Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Trosty [2004] PGNC 103; N2681 (10 September 2004)

N2681

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 755 of 2004

THE STATE

-V-

EDDIE TROSTY

MANUS: KANDAKASI, J.
2004: 7th and 10th September

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Sexual penetration of girl under 16 years – Several instances of – Change in legislation increasing penalty - Purpose and effect on sentencing discretion – Sentence has to be beyond maximum limits under old provision - Guilty plea by first time offender - No Expression of remorse and sympathy not genuine – Sentence of 5 years imprisonment imposed.

Cases cited:
The State v. Sottie Apusa [1988-89] PNGLR 170.
The State v. Peter Yawoma (unreported judgment 19/01/01) N2032.
The State v. Attiock Ishmel (12/10/01) N2294.
The State v. Jason Dongoia (unreported judgment 13/12/00) N2038.
The State v. Damien Mangawi (13/06/03) N2419.
The State v. Peter Lare (20/0504) N2557.
The State v. Kenny Reuben Irowen (24/05/02) N2239
The State v. Amos Kiap (19/03/3) N2452
Rudy Yekat v. The State (22/11/00) SC665.

Counsels:
F. Kupmain for the State
A. Raynond for the Accused

10th September, 2004

KANDAKASI, J: You pleaded guilty to a charge of sexual penetration of a child under the age of 15 years who I will only refer to as the victim between 01st of April and 30th August 2003, at Western Island, here in Lorengau, Manus Province. The charge was under s.229A (1) of the Criminal Code.

Facts

The facts giving rise to the charge are these. You came to know the victim in December 2002, when you took her for the first time to Felix Tonam’s house in Pateku village. There you took her to a room and tried to have consensual sexual intercourse with her. Unfortunately, you did not succeed because your penis could not penetrate her vagina. Thereafter however, between April and August 2003, you took her to the same place about five times and successfully had sexual intercourse of her with her consent. This could have continued but for the victim’s father’s intervention.

There is no evidence, of any physical or other injury because of the sexual penetrations of her. There is also no evidence of anything being done to compensate the victim and her relatives. You do not speak of any plans to do something about it in terms of compensating her for taking her virginity away, going by the evidence that you had difficulty and could not sexually penetrate her in December 2002, when you tried to do that.

"229A. Sexual penetration of a child.

(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."

This provision was introduced by an amendment introduced in 2002 by s. 15 of the Criminal Code (Sexual offences and Offences Against Children) Act 2002. Its predecessor was s. 216 of the Criminal Code, which read:

"216. Defilement of girls under 16 and of idiots.

(1) A person who-

(a) has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or

(b) ...

Penalty: Imprisonment for a term not exceeding five years."

As your lawyer submitted, Brunton AJ (as he then was) in The State v. Sottie Apusa[1] suggested the following guidelines (from the head notes) for sentencing in this type of cases:

"(1) [A] lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical career and patient, and step-father/uncle relationships."

In The State v. Peter Yawoma,[2] I cited the above case and guidelines and added that where the facts disclose a more serious case, as rape, a further reduction of the maximum prescribed sentence is inappropriate. I repeated that in the other subsequent case of The State v. Attiock Ishmel.[3] At the same time, I noted in The State v. Jason Dongoia,[4] that the usual purposes of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her.

In some other judgments, as in The State v. Damien Mangawi,[5] I noted also that, the international community as well as our own community is repeatedly calling for the greater protection of children given their vulnerability and defenseless. Parliament considered this very serious and responded appropriately by amending the Criminal Code, and introduced s. 299A.

In The State v. Peter Lare,[6] I dealt with a case of sexual penetration of a girl under 16 under the new s. 299A of the Criminal Code. There, I repeated the above observations and noted as follows:

"This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against ...children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335."

...

No doubt, Parliament [was] ... aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and reenacted offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena".

In the case cited, the prisoner pleaded guilty to a charge under s. 229A. That was in circumstances in which subsections (1) and (2) applied. The victim was under 12 years old and was the prisoner’s adopted daughter. Besides, the offender was an older man married with two wives and father of a number of children. He had sexual intercourses with the victim for over four years and infected the victim eventually with a sexually transmitted deceased. Taking this and other factors into account, I imposed a sentence of 20 years to serve both as a deterrent and punishment for the prisoner’s actions.

Your Case

For the purpose of a sentence in your case, I note you are aged 22 now 21 at the time of the offence. One of your parents is alive while the other is deceased. You have entered the formal education system but have not proceeded any further and have returned to your village. You live a village subsistence style of dwelling with no formal employment.

You pleaded guilty to the offence saying the victim was your girl friend and that you had the sexual offences consensually. Additionally, you said these acts of sexual intercourse with the victim did not result in any physical injury to the victim.

I take all of these factors into account in your mitigation. Then against you, I note there a number of factors. Firstly, although it is true that this is the first ever formal charge and conviction for the kind of offence you committed or any other, I note you committed the acts of sexual offence against a very young girl, about 6 years younger than you were and you repeated that act more than once. Therefore, you committed the offence that number of times.

In The State v. Peter Lare (supra), I noted that where a person repeats the commission of an offence, he is not necessarily a first time offender but a repeat offender. I made similar observations in The State v. Kenny Reuben Irowen (24/05/02) N2239. My brother Justice Jalina did likewise in The State v. Amos Kiap (19/03/3) N2452. In both these cases, the Court imposed the maximum prescribed sentences of 7 years in cases of grievous bodily harm.

The other factor against you is the fact that sexual offences against children have not declined. They are on the increase and Parliament has considered this much serious that it decided to increase the penalty from a previous five years maximum to twenty-five years now. This means that, whatever sentence this Court ultimately decides upon must reflect the fact that Parliament increased the penalty for the reasons already given.

Additionally, although you said sorry for having committed the offence, you did not produce any evidence of having demonstrated how remorseful you are by say for example, paying compensation or any thing like that. The Supreme Court in Rudy Yekat v. The State[7] had a similar situation. There, the Court observed and said:

"There is no evidence of the Appellant compensating the victim and or her family in any way for the pain and suffering he brought upon them. He says sorry but what value does a mere utterance of sorry has if it is not accompanied by anything tangible to correct the wrong brought upon the victim and her family and relatives. In our view such utterance are mere utterances, which do not have any real meaning but spoken only in a bid to plead for mercy."

I find this also to be the case, in your case. It means therefore that, your mere utterances of sorry in Court to the exclusion of the very people you have offended against is meaningless and of no value to you.

Following on from the above, I note that, you committed the offence during a time when you claim the victim was your girlfriend. When people enter into a relationship or friendship as in your case, a position of trust between them develops. It is normally, expected that one of them will not exploit the other if they are sincere with each other. In the case of a boyfriend/girlfriend relationship, it does not give the license to one of them to exploit the other sexually. However, they enter into such a relationship to explore the prospects of marrying and sharing the rest of their lives as husband and wife together. This is why the Christian churches teach against pre-marital sex. This principle is also a traditional virtue for most of PNG societies. Upon independence, they became part of the foundation on which the country stands through the Constitution. You acted against this principle and traditions.

Weighing both the factors for and against you and taking into account your personal background as put to this Court by your lawyer, I find that you do not deserve the maximum penalty of 25 years imprisonment. I am instead, of the view that, a sentence less than that is warranted. I consider a sentence of 6 years imprisonment in hard labour less the time you already spent in custody, awaiting your trial and this decision appropriate. Accordingly, I impose that sentence against you less the time you already spend in custody awaiting your trial and sentence. A warrant of commitment in those terms shall issue forthwith.
________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: The Public Solicitor

^[1] [1988-89] PNGLR 170.
^[2] (19/01/01) N2032.
^[3] (12/10/01) N2294.
^[4] 13/12/00) N2038.
^[5] (13/06/03) N2419.
^[6] (20/0504) N2557.
^[7] (22/11/00) SC665.