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State v Pipon [1989] PGNC 84; [1988-89] PNGLR 179; N737 (26 May 1989)

N737

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS PIPON

Goroka
Brunton AJ
24 May 1989
26 May 1989

CRIMINAL LAW - Sentence - Defilement of girl under 12 - Sentencing principles - Appropriate tariffs - Sentencing analogous to rape - Criminal Code (Ch No 262), s 213(1).

CRIMINAL LAW - Sentence - Defilement of girl under 12 - Accused first offender aged 18 years - Victim aged 18 months - Infected with gonorrhoea - Sentence of seven years - Criminal Code (Ch No 262), s 213(1).

The following guidelines may be taken as appropriate to sentencing for the offence of defilement of girls under 12 years contrary to s 213 of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is life imprisonment:

(1) sentencing policy should not only protect the public and young girls but should also address the offence in its social context;

(2) because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and lack of consent is a vital element, the principles of sentencing for the offence of rape should be applied.

John Aubuku v The State [1987] PNGLR 267, considered.

(3)

(a) on a plea of not guilty, where the accused is mature and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point;

(b) where the age gap between the victim and the accused is narrow, a sentence appropriate to a juvenile offender may be appropriate;

(c) the actual sentence imposed may vary depending on the facts, such as, the frequency of the acts, the duration of the relationship and whether or not any permanent physical or psychological damage has been done to the victim or the family;

(d) the sentence may be increased for aggravating circumstances such as: offences committed over a long period of time; offences where the accused is pathologically driven to sex with young children; resulting pregnancy; the infliction of sexually transmitted diseases; and offences involving very young children; any of the above in combination with the status of the accused as a person in loco parentis to a child, or to whom the child gives its complete trust; acts of group sex involving children and a number of adults; and organised child prostitution (including conspirators, aiders, abettors and counsellors).

Held

On a plea of guilty to a charge of unlawful carnal knowledge of a girl under 12 years under s 213(1) of the Criminal Code (Ch No 262), where the accused was a first offender aged 18 years and the victim 18 months and where the victim was infected with gonorrhoea, a sentence of seven years in hard labour should be imposed.

Cases Cited

Acting Public Prosecutor v Makin and Kasen (Supreme Court, SC 205, 7 August 1981, unreported).
John Aubuku v The State [1987] PNGLR 267.
R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.
R v Crowther (judgment No 5187/A/73, 14 March 1975, unreported).
The Secretary for Law v Kwauga [1974] PNGLR 135.

Sentence

An accused pleaded guilty to a charge of defilement of a girl under 12 years contrary to s 213(1) of the Criminal Code (Ch No 262) and the following judgment was delivered on sentence.

Counsel

D E Ashton-Lewis, for the State.
J M Teine, for the accused.
Cur adv vult

26 May 1989

BRUNTON AJ: An indictment was presented to me against Thomas Pipon for the defilement of a girl under the age of 12 years contrary to s 213(1) of the Criminal Code (Ch No 262).

The accused was first identified as being the person named in the indictment. He was arraigned in terms: that on 14 November 1985, at Goroka, he was looking after the victim, and had sexual intercourse with her; that the victim was under 12 years of age. He was asked whether or not what the State alleged was true or not true, had he broken the law? He replied, "Yes, it’s true". Mr Teine, who appeared for the accused, said he had no applications to make. Mr Ashton-Lewis, for the State, presented the deposition and gave a somewhat lengthy description of the facts of the case. After reading the depositions, and noting that there were no admissions made on them by the accused, I provisionally entered a plea of guilty in order to hear the allocutus. On the allocutus the accused made a short statement in which he apologised for what he had done and showed contrition. Mr Teine in his address emphasised the youth of the accused, his previous good character, the absence of any prior convictions, that the accused had pleaded guilty to an offence in respect of which the State did not have a strong case. Mr Teine submitted that without the admissions of the accused, the State had to rely on circumstantial evidence. Mr Teine, on behalf of his client, denied any breach of the victim’s hymen, and said that the accused admitted only rubbing his penis against the labia majora. I allowed the State to reply to these submissions as Mr Ashton-Lewis asserted that the State had a strong case. Although stronger evidence was not available at the committal proceeding, I adjourned the case to consider both conviction and sentence.

THE FACTS

The accused was 18 years old at the time of the offence, which occurred in November 1985. He is from the Western Highlands Province and at that time was visiting the family of some relatives in Goroka as a house-guest and child-minder, while the victim’s father was overseas.

On 14 November 1985, the mother of the victim had left the victim, her 18-month-old daughter, in the care of the accused and another youth while she went out. She returned about 5 pm and found her daughter unattended, with the two youths asleep. She took the girl and was about to wash her when she noticed what she thought to be sperm between the child’s legs. The mother then asked the two youths which of them had interfered with her daughter. Both youths denied any impropriety. The child was then taken to the Goroka Base Hospital for examination, and was found to be infected with gonorrhoea. It transpired that the accused had been treated at the Sexually Transmitted Disease Clinic of that Hospital on 13 November 1985.

THE ACCUSED

At the time of the offence the accused was about 18 years old. He is a first offender and has pleaded guilty. On 24 February 1986, he was committed for trial by the Goroka District Court, after which he returned to his village near Togolia in the Western Highlands Province. He has remained at his village since that time. Mr Teine tells me that he has become a born-again Christian and has reformed. Although a bench warrant was issued in May 1986 the police failed to execute it. Whether this was through incompetence or corruption is not clear, but the State Prosecutor told me that he had made a number of attempts to get the police to arrest the accused. At the beginning of this circuit, after being told this, I summoned the Provincial Police Commander into the National Court, and ordered him to send his men to the Western Highlands Province to effect an arrest. This was done. The accused is now about 21 or 22 years old.

THE SENTENCE

The maximum penalty for an offence under s 213(1) of the Criminal Code is life imprisonment. I noted that the penalty is the same under s 5 of the Sexual Offences Act 1956 (UK).

D A Thomas, in his book Principles of Sentencing, 2nd ed (1979) at 124-125, describes the sentencing patterns of the courts in the United Kingdom:

"Although a few cases can be found where the offender is under 21 [three cases in which the Court upheld, substituted or would have preferred borstal training], the typical appellant in cases of unlawful sexual intercourse with girls under 13 is an older man, often in his fifties or sixties. In most cases the Court upholds a tariff sentence (although presumably psychiatric measures would be approved in appropriate cases), and the normal sentencing bracket seems to be between three and five years, although longer sentences are occasionally upheld. [ Fn 2 at 124, Crowther, man 45, intercourse with 9-year-old daughter of couple who had taken him into their home and treated him as a member of family; ten years ‘too severe’ — reduced to seven.] In Prescott a man of 62 admitted intercourse and indecency with an 11-year-old girl who had come to his house to play with his granddaughter. The Court considered that in view of his character and the probability that no further offences would be committed, the sentence could be reduced from five years to three. In Major a man of 62 admitted a number of offences of unlawful sexual intercourse and indecent assault committed over a period of years with a girl between the ages of 6 and 10. The Court stated that a sentence of imprisonment was necessary to ensure ‘the protection of young members of the public and ... demonstrate the public’s revulsion at the type of crime committed’, but that the total of six years’ imprisonment was ‘longer than was necessary for a person of the age of this appellant’. Sentences totalling four years were substituted. In Clarke a man of 54 admitted several acts of intercourse and indecency, committed over a period of time with a girl between the ages of 8 and 15, who was the daughter of a woman with whom he had been associating. The Court said that although ‘severe sentences’ were necessary in cases of this kind to indicate ‘society’s abhorrence of such matters’, nine years’ imprisonment was too long, and sentences totalling five years were substituted. These cases appear to indicate that the frequency of the acts and the duration of the relationship are the significant criteria, and that the offence will be aggravated where the offender takes advantage of some relationship with the child or confidence of the parents to commit the offence. [Fn 2 at 125, Obado: intercourse and other offences by man, 31, with illegitimate daughters of wife; five years upheld; Thomas: intercourse leading to pregnancy with 11-year-old daughter of woman with whom the appellant living; five years upheld; Wetherall: man 31 intercourse with 12-year-old daughter of friend, photographs taken, other children involved; five years reduced to four.]

Thomas deals with the analogous offence of indecency with small children, at 128-130 of his book.

In Papua New Guinea, sentencing patterns for offences under s 213(1) of the Criminal Code by the National Court during 1988 and 1989 were:

In The Secretary for Law v Kwauga [1974] PNGLR 135, the Supreme Court, while dealing with an offender who had a prior conviction of nine years for the rape of a young teenage girl, and was sentenced to two years (and a restriction of movement order) for the unlawful carnal knowledge of a nine-year-old girl, varied the sentence and imposed a term of four years imprisonment. The victim suffered lacerations, had some difficulty walking, and the court described it as a "bad case".

The Supreme Court said (at 138):

"... taking into consideration all the circumstances we are of the opinion that the sentence of two years’ imprisonment, even coupled with a restriction of movement order, was manifestly inadequate. Further we consider that the trial judge proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and that insufficient weight was given to the need to protect the public and in particular, young girls, from this type of offence."

The range of the tariff for the United Kingdom cases appeared in the early 1970s to be between three to five years where older men offended with girls between the ages of six to 11 years. Youths were sent to borstal. A sentence of seven years was upheld in Crowther (judgment No 5187/A/73, 14 March 1975, unreported) where a 45-year-old man who had been taken into a family, seduced the nine-year-old daughter.

The principles in the United Kingdom cases with aggravated offences are the frequency of the acts, the duration of the relationship, the position of trust or dependency of the accused, the victim and the family, pregnancy, photography of indecent acts, and the involvement of other children.

Although there is one recent Papua New Guinea case involving an eight-year-old in which a six-year term of imprisonment was imposed, and six other recent cases which come within the United Kingdom tariff of three to five years, in over half the cases, sentences in Papua New Guinea have been imposed which are well below the lower limit of the United Kingdom tariff.

Since the early 1970s when Thomas gathered his data for the second edition of his book, there has been a change both in knowledge and public attitudes that relate to child abuse. It is now known that sexual assaults on children are by no means rare incidents. It is thought that one in four children may experience some sexual harassment from an adult, very often with a person from within their own family or upon whom they are dependent (teachers, scout-leaders, choir-masters, etc).

There is no recent Papua New Guinean study on customary attitudes towards intercourse with sexually immature girls. In 1975, Dr M Strathern summarised anthropological information on nine sexual offences under the Criminal Code and analysed it in the light of the possible future reform of the Code: M Strathern, Report on Questionnaire Relating to Sexual Offences as Defined in the Criminal Code, New Guinea Research Unit, Boroko, February 1975.

Dr Strathern said (at 26):

"... nearly everywhere [in Papua New Guinea] sexual intercourse with a girl not sexually mature is repugnant and offensive, and an attack on the girl’s person. Attitudes do not seem to have been subject to change on this point. Nearly everywhere it is extremely rare (in some cases respondents could cite no incident, in several no recent incident). [Strathern adds a footnote: ‘Though in one instance it was said to be on the increase where before it was unheard of.’] It is an improper act in the true sense of the word, for sexual connection in such circumstances is itself distasteful. On the part of the older party, this perhaps comes nearest of all the matters under consideration to an ‘unnatural act’ which is also an offence."

My own understanding of customary attitudes, which I note judicially, conforms with Dr Strathern’s work. There is almost a uniform custom which protects sexually immature girls from the advances of adults. But the nature and the frequency of incest and child abuse cases over the past 18 months lead me to believe that there may have been a change in the incidence of these offences. I would hypothesise that there may have been an increase in the number of offences brought before the courts, but more likely, that the incidence of this type of offence in Papua New Guinea society is similar to the incidence in metropolitan societies. That remains to be established but it is a workable hypothesis.

As public consciousness has been raised over incest and child abuse during the past five years, it can be concluded that incest offences may have been hidden from knowledge in the past. Only further research of the type undertaken by Strathern and Clifford, Morauta and Stuart (Law and Order in Papua New Guinea, Institute of National Affairs, Port Moresby, 1984), could reveal what is really happening in our society.

There is another area of scholarship that is relevant when planning socially the role of the female victim of child abuse. It is found in the feminist critique of the criminal law. Simone de Beauvoir in her book The Second Sex articulates the ideological basis for the critique:

"This humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being ... She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the subject, he is the Absolute — she is the Other ..." (see S K Mukherjee and J A Scutt, Women and Crime, George Allen & Unwin, Sydney, 1981, at 1).

The cases involving rape, sexual assault, defilement and child prostitution that I have seen on this circuit, the economic marginality of women in this province and the near-complete powerlessness of women within the formal polity leads me to believe that de Beauvoir’s critique is not inappropriate in the Eastern Highlands Province of Papua New Guinea.

Intercourse with very young girls when placed in this type of analysis reveals the exploitative and oppressive nature of gender-politics, and sites the incidents of violence and exploitation in the early childhood of the victim. The feminist critique could then be extended to argue that the exploitation and oppression continues throughout the life of women: in the case before us, it would say, almost from the cradle to the grave.

Is it justifiable to use a macro-critique from outside the orthodox legal discourse to found, in part, a micro-legal policy?

The analysis may be contrasted with the carefully chosen words of the first of the National Goals and Directive Principles in the Constitution:

"1. We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others."

The Constitution places a duty on the courts to apply and give effect to the National Goals and Directive Principles as far as lies within their power: s 25(2). Where any power conferred by law, such as the power to pass a sentence of imprisonment under the Criminal Code, can reasonably be applied without failing to give effect to the intention of Parliament so as to give effect to the National Goals and Directive Principles, then it is to be enforced in that way (Constitution, s 25(3)).

In my view, the broad direction in the First Goal should alert and sensitise the courts to the overall locality of defilement within gender-politics. Defilement is not just a repugnant, offensive and unnatural offence against a particular child (Strathern) but may be also seen as part of a wider oppressive structure. Sentencing policy needs not only "to protect the public and in particular, young girls" (The Secretary for Law v Kwauge at 138), but also to address the offence in its social context.

On the whole, compared with sentencing practice in the United Kingdom in the 1970s, the sentencing patterns for defilement in this jurisdiction appear somewhat lenient. With few published judgments, there is little guide to the principles of sentencing for this offence.

Recently the Supreme Court has laid down its sentencing principles in the case of John Aubuku v The State [1987] PNGLR 267, for offences of rape.

By analogy, that case is useful when deciding sentences for defilement, for two reasons.

First, Aubuku stresses the seriousness of rape by indicating a base line for those offences where there are no mitigating or aggravating factors. In a contested case, that is five years. Aubuku also discusses the weight that should be given to circumstances of aggravation — such as "pack rapes", pregnancy, serious physical injury. These considerations in my view, by analogy, can be used to give some structure to sentences for defilement. This is so because both offences involve unlawful sexual intercourse, and both offences are regarded by Parliament, which fixed a maximum term of life imprisonment, as very serious.

Secondly, Aubuku’s case is relevant in this case because rape is an offence in which lack of consent is a vital element. Although in some defilement cases consent is present, lack of consent is not an essential ingredient. But where the victim is a very young child, a baby, there can be no question of consent. An 18-month-old baby is not capable of any form of consent. In these circumstances, the principles of sentencing for rape are applicable and I will apply them by analogy.

However, I note that the United Kingdom tariff of between three to five years in place during the early 1970s perhaps needs some adjustment in the light of R v Billam [1986] 1 WLR 349, the Court of Appeal decision which provided the basis of the Supreme Court’s reasoning in Aubuku.

If the starting point for a contested defilement case, where the accused is mature and there are no other mitigating or aggravating circumstances, is fixed at about five years imprisonment, then there may be seen to be some parity with rape cases. It matters not that a girl under 12 years of age consents to a sex act with a mature man, in my view, because generally the immaturity, the lack of discretion and the dependency of a child negate a true act of free will. That apart, the offence is cast in terms of strict liability, although precociousness may be a mitigating factor when the accused is either young himself, under some physical or mental disability, or very old, but not otherwise.

Defilement is generally an offence of the middle-aged or the old, but occasionally it occurs with the young. When the age-gap between the victim and accused is narrow (victim 11 to 12, and accused 13 to 16) then a sentence appropriate to a juvenile offender is in order. Young first offenders should be treated with leniency whenever possible, and those between the ages of 18 and 22 may well be considered for non-custodial, or partial non-custodial treatment. This may also apply to offenders who are disabled mentally or physically but not otherwise a threat to the public.

The middle of the tariff, four to seven years or so, appears to me to be appropriate for older offenders. The actual sentence imposed may vary depending on the facts — the frequency of the acts, the duration of the relationship, and whether or not any permanent damage has been done to the victim, or the family.

Circumstances of aggravation which may take the sentence beyond five or six years would include offences committed over a long period of time; offences involving a number of children; offences which indicate that the accused is pathologically driven to sex with children; the pregnancy of a young girl; the infliction of a sexually transmitted disease on the victim; the infliction of AIDS on the victim by a person who knows that they have been diagnosed as AIDS positive; offences involving very young children; any of the above in combination with the status of the accused as a person in loco parentis to a child, or to whom the child gives its complete trust; acts of group sex involving children and a number of adults; organised child prostitution (including conspirators, aidors, abettors and counsellors).

THOSE FACTORS WHICH FAVOUR THE ACCUSED

At the time of the offence the accused was relatively young, about 18 years old. He had no prior convictions. He has pleaded guilty. He is now a born-again Christian and has apparently led a good life in the three years or so since he committed the offence.

THOSE FACTORS WHICH ARE AGAINST THE ACCUSED

The age of the victim is an aggravating circumstance that calls for severe condemnation. A society that cannot or will not protect its babies is morally bankrupt. There is a need to send a message to this accused, and to other possible offenders, that the sanction for this type of offence is firm. For good reason both Melanesian and Western European traditions treat these offences seriously. It may be there are societies that consider them lightly, but I do not know of them.

The victim was found to be infected with a sexually transmitted disease, gonorrhoea. My understanding is that it is not possible to get such a disease except by sexual contact. The accused had been diagnosed as a gonorrhoea patient a day before the offence. As a matter of fact, I infer that the accused infected the victim. The transmission of these diseases amongst the adult population is a tragedy, and we must be open-minded about this. People need to be encouraged to go to the clinics and report them. We live in an age which is permissive, in which the moral values of our parents and grandparents have been changed. One constant between the different generations has been the need to protect children from the consequences of their own indiscretions and from the indiscretions of adults. The tragedy of children infected by the AIDS virus through blood transfusions is in point. The wanton infection of a very young child as a consequence of satisfying the lust of a young man is very serious. Gonorrhoea is treatable; AIDS is not; the two are socially associated diseases. However, I remind myself that the accused infected the victim with gonorrhoea, and not AIDS which is a much more serious disease.

In balancing the sentencing principles of not imposing a crushing sentence upon a young first offender who has pleaded guilty, against the need for sanction and deterrence, the gravity of this particular offence weighs against the accused. If we have to choose between the rights of the very young and the rights of young men, then we must protect the children. His relative youth is not much help to him in the circumstances of this case.

No comparable cases have been put before me. The highest recent sentence in Papua New Guinea is six years where the victim was aged eight years. In the United Kingdom I note a sentence of seven years was imposed upon a 45-year-old man for defiling a nine-year-old girl.

Here the circumstances of aggravation are extreme. If this was a contested case involving an older person, I would fix the sentence at between nine to 10 years in hard labour. "Youth has always been one of the most effective mitigating factors especially in the case of the first offender": Acting Public Prosecutor v Makin and Kasen (Supreme Court, SC 205, 7 August 1981, unreported), but in this case it has to be balanced with the heinousness of the offence and the need to deter. I take into account that the accused has pleaded guilty.

I convict the accused of the defilement of girl under 12 years and sentence him to seven years in hard labour.

Sentence of seven years IHL

_________

Lawyer for the prisoner: E Kariko, Public Solicitor.
Lawyer for the State: K Bona, Public Prosecutor.