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State v Sorari [2004] PGNC 213; N2553 (29 April 2004)

N2553

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 380 of 2004

THE STATE

-V-

KIDDI SORARI

WEWAK: KANDAKASI, J.
2004: 22nd and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Unlawful and indecent dealing with girl under 16 years– Abduction of victim and forcefully removing her clothes – Use of weapons - Rubbing fingers on victim’s vagina – Minor grazes under the clitoris of the vagina – Guilty plea by first time young offender – Recent increase on penalty – Meaning of – Past sentences not deterring – Need to reflect that – 5 years sentence imposed – Criminal Code ss229B (1) (4).

Cases cited:

The State v. Sottie Apusa [1988-89] PNGLR 170.
The State v. Peter Yawoma (Unreported judgment delivered on 19/01/01) N2032
The State v. Moki Lepi (No 2) (Unreported judgment delivered on 22/07/02) N2278.
The State v. Joseph Minjihau (Unreported judgment delivered on 26/05/02) N2243.

Counsel

P. Kaluwin for the State
P. Kumo for the Accused

29th April, 2004

KANDAKASI J: You pleaded guilty to a charge presented against you under s. 229B (1) and (4) of the Criminal Code for unlawfully and sexually touching and dealing with a girl aged 6 years old.

Facts

The facts as they appear from the depositions and put to you during arraignment are these. On 10th February 2004, the victim of your offence (named) then aged 6 was walking with her sister to the village. You approached them, held them up with a knife and took the victim into the nearby bushes. There you slapped her on her face and removed her trousers, then proceeded to rub your fingers on her vagina and tried as you did, to push your finger into her vagina. She cried in pain and about this time, she came to the victim’s rescue and fortunately the other girl alerted the victim’s mother and you ran away.

The Offence and Sentencing Trend.

What you did was against the law, in particular, s. 229B (1) (4) of the Code. These provisions read:

"(1) A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years;

...

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years."

Section 11 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) repealed and replaced its predecessor s. 216 of the Code. The maximum sentence prescribed then was 5 years subject to s.19 also of the Code. The only reported case on point is the case of The State v. Sottie Apusa [1988-89] PNGLR 170. Your lawyer did draw the Court’s attention to that case. The only addition to that, as far as I am aware, is my judgment in The State v. Peter Yawoma (Unreported judgment delivered on 19/01/01) N2032.

In The State v. Sottie Apusa (supra) case, the offender, a stepfather had sexual intercourse with his stepdaughter six times over four months. He pleaded guilty to a charge under s. 216 (1)(a) of the Code and was imprisoned for three (3) years and two (2) months in hard labour. At the same time, the Court set out some guidelines for sentencing in unlawful carnal knowledge cases. Those guidelines are best summarised in the following terms, which appear in the head note to the judgement:

"(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."

I referred to these guidelines in my judgement in The State v. Peter Yawoma (supra). I then noted that, there were other cases on unlawful carnal knowledge. However, these involved girls under the age of 12 or, the offences have been committed against the course of nature, or that they have been committed in association with other offences. I therefore said in that case that, strictly speaking, those other cases could not be of any help. Up to this time, what is left is the guidelines set out in the Sottie Apusa case. In Peter Yawoma, I suggested an addition guideline for sentencing in these kinds of cases. The suggestion was that, if the facts of a case reveal a more serious offence such as rape, it would warrant the maximum prescribed sentence. After having said that, I found myself constrained to give a sentence of 2 years, for what was in fact a rape case, because his co-accused received a similar sentence under s. 216.

As I noted in The State v. Moki Lepi (No 2) (Unreported judgment delivered on 22/07/02) N2278, the kind of offence you committed are on the increase. In some cases, it is actual unlawful carnal knowledge against helpless little children. Before that in The State v. Joseph Minjihau (Unreported judgment delivered on 26/05/02) N2243, I sentenced an elderly married man with children to 5 years imprisonment in hard labour. His offence was committing unlawful carnal knowledge of a girl under the age of 16 years contrary to the then s.216 of the Code, where the maximum prescribed penalty was 5 years imprisonment. In so doing, I noted that such offences were on the increase and that stiffer penalties were now called for to deter other would be offenders from offending.

The recent amendments to the law, resulting in an increase in the penalty confirms, in my view, the need for an increase in the kind of sentences imposed up to the date of the amendment for the protection of our today’s children for leaders and citizens of tomorrow.

Address on Sentence

The Court administered your right to address it on your sentence. You decided to leave it all to your lawyer. Your lawyer informed the Court that you are 14 years old and reached up to grade 3 education. You belong to the Anglican Church and that you come from the Kiorota village, here in the Oro Province, the same village where the victim comes from.

Your lawyer also informed the Court that you were arrested and kept in custody since 19th February 2004. You have no prior convictions. Although, you did not cooperate with the police by fully admitting the commission of the offence, you pleaded guilty to the charge in Court. That spared the victim the trouble and pain of coming into Court and testifying against you.

At the same time, your lawyer rightly noted that, you used a bush knife to commit the offence. Also, you were much older than your victim was. He also correctly drew the Court’s attention to the The State v. Sottie Apusa (supra) case.

Decision On Sentence

From your lawyer’s submission, I find there are a few factors in your mitigation. Firstly, you have no prior conviction. This means you have not been in trouble with the law before. This is the first ever offence you committed and convicted on your guilty plea. Secondly, you pleaded guilty to the charge. I accept that this prevented the victim from coming into Court and relive the bad memories by testifying against you.

Another factor that might operate in your favour is the fact that the victim did not suffer any serious injuries apart from the minor grazes she suffered to her vaginal area. Nevertheless, I note that numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. However, the situation is not the same here. Such specialist medical services are almost non-existent. I made a brief reference to that in The State v. Peter Yawoma (supra) case. This means victims of such offences in our country have no assistance at all. Therefore, the fact that the victim in this case suffered no physical harm does not necessarily operate in your favour.

Against the factors in your favour is the fact that this was in fact an act of abduction and attempted rape. You used a dangerous weapon to commit the offence. You have not paid any compensation and have certainly not expressed any remorse either in Court or to the victim of your offence and her relatives. Further, it is clear that both you and the victim come from the same place. It therefore seems you committed this offence in breach of a de facto trust in you. That trust was in terms of not expecting the kind of attack and offence you committed against your victim and her relatives. As I said in a number of cases already, for example as in The State v. Joseph Minjihau (supra), there is more than enough danger outside the family and village circles. When that is the case, it is the villages and the homes where a young vulnerable child could find some peace and security. Hence, where a relative or a fellow villager commits an offence against one of his or her own, it corrodes into the very fabric of the society.

In addition, you committed an offence that is prevalent and against a very young person. Parliament has confirmed this by amending the law and increased the penalty by more than half its earlier prescription to 12 years. This means the previous sentences under the old provisions failed to deter other would be offenders like you from committing offences against children. Accordingly, the Court is now under an obligation to impose sentences that reflect the expression of Parliament.

Finally, I note your personal and family backgrounds and the impact any sentence may have on you and your family. You have not placed any argument or material before the Court that dictates a sentence that is more lenient and away from the prison system.

Taking into account all of the factors both for and against you, I find that the factors against you far outweigh those in your favour. Nevertheless, I note that the number of attack and extend of injury or exploitation is not as serious as in the cases discussed above. I therefore consider a sentence of 5 years is appropriate. Accordingly, I impose that sentence against you, less the two months and 10 days you have already spent in custody. I order that you serve the balance of 4 years 9 months and 20 weeks in hard labour at Biru Correction Service.
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Lawyers for the State: The Public Prosecutor

Lawyers for the Prisoner: The Public Solicitor