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State v Lumou [2004] PGNC 107; N2684 (23 September 2004)

N2684

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1642 of 2003

THE STATE

-V-

KEMAI LUMOU

LORENGAU: KANDAKASI, J.
2004: 17th and 23rd September

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – No physical injuries - Facts disclose case of rape – Offence committed in breach of trust as uncle – Conviction after trial – First time offender – Aggravating factors outweighing those in mitigation – 17 years imposed - Sections 229A of Criminal Code.

Cases cited:
The State v. Peter Lare (20/05/04) N2557.
The State v. Peter Yawoma N2032.
The State v. Nivi Araba (22/04/99) N1849.
The State v. Damien Mangawi (13/06/03) N2419.
The State v. Dii Gideon (05/03/02) N2335.
The Secretary for Law v. Kwauga [1974] PNGLR 135.
The State v. Bernard Konombo (21/11/97) N1742.
The State v. Louise Paraka (24/01/02) N2317.
James Mora Meaoa v. The State [1996] PNGLR 280.
The State v. Eddie Peter (No 2) (12/10/01) N2297.
Gimble v The State [1988-89] PNGLR 271.
The State v. Paul Maima Yogol & Anor (21/05/04) N2583.
Rudy Yekat v. The State (22/11/01) SC665.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Lucas Yovura (29/04/03) N2366.
The State v. Kenneth Penias [1994] PNGLR 48.
Seo Ross v. The State (30/04/99) SC605.
The State v. Donald Poni (32/09/04) CR 552 of 2001.

Counsel:

A. Kupmain the State.
A. Raymond for the Prisoner.

23rd September 2004

KANDAKASI J: On Friday 17th last week, this Court found you guilty on one charge of sexual penetration of a girl under the age of 16 years. You committed the offence against the victim (named) a niece to you on 02nd June 2003 at your village of Karun, Lorengau, Manus Province.

According to the evidence, the Court decided to accept following the trial, the victim was heading for her school, then, doing grade 6 primary school at the village school. You had gone ahead of her and hid amongst some bamboo until the victim got to where you were. When she turned up, you jumped on her, grabbed her, and tried to take her into the nearby bushes. As you did that, she tried to shout for help but you threatened to cut her with a bush knife and shut her month, thereby effectively preventing her from calling for help. You then proceeded to hold onto her breasts and asked her to remove her clothes, which she did not do. Therefore, you removed her short and pushed her onto the ground. As she was on the ground, you pulled your short up, pulled your penis out, inserted it into her vagina, and proceeded to have sexual intercourse with her until you satisfied yourself.

After having helped yourself, you told the victim to go to her school and come back to you later after school and you will tell her a secret. The victim instead, cried to her aunt who asked her to follow her to the school. However, because of what you did to her, she told her aunt that she could not go to school. So, her aunt took the victim to her younger aunt who took her to the hospital.

The victim identified you as an uncle on her mother’s side. You tried to demonstrate that that relationship was remote, when you went into evidence. However, in your address before sentence, you spoke of looking after the victim’s grandmother who is very sick and depends on you for her survival. You also tried to show that, the victim was 17 years old at the time of the offence despite her doing grade 6 primary school and other evidence including her physical appearance showing her as a girl of very tender age and well below the age of 16. The Court found that the victim was indeed under the age of 16 and accepted her evidence that she was 14 years old at the time of the offence.

On these facts, I found that, you in fact committed the offence of rape upon the victim who was a very close relative of yours. I also found that, of the two of you, you were much older than the victim was, with an age difference of 8 years.

The State however, had you charged with sexual penetration of a girl under the age of 16 years contrary to s. 229A (1) of the Criminal Code instead of rape under s. 347 of the Code. Accordingly, you were convicted on the charge actually presented against you.

The Offence and Sentencing Tariff

Section 229A of the Code creates and prescribes the penalty for the offence of sexual penetration of a girl under the age of 16 years in the following terms:

"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.

(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."

This was a new provision introduced by s. 15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) by way of an amendment to the Code. As I noted in The State v. Peter Lare (20/05/04) N2557, this change in the law came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against children. That concern is both PNG and a worldwide one because the victims of such offences are vulnerable and are not able to defend themselves. I noted also that, in enacting this provision and its penalty in this way, Parliament considered that a sexual offence against a female child under the age of 16 years very serious. They are the country’s future leaders and people of tomorrow. In that context, I noted further that, it is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories even though there might be no obvious physical injury. This is a serious factor in PNG because, unlike countries like Australia, there is no readily available specialized medical services to help the victims to recover from the effects of such crimes against them: The State v. Peter Yawoma N2032 and The State v. Nivi Araba (22/04/99) N1849.

At the same time, I noted that these changes in the legislation also represent 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: see for example The State v. Damien Mangawi (13/06/03) N2419 and The State v. Dii Gideon (05/03/02) N2335.

I then reviewed the kind of sentences imposed prior to the introduction of the changes and noted that there were not many such cases published in the unreported or reported series of the PNG law reports. This does not mean that, the incidents of this offence are few. There are many cases, but not many of them get published.

Of those published, one of the earliest reported cases I noted was, The Secretary for Law v. Kwauga [1974] PNGLR 135. There the trial judge imposed a sentence of 2 years, which was on appeal increased to 4 years, as the appeal court considered the sentence imposed by the trial judge was too low. In that case, the respondent was 30 years old while the victim was between eight and nine years old. He led the victim away and had sexual intercourse with her. The victim suffered some internal lacerations and bled because of that and had difficulty walking. The respondent also had a prior conviction for a similar offence, which did not deter him.

Then I noted that, about 20 years later, in The State v. Bernard Konombo (21/11/97) N1742, the National Court imposed a sentence of 4 years. In that case, the prisoner had three separate acts of sexual intercourse with a nine-year-old girl. However, he was charged with only one count of unlawful carnal knowledge of a girl under 12 years. He also had a prior conviction on a similar offence before.

About two years later from the date of the above judgment, in The State v. Nivi Araba (supra), the Court imposed a sentence of two years. In that case, the victim went to a river to take her bath. The prisoner who had also gone there on seeing the victim there, he approached and carried her away into the nearby bushes and forcefully had sexual intercourse with the victim. The victim suffered laceration injuries to her vagina and suffered some bleeding in the consequence.

The final and more recent judgment is my judgment in The State v. Damien Mangawi (supra), where I imposed a sentence of 12 years, following a charge brought under the old s.213 of the Code. There, the victim was aged 3 years old and the prisoner was 16 years old. The victim was a niece to the prisoner. He forcefully had sexual intercourse after taking her away from the village. The victim had difficulties passing out urine because of injuries to her vagina.

At the end of that exercise, I imposed a sentence of 20 years against the prisoner, Peter Lare. In so doing, I noted that the prisoner repeatedly had sexual intercourse with the victim a girl under the age of 16 years for over four years and infected her with a sexually transmitted deceased. There was a substantial age difference and that the prisoner committed the offence in breach of a trust placed in him as an adopting father. Further, I noted that, he did not pay any compensation or do anything like that to express his remorse and try to appease the wrong he had committed. I found that these factors far outweighed his guilty plea and claims of being a first time offender.

In arriving at that sentence, I took the view that, 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. In that regard, I noted that, 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 the offence in the terms it is now in, in terms of 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.

At the same time, I accepted that Parliament vested the Courts with discretion under s. 19 of the Code to impose a sentence lower than the prescribed maximum in appropriate cases. That does not mean however that, the Courts should ignore the prevailing circumstances and the community’s desire to prevent it, if not eradicate such serious offences against children, evidenced by the re-emphasis placed on the offence by Parliament. The Courts therefore, have a duty to ensure that the sentences they decide to impose do reflect the wishes of the community, the harm done to the victim, the need to deter other would be offenders and to help rehabilitate the offender.

I restated in the Peter Lare (supra) case and do so again here what I said in The State v. Louise Paraka (24/01/02) N2317:

"...[T]he Court is under an obligation to take note of all developments, if any, in the incident or the kind of offence under consideration. If there is a decline in the offence, it could mean amongst others that the past sentences have been effective. If however there is an increase in the number of the kind of offence under consideration, it means the opposite. When such is the case, then the sentences previously imposed must be reviewed with a view to increasing the sentences."

With all of the foregoing in mind, I now turn to consider a sentence in your case.

Sentence in Your Case

I first note that you have only one factor in your favour. That is the fact that, this is your first ever offence. That means you have not been in trouble with the law or anybody else before. Therefore, this is your first ever time to have committed an offence, being charged and convicted of an offence. You have thus, lived a good law abiding life until the commission of this offence.

Against the only factor in your favour are many factors in aggravation. Firstly, you denied the charge. That forced the victim, your niece to come and relive the crime you perpetrated against her. She was in that way forced to come into Court and describe your forceful acts of sexual intercourse with her. Given that people in our society do not freely talk about such things as sex, you put her under a lot of unnecessary pressure and shame to come to Court and testify against you.

Secondly, the victim was a close relative of yours. You tried successfully to hide that but eventually it all came out when the victim testified against you and you addressed the Court on your sentence. You therefore committed the offence in breach of a trust that exists between close relations.

Both this Court and the Supreme Court have clearly stated that an offence committed in breach of a trust renders the commission of the offence serious. The Supreme Court in James Mora Meaoa v. The State [1996] PNGLR 280, made that clear. In so doing, it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentences. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. I have adopted and applied this principle in a large number of cases, an example of which is, The State v. Eddie Peter (No 2) (12/10/01) N2297.

Thirdly, you used a bush knife and your physical force to secure the forceful sexual penetration of the victim. Many cases have repeatedly stressed the fact that, where an offender uses a bush knife or such other weapons to commit an offence, it becomes a serious matter. As such, it is a factor in aggravation: Gimble v The State [1988-89] PNGLR 271 and The State v. Paul Maima Yogol & Anor (21/05/04) N2583.

Fourthly, you committed the offence against a small pupil who was on her way to her school. Small schoolchildren should be free to go and return from their schools. Indeed, as noted, the recent change in the law is aimed at protecting these group of our people from people like you. This is necessary because small children of today are our countries future leaders and citizens. If we do not look after them and abuse them, we are destroying our own future as a community, a province and a country. Despite the efforts both locally and internationally made to protect them, people like you continue to pick on them and commit serious crimes like the one you committed against your niece. Your act was in direct contempt of the efforts aimed at protecting little children.

Another factor that goes in line with the foregoing factor is the fact that you were 22 years old at the time of the offence, while the victim was only 14 years old. Hence, there was a huge age difference of 8 years. Given that, you were in a better position to know that you could not have a sexual relationship with the victim who was your niece. You were also in a better position to know that, what you set out to do was wrong. Despite that, you went ahead and committed the offence. You tried to cover up your actions by claiming that the victim was your girlfriend and that, she agreed to have sex with you at the time of your commission of the offence.

Finally, there is no evidence of you having said sorry to the victim and her relatives. You have not paid any compensation or approached the victim and her relatives and paid for your offence. Instead, you maintained your claim of having consensual sexual intercourse with the victim who you claim was aged 17 at the time of the offence and that she was your girlfriend. None of these claims were established by any evidence from you. Instead, the evidence negates all of these claims.

In this regard, it seems you were not genuine when you said sorry. Numerous case authorities say that where a prisoner merely says sorry in Court without any thing tangible such as compensation, such mere expression of sorry or remorse means nothing: See for example Rudy Yekat v. The State (22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000; and The State v. Lucas Yovura (29/04/03) N2366.

In weighing the factors both for and against you, I note that the factors in aggravation far outweighs your only factor in mitigation. In such a case, the maximum prescribed sentence or one closer to that may be imposed. Injia J. (as he then was), applied that principle in The State v. Kenneth Penias [1994] PNGLR 48. The Supreme Court approved an application of that principle in Seo Ross v. The State (30/04/99) SC605.

Given that, I note, there is nothing preventing an imposition of the maximum prescribed sentence of life imprisonment, except for you being a first time offender. In the circumstances, I consider a deterrent sentence is appropriate but not necessarily the prescribed maximum. I am of that view purely, because of the fact that there is no evidence of any physical injuries or you infecting the victim with a sexually transmitted decease. Your sentence must however be on par with an aggravated rape case sentence. Such sentences, I note exceed 15 years and are in the vicinity of 15 years and 18 years as I have recently covered in the case of The State v. Donald Poni (32/09/04) CR 552 of 2001. Accordingly, I impose a sentence of 17 years in hard labour less the time you have already spent in custody awaiting your trial and sentence. An appropriate warrant of commitment in those terms shall forth with issue in favour of the Lorengau Correction Service.

In arriving at the above sentence, I have of course taken into account your personal details, family background, and the effect of any long prison term on them. In so doing, I noted that there is ample authority for the proposition that the possible effect of a prison term on an offender’s personal and family backgrounds and needs is a natural consequence of choosing to commit the offence. As such, it cannot be a factor for consideration in the offenders’ favour: The State v. Lucas Yovura (supra).
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor