State v Soumi [2005] PGNC 150; N2809 (22 March 2005)

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CRIMINAL LAW – indictable offence – Criminal Code, Division IV.2A Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – offender aged 30 years, child aged 14-15 years – offender married to complainant’s older sister – consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – whether existing relationship of trust, authority or dependency – two separate incidents – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence –– sentence of two years – one year must be served – balance of one year may be suspended on application to the National Court.

Public Prosecutor v Don Hale (1998) SC564
The State v Eddie Trosty (2004) N2681
The State v Kemai Lumou (2004) N2684
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Lare (2004) N2557

This is a decision on the sentence for a man who pleaded guilty to two counts of engaging in an act of sexual penetration of a child under the age of 16 years, his sister-in-law.

The incident giving rise to the charge took place at Barikua village, Solos, Buka Island, Bougainville, on 28 December 2003.

On 17 March 2005 he was brought before the National Court and faced the following indictment:

First count: Titus Soumi of Barikua village, Solos, Buka Island, Bougainville, Papua New Guinea, stands charged that he ... on the 28th day of December 2003 at Barikua village ... engaged in an act of sexual penetration with Mathilda Koupan [the complainant] a child under the age of 16 years and that at the time of the unlawful act of sexual penetration there was an existing relationship of trust between Titus Soumi and [the complainant].

Second count: Titus Soumi ... stands charged that he on the 27th day of March 2004 at Barikua village engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years, and that at the time of the unlawful act of sexual penetration there was an existing relationship of trust between Titus Soumi and [the complainant].

The indictment was presented under Section 229A of the Criminal Code. The term ‘complainant’ is used in this judgment to describe the child, as that is the term used in Section 1 of the Criminal Code to describe a person against whom an offence is alleged to have been committed.

Section 229A is a relatively new law. So I had to be satisfied that the accused was charged under the correct law.

Section 229A was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that its equivalent provisions were Section 213 (defilement of girls under 12) and Section 216 (defilement of girls under 16 and of idiots). Section 213(1) made it a crime to have unlawful carnal knowledge of a girl under the age of 12 years. The maximum penalty was imprisonment for life. Section 216(1) made it a misdemeanour for a person to have or attempt to have unlawful carnal knowledge of a girl under the age of 16 years. The maximum penalty was five years. Sections 213 and 216 were repealed by Act No 27 of 2002.

Act No 27 of 2002 was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.)

The alleged offences in the present case were committed on 28 December 2003 and 27 March 2004, well after the commencement of the new law. The accused has therefore properly been charged under the new law and will be punished, if found guilty, under the new law.

The following allegations were put to the accused for the purpose of obtaining a plea.

At about 9.00 am on 28 December 2003 the complainant and the accused were both staying at Barikua. She went to a river to wash some plates. The accused followed her to the river. He called her into the bush, away from the river, where they had sexual intercourse. The complainant was aged 15. The accused knew that she was under 16. There was an existing relationship of trust in that the accused was married to her elder sister. A similar thing happened on 27 March 2004. At about midday, he had sexual intercourse with the complainant at a spot not far away from her house. He knew she was still under 16.

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I say sorry to the court and to that lady. I know I have done wrong. But it wasn’t my doing, it was the lady’s doing. I ask the court to feel sorry for me. I am married with four children. Two are going to elementary school. The others are also at school. There is nobody else to look after them and pay for school fees. This is my first time in court. I ask the court to feel sorry for me and put me on a good behaviour bond.

During the course of the proceedings, three issues of fact arose that were not brought out clearly in the summary of facts, to which the offender pleaded guilty. These related to the issue of consent, the age of the offender and the age of the complainant.

It is significant that in his summary of the allegations the prosecutor did not mention anything about consent or lack of it. There was nothing wrong with not mentioning it, as lack of consent is not an element of the offences with which the offender was charged. However, it is an important consideration to take into account when determining the sentence. It was something that needed to be clarified, especially as, in his allocutus, the offender indicated that there was consent. Indeed he suggested that the two offences were committed at the instigation of the complainant.

Mr Rangan conceded that there was consent. I note that that is not consistent with the complainant’s police statement that is on file. On the other hand it is consistent with the statement made by the offender to the District Court at his committal hearing. I will act on the prosecutor’s concession. I deal with the case on the basis that there was consent. There is nothing, however, to support the offender’s claim that the offences were committed at the instigation of the complainant.

One of the documents on the District Court file states that the offender was aged 20 when the offences were committed. I find this hard to believe, as he says he is married with four children and the oldest one is aged 10 years. I estimate him to be aged 30.

The prosecutor suggested that the complainant was aged 15 when the offences were committed. But there is material on file to show that she was born on 18 June 1989. I find she was aged 14 years at the relevant time.

Mr Siminji referred to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. The offender was engaged in consensual sex and there was no violence involved. It is true that the complainant was under age, but she was not substantially under age.

Mr Rangan submitted that though intercourse took place by consent it was still a serious matter in view of the age of the complainant and the fact that she was his wife’s sister.

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.

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

The child who was sexually penetrated by the prisoner was over the age of 12 years. So the key issue is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

I find that there was an existing relationship of trust, as the complainant was the offender’s sister-in-law. She was his wife’s younger sister. He was substantially older than her. The relationship is not one of those specifically prescribed by Section 6A(2). But the definition provided by that subsection is not exhaustive. Clearly the sort of relationship that existed in this case is of the type intended to be covered by Section 229A(3).

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

To determine the appropriate penalty I will adopt the following decision making process:

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being deal with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case the starting point is not immediately clear. Section 229A of the Criminal Code is still a new law. There are only a handful of cases in which the National Court has given decisions on the applicable penalty. The Supreme Court has not yet been called on to deal with the matter.

I will summarise the National Court decisions in the table below and then identify a starting point for this case.

No	Case	Details	Sentence
1	The State v Peter Lare, (2004) N2557, Kandakasi J, Goroka	Offender aged 40 charged with one count of sexual penetration – victim, a girl, aged 12 – offender was the girl’s adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to victim – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years
2	The State v Pennias Mokei (No 2), (2004) N2635, Cannings J, Wewak	Offender aged 33 charged with one count of sexual penetration – victim, a girl, aged 13 – offender was the girl’s uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with victim or family since commission of offence.	15 years
3	The State v Eddie Trosty, (2004) N2681, Kandakasi J, Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – victim, a girl, aged 15 – victim was the offender’s girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	6 years
4	The State v Kemai Lumou, (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – victim, a girl, aged 14 – offender was the girl’s uncle – no consent – aggravated physical violence: used bushknife to threaten victim and sexual penetration was forceful – no evidence of physical injuries or infection of victim with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that victim was his girlfriend, aged 17 and sex was consensual – pleaded not guilty: victim forced to relive crime – no evidence of offender saying sorry to victim and her relatives – no compensation attempted – first offender.	17 years

In light of the above cases the starting point I will use for the present case is 6 years.

In Pennias Mokei (No 2) I set out the factors I considered should be taken into account in determining sentence in cases such as this. I have since had the benefit of considering the three judgments of Kandakasi J referred to above. So I will restate the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point. The relevant considerations are:

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the victim is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the victim should also be taken into account. Generally the younger the victim, the more serious the offence. The presence or absence of consent is very important. Absence of consent is not an element of the offence. So, as in Eddie Trosty’s case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bushknife, as in Kemai Lumou’s case) is used or if there is aggravated physical violence or physical injury caused to the victim. It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare’s case where the offender was labelled a sexual predator.

Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Taking all the above considerations into account and comparing this case with the four cases referred to above, particularly Trosty, the head sentence in this case should be less than six years. I regard consideration Nos 1 and 7 as serious aggravating factors. However there are strong mitigating factors in Nos 3, 5, 6, 10, 13, 14 and 15. The other factors are either not significantly aggravating (8, 9, 11, 16 and 17) or not significantly mitigating (2, 4 and 12). The mitigating factors significantly outnumber the aggravating factors and their combined effect is to substantially reduce the sentence that would otherwise have applied.

I consider the court must place considerable weight on the fact that the sex was consensual. I gave this careful consideration as the complainant’s police statement clearly states that it was not consensual. However, the prosecution was prepared to concede that there was consent and I have decided the case on that basis. Combined with the age of the complainant, the issue of consent has had an impact on the exercise of my sentencing discretion.

I fix a head sentence of two years imprisonment on each count, to be served concurrently.

This is one of a number of criminal cases in the current Buka circuit where it would have been of assistance to the court to have a pre-sentence report prepared, to ensure that the court has all relevant information to hand to make a just and fair decision on the sentence to be imposed on persons who have been convicted of offences.

Normally such reports are prepared by the Community Corrections and Rehabilitation Service. However, as there is no office of that service on Bougainville, I requested that the Provincial Welfare Officer prepare a report.

No report has been forthcoming for this case, apparently due to resource and time constraints. This is regrettable but understandable. The prisoner has been convicted of a serious offence. In the absence of any written or oral report, and there being no evidence that the people in the community where this offence occurred are willing to forgive or reconcile with or take concrete steps to rehabilitate the offender, I cannot immediately suspend any part of the sentence. (See Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J.)

However, given that I have decided the case on the basis that the offences were committed with the consent of the complainant I will qualify the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour.

The prisoner will be at liberty to, at any time, make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment.

Sentenced accordingly.
___________________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor

National Court of Papua New Guinea

State v Soumi [2005] PGNC 150; N2809 (22 March 2005)