal. Mr. Kaluwin placed reliance on William Norris v. The Sate [1979] PNGLR 605, in which the Supreme Court among others, said the onus is on the appellant to demonstrate that the learned trial judge fell into an error in exercising his sentencing discretion. 
11.	It was submitted that the learned trial judge carefully considered all the relevant factors in arriving at the sentence. Therefore, there is no basis for this Court to disturb the sentence and urged the Court to dismiss the appeal.
12.	Having considered the material before us, including submissions by both counsel which were equally forceful, the two factors which influenced our minds in reaching our decision are the very big age gap between the appellant and the victim, which was 45 years, and more importantly, the position of trust and confidence in which the appellant was to the victim. Besides these factors was that the victim was in a very vulnerable position following the death of her mother, as she sought refuge in the appellant, which the appellant took advantage of for his sexual gratification.  The appellant as the victim’s grandfather had moral, customary and even legal obligation to protect and care for her. He was expected not only by the victim but also by the community at large to step in and be the father and mother of the victim. The appellant therefore not only breached the trust and confidence the victim had in him but of the community as well.  
13.	Looking at the decision of the learned trial judge, we find that his Honour carefully considered all the relevant factors in deciding the sentence for the appellant. We also note that his Honour considered and compared other decisions on sexual abuse of under-age children and the sentences given in those cases to guide him in deciding the sentence. For example, his Honour referred to the case of The Sate v. Nanas Libai [2015] N5767. In that case, the offender was 67 years old, and the victim was 11 years old. The offender was given 7 years fully suspended sentence. But the significant difference between that case and this case is that in that case, there was reconciliation and compensation was paid. That is not the case here and that case did not involve breach of trust. Another case cited by the learned trial judge is The State v. Peter Anis (unreported) CR No. 627 of 2013, the prisoner was a security guard at the school the victim was attending. The Court found there was “serious” breach of trust. The prisoner was sentenced to 16 years.
14.	In this case, the prosecution asked for 20 years imprisonment, but his Honour rejected the argument because of the age of the appellant. In so doing, his Honour said had it not been for his age, he would have added “additional”3 years. In fact, 15 years was the head sentence because from that, 5 months 12 days custody period were deducted. The appellant was left to serve 14 years 6 months 8 days.  
15.	In the circumstances, we find no error in the exercise of the sentencing discretion by the learned trial judge. We therefore dismiss the appeal and confirm the sentence.

Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyers for the State